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Update: Stream Access Case in front of the New Mexico Supreme Court

Posted: 11/11/2020
By: Hattie Johnson

In April 2020, American Whitewater Affiliate Club and partner, the Adobe Whitewater Club (AWC), joined New Mexico Wildlife Federation and Backcountry Hunters and Anglers to petition the New Mexico Supreme Court to uphold the constitutional rights of the people to access our public waters, even where they cross private lands. We have been working closely with AWC since the issue arose in the summer of 2019 and you can read more about the evolution of this case here and a much more recent update here. While we wait for a decision from the Supreme Court, the New Mexico Paddlers Coalition - made up of AW, AWC, and New Mexico River Outfitters Association - have been meeting weekly to prepare for our next course of action whether the court rules for or against protecting the public's right to float the state's rivers and streams.


The issue began when the Game and Fish Commission promulgated a rule (19.31.22 NMAC) allowing private landowners to apply with the Commission to find streams and rivers within their property bounds as 'non-navigable'. Some of the same rivers that are included in the New Mexico State Parks Division in their publication "New Mexico Whitewater - A Guide to River Trips". Recently, the attorney representing all of these landowners filed a Motion to Strike due to "apparent fraud on the court".


The motion claimed that the counsel for the petitioners (Adobe Whitewater Club, New Mexico Wildlife Federation, and Backcountry Hunters and Anglers) tampered with public documents from the Attorney General's office. The document in question was written by assistant attorney general, John Grubesic, and voted by the Game and Fish Commission to be released to the public in November of 2019. Grubesic stated in his memo that any language in the rule which attempts "to prohibit access to the public waters of New Mexico" is unconstitutional and unenforceable.


In response to the motion to strike, counsel for the Game and Fish Commission clearly provided to the court that not only was the document in question valid and presented appropriately, but "(t)he Commission has openly provided the memorandum discussed and therefore, the Commission denies any assertions of fraud."


We are hoping for a decision from the court soon and will be ready to respond to protect access to New Mexico's rivers. You can read more about these happenings on Adobe Whitewater Club's website.


Image credit: Scott Carpenter

Jesse Wycko

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