Attorney general cracks down on illegal waterway barriers

Oct. 31—New Mexico's attorney general is suing a landowner who continues to block anglers, kayakers and other recreationists from using a portion of the Pecos River that crosses his property more than 18 months after the state Supreme Court ruled such barriers were unlawful.

In March 2022, the court ruled people have a constitutional right to traverse waterways flowing through private lands — even though the beds belong to the property owners — as long as they don't step onto shore.

Despite the court's decision, which many hoped would settle a contentious conflict, some landowners continue to maintain water barriers, ranging from cables to pipes to razor wire, blocking access not only to their properties but to adjacent public lands.

"The rivers and streams in New Mexico, they belong to everyone," Attorney General Raúl Torrez said Tuesday while standing near a barrier made of metal pipes and barbed wire stretching across the Pecos River. "That's why we're bringing this action; that's why we think it's important."

The lawsuit names one violator, Erik Briones, who placed a fence composed of pipes and concertina razor wire across the Pecos, and refers to several "John Doe" offenders who could be added to the complaint later if they don't remove their barriers.

Torrez said the purpose of his legal action is to persuade the court to issue an order to have Briones remove his barrier, sending a message to other violators to follow suit.

The court also could mete out penalties, such as fining the lawbreakers for each day they fail to take down the impediments, Torrez said. As of now, there are no penalties that can be imposed on those who flout the court's ruling, even if they are charged with creating a nuisance, he added.

Advocates of waterway access applauded the attorney general's crackdown.

"We commend the attorney general for his unwavering commitment to equitable access for all New Mexicans," said Jesse Deubel, executive director of the New Mexico Wildlife Federation. "I recognize that these landowners are not happy with the decision made by the New Mexico Supreme Court. But they [justices] were abiding by the constitution. And we all need to respect that."

Torrez held a news briefing in front of a barrier that Rick Jenkins, 74, a John Doe landowner, erected in the 1990s to ward off what he claims are trespassers, vandals and troublemakers.

Jenkins said he has ignored with the court's ruling because no one in the government has ordered him to remove the fencing from the water.

"I haven't gotten anything from anyone telling me to take it down," Jenkins said. "Until I get a letter, I'm not taking it down because it keeps the animals out, and the people out that don't belong."

Jenkins said he expects to meet with officials from the Attorney General's Office or some other agency who will tell him to remove what he considers a safeguard. When he receives an official order to dismantle it, he'll comply, he said.

"I understand their point of view, too," Jenkins said. "But you're hesitant to take something down that's worked for all these years."

Some stream access supporters have criticized the state Game and Fish Department for what they say is lack of enforcement.

In August, Game and Fish Director Michael Sloane told The New Mexican officers act in an advisory role, explaining to owners the court's decision calls for public access to stream beds. But so far the agency hasn't ordered anyone to remove a barrier.

Sloane insisted Game and Fish is doing enforcement by telling landowners about the legal requirements.

"What the Department does not feel it has the authority to do, due to the lack of clear language around enforcement in the opinion, is to compel landowners to remove any barriers or enter private property and do so themselves," Sloane wrote in an email Tuesday. "The Department does not, and should not, take the decision to enter private property lightly."

It is up to the attorney general to offer guidance on the agency's statutory authority in enforcing stream access on private lands, Sloane added.

Torrez said his office would be glad to provide guidance to Game and Fish about its authority to enforce this law, though he questioned why it would be necessary.

"As I read the Supreme Court decision, it's pretty straightforward and unambiguous — this is not permitted," Torrez said, gesturing at the water barrier.

Game and Fish put itself in a bind by giving landowners "no trespassing" signs after the agency passed the rule — which the court overturned — that barred anglers from wading through private property, Torrez said.

Now the agency must work to fix this problem, he said.

Torrez said he's looking into accusations that at least three wealthy landowners, who had installed unlawful barriers, might have exerted undue influence by donating thousands of dollars to the New Mexico Conservation Officers Association, of which Game and Fish officers are members.

"It was certainly something that has raised concerns with us," Torrez said, "but we still haven't resolved it."

Some also question whether Santa Fe resident Dan Perry who, until recently, had a steel cable impeding access to the Rio Chama on his land, wielded undue influence on Gov. Michelle Lujan Grisham because he, his wife and businesses donated $61,000 to her gubernatorial campaigns.

Both Perry and Lujan Grisham have denied he has received preferential treatment. The Governor's Office declined to answer questions for this story, including her position on stream access.

Sherry Barrett, who chairs New Mexico Paddlers Coalition, said she appreciates the attorney general's efforts and hopes to see all the illegal barriers gone.

Not only have they kept people from rafting and kayaking a beautiful stretch of the Pecos for many years, they are dangerous, Barrett said.

Some landowners on the Pecos incorrectly believe the river belongs to them, Barrett said. They have signs that say "Private River" and "Don't Tread on My Front Yard," she said.

In the past month, one owner made a waist-high barrier several feet higher, adding barbed wire and an A-framed structure with steel pikes jutting at downward angles.

Standing on a bridge overlooking the jagged obstacle, Barrett found it a disturbing sight.

"This could be deadly in high water," she said.