WASHINGTON - U.S. Senator Martin Heinrich (D-N.M.), a member of the Senate Energy and Natural Resources Committee, is urging the New Mexico State Game Commission to deny pending applications from landowners seeking state certifications that rivers crossing their property are non-navigable and therefore closed to the public.
In a letter to the Commission today, Senator Heinrich writes that if the Commission were to grant the applications to deny public stream access it would open the door to giving “wealthy private landowners control over every stream, river, and watercourse in New Mexico, and doing so would violate longstanding principles of New Mexico law."
Senator Heinrich is a long-time advocate for preserving New Mexico surface waters for recreational, wildlife, and environmental uses, and supports legal interpretations of past New Mexico Attorneys General affirming the importance of our public waters. The New Mexico Constitution expressly provides that rivers, streams, and lakes in New Mexico “belong to the public.” For 75 years, the New Mexico Supreme Court has recognized the public’s right to recreate, fish, and use these waters, including waters that flow through private lands.
However, in 2017, in the last days of the Martinez administration, the State Game Commission passed a rule allowing landowners to prohibit public access to waters flowing on their lands if the waters are “non-navigable.” Not only is the rule contrary to the state constitution, it impacts the vast majority of New Mexico’s streams which – whether they flow all the time, intermittently, or just in response to rain events – are not “navigable.” The commission’s rule has upended anglers’, boaters’, and other recreationists’ right to access public streams, putting a halt to activities that have long been enjoyed by New Mexicans throughout the state, and drawn visitors from both near and far, contributing to our outdoor recreation economy.
The legality of the commission’s rule is before the state Supreme Court in Adobe Whitewater Club of New Mexico, et al. v. Grisham, et al. (N.M.S. Ct. No. S-1-SC-38195). In April 2020, Senator Heinrich and former U.S. Senator Tom Udall filed an amicus, or “friend of the court,” brief before the New Mexico Supreme Court to defend New Mexicans’ right under the state constitution to access public surface waters.