Heinrich urges repeal of limited waterway access

Jun. 5—U.S. Sen. Martin Heinrich is urging the New Mexico State Game Commission to reject five landowners' requests to certify waterways crossing their properties as nonnavigable and closed to the public, arguing it would be unlawful.

The commission should reject the applications when they review them at a June 18 hearing, Heinrich wrote in a letter, contending that barring the public from any waterway goes against a state Supreme Court ruling.

The high court's 1945 Red River Valley ruling states that even small waterways are fishing streams that members of the public have a right to use as long as they don't trespass on the land or along the shore, Heinrich wrote.

"The rule leaves no room for the commission to give wealthy private landowners control over every stream, river and watercourse in New Mexico," Heinrich wrote. "And doing so would violate longstanding principles of New Mexico law."

A commission representative couldn't be reached for comment.

The commission is a seven-member citizens' body that sets hunting and fishing regulations, hires the Department of Game and Fish director, oversees spending of a $35 million yearly budget and sets the agency's overall direction.

In 2017, the commission passed a rule under the Gov. Susana Martinez administration saying property owners could bar access to waters flowing on their lands if they are deemed nonnavigable.

The state Supreme Court will hear a case to decide the legality of the rule.

Not only does this rule run counter to the state constitution, Heinrich wrote, but it would affect most New Mexico waterways, which are not navigable by the official definition.

Whether they flow continuously, seasonally or only after rainfall, few of the state's waterways are navigable, Heinrich said.

That was why a rule the U.S. Environmental Protection Agency issued last year, limiting federal protections to only navigable waters, was contentious. It would exclude almost all of New Mexico's waters.

Even the Rio Grande is not navigable because it can't support waterborne commerce, Heinrich wrote.

He noted the Supreme Court in the Red River Valley case referred to a section of the state constitution that states: "The unappropriated water of every natural stream, perennial or torrential, in the state of New Mexico is hereby declared to belong to the public."

Denying the applicants' requests to bar waterway access won't prevent them from resubmitting the requests if the high court should ever overturn or narrow the Red River Valley ruling, Heinrich wrote.

But until the court makes such revisions, the commission must not deny the public its constitutional right to enjoy access to waters that flow across private land, Heinrich argued.