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New Mexico Boaters ask NM Supreme Court to Overturn Non-Navigable Waters Rule

Posted: 03/15/2020
by Hattie Johnson

American Whitewater has been working with an outstanding coalition of conservationist and recreationist in New Mexico to challenge a 2018 Game and Fish Commission rule that allowed landowners to certify streams on their property as non-navigable and threaten criminal trespass.

With the pro-bono support of Santa Fe based lawyer, Gene Gallegos, our affiliate club, Adobe Whitewater Club, New Mexico Wildlife Federation and New Mexico Chapter Backcountry Hunters and Anglers filed a petition to the New Mexico Supreme Court to invalidate this rule. The petition in full can be found here. We are committed to supporting our colleagues in this case and will continue to update you on the progress.

The petition was filed on Friday, March 13. It ask the Supreme Court to overturn the Commission rule (19.31.22 NMAC) and to protect the public's right to access the unappropriated water of every stream in the state as protected by the state constitution, the 1945 landmark case State ex rel. State Game Commission v. Red River Valley Co., and the opinion of three prior Attorneys General.

We got involved in overturning this rule in July when, along with this coalition, we asked the Commission to repeal the rule. At their subsequent meeting, the commissioners voted to institute a 90-day moratorium on the rule and to hear no new "non-navigable certification" applications while the Attorney General's office provided an opinion on the constitutionality of the 2018 rule.

After some pressure from the public - thank you to those who sent in letters - the Commission voted to release an attorney-client privileged letter written by Associate Attorney General, John Grubesic. The letter concluded that any language in the game commission's non-navigable rule that attempted to prohibit access to the public waters of New Mexico is unconstitutional and unenforceable.

In another interesting twist, New Mexico Game and Fish Director, Michael Sloane filed a petition against his employer, the Game and Fish Commission, asking the court to declare whether, and under what circumstances, a landowner may prohibit members of the public from accessing waterways that flow through the landowner's property. That means the Director, represented by top lawyers from Governor Lujan-Grisham's staff will be suing his employer who is represented by the Attorney General's office. The same office which described the rule that stated the following:

"The constitution does not allow an interpretation of 19.31.22 NMAC that would exclude the public from using public water on or running through private property for recreational uses if the public water is accessible without trespassing on private property."

We are proud to support our friends in New Mexico in protecting their right to their streams and rivers and will keep you updated as things unfold. 

American Whitewater
Hattie Johnson
Phone: 970-456-8533