New Mexico Legislature Passes Bill Restricting Access to Public Streams

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Jim Beers, retired Refuge Manager, Special Agent, & Wildlife Biologist U.S. Fish & Wildlife Service

Jim Beers, retired Refuge Man­ag­er, Spe­cial Agent, & Wildlife Biol­o­gist U.S. Fish & Wildlife Ser­vice

The fol­low­ing arti­cle caught my eye this morn­ing.  Since it invit­ed com­ments at the end, I shared my com­ments with them and they fol­low the arti­cle.  Jim

 

Anglers could be for­bid­den to wade in waters that run through pri­vate prop­er­ty.newmexicoOn March 20 the New Mex­i­co Leg­is­la­ture passed a bill by a 32-to-31 mar­gin that aims to restrict the public’s access to water­ways that run through pri­vate prop­er­ty. As it stands, the pub­lic can canoe, fish, and wade in “non-nav­i­ga­ble pub­lic water” that pass­es through pri­vate prop­er­ty as long as they don’t leave the streambeds and tres­pass on the sur­round­ing lands. But the bill, SB 226, if signed into law by Gov­er­nor Susana Mar­tinez, would for­bid anglers and the gen­er­al pub­lic from using these streams unless grant­ed writ­ten per­mis­sion from landown­ers whose prop­er­ty through which the waters pass. It’s spec­u­lat­ed that the bill would affect 30 per­cent of pub­lic streams in the state.

As The Albu­querque Jour­nal reports, the bill seeks to over­turn an opin­ion issued in 2014 by the state’s for­mer attor­ney gen­er­al, Gary King. King’s remarks were in favor of pub­lic stream access and spoke out against ranch­ers and (more sur­pris­ing­ly) fish­ing lodges seek­ing to claim streambeds as part of their prop­er­ty.

The arti­cle notes:

King’s opin­ion relied on water law estab­lished when New Mex­i­co was still a ter­ri­to­ry and reit­er­at­ed in the state con­sti­tu­tion, that water in nat­ur­al streams belongs to the pub­lic.

It also cit­ed a 1945 state Supreme Court opin­ion estab­lish­ing the right to fish from a boat on the Con­chas Dam reser­voir, which was bor­dered by pri­vate land.

But King’s opin­ion reversed decades of tra­di­tion and prac­tice, and it’s at odds with state Depart­ment of Game and Fish (NMDGF) reg­u­la­tions that require writ­ten per­mis­sion to be on stream and riv­er bot­toms locat­ed on pri­vate prop­er­ty.

King’s opin­ion sparked landown­ers to push for the bill, the votes for which were cast along par­ty lines, with Democ­rats opposed and Repub­li­cans in favor. Only one Repub­li­can vot­ed against the bill, claim­ing that its stip­u­la­tions would be impos­si­ble to enforce and are alto­geth­er unrea­son­able.

A con­ser­va­tion group called The New Mex­i­co Wildlife Fed­er­a­tion asserts that one of the great­est prob­lems with the bill is that it would give the NMDFG author­i­ty to decide which streams are nav­i­ga­ble and thus open for pub­lic recre­ation and which are not.

Like King, the group cites pre­vi­ous leg­is­la­tion:

The ques­tion of legal access has already been decid­ed. The state Supreme Court in 1945 found the pub­lic has recre­ation­al access to all streams in New Mex­i­co, regard­less who owns the adjoin­ing land and the streambed.

In response to the crit­i­cism for the bill, the Chas S. Mid­dle­ton & Sons real-estate com­pa­ny wrote a reply on its web­site “dis­pelling the opposition’s mis­giv­ings.” The com­pa­ny notes that the NMDGF already requires indi­vid­u­als to obtain writ­ten per­mis­sion from landown­ers before fish­ing on pri­vate land and the bill would only fur­ther cement the prac­tice, thus noth­ing would real­ly change.

More notably, the state­ment address­es the Supreme Court’s pre­vi­ous rul­ing about pub­lic waters:

[The 1945 case] referred to a sit­u­a­tion where a most­ly pri­vate­ly owned lake could be accessed, by boat, from a water­way locat­ed on pub­lic land. The case dealt exclu­sive­ly with an individual’s right to access water with­out touch­ing the streambed. The case nev­er men­tioned walk­ing, wad­ing, or stand­ing and only men­tioned the touch­ing of a streambed as it referred to “inci­den­tal con­tact.”

It’s believed that Gov­er­nor Mar­tinez will like­ly sign the bill. If she does, anglers in the state can only hope that the law will make it to the Supreme Court, who will hope­ful­ly clar­i­fy and uphold their 1945 rul­ing, for the good of fish­er­men in New Mex­i­co, in the West, and across the coun­try. —The Edi­tors

 

***Update (11 am): This is cer­tain­ly a com­pli­cat­ed issue, and the edi­tors wel­come your input on the mat­ter, espe­cial­ly if you live in New Mex­i­co. Please send respons­es to.com. We’ll add insight­ful replies to this sto­ry as they come in.

*******

Gen­tle­men,

 

Forty years ago I was a US Game Man­age­ment Agent for the US Fish and Wildlife Ser­vice sta­tioned in Wash­ing­ton, DC.

 

Two years pre­vi­ous to my trans­fer into Wash­ing­ton, I was the lone US Fish and Wildlife Ser­vice USGMA in New York South of Albany.  My job was enforc­ing the new Endan­gered Species Act, the Lacey Act and oth­er fed­er­al laws regard­ing the import, export and trans­fer of com­merce in and through the Port of New York.  Dur­ing my 2 years in New York, I “made” two very high pro­file cas­es that brought large fines and much pub­lic­i­ty.  One was the Vese­ly-Forte cat (jaguar, leop­ard, chee­tah, mar­gay) and reptile/giant otter inter­na­tion­al smug­gling case and the oth­er a Hawks­bill Tur­tle jew­el­ry case against Carti­er Jew­el­ers.  As a result of these large inves­ti­ga­tions and my pre­vi­ous law enforce­ment expe­ri­ence with the Utah Fish and Game, the Min­neapo­lis Police Depart­ment and two sta­tions in the Upper Mid­west I was trans­ferred into Wash­ing­ton to do some inter­na­tion­al (Europe) inves­ti­ga­to­ry fol­low-up out of the USFWS Cen­tral Office.  I have giv­en you all this triv­ia to give some grav­i­tas to the fol­low­ing expe­ri­ence with “Stream Access”.

 

About a year after report­ing to Wash­ing­ton I was called to the Assis­tant Secretary’s Office; this was like being told to report to the White House for a peon like me.

 

The Assis­tant Sec­re­tary was a very wealthy “con­ser­va­tion­ist” per­ceived of as fair and good to work for.

 

He explained that he was a mem­ber of an Atlantic Salmon fish­ing club in New Brunswick.  He said there were severe fish poach­ing prob­lems that the Cana­di­an and Provin­cial gov­ern­ment were try­ing to elim­i­nate.  I was asked/told to trav­el up there, speak with the law enforce­ment peo­ple and see if I could offer any advice.

 

In prepa­ra­tion for the trip, I boned up on Cana­di­an and US laws on stream access.  What I learned was that US law after the Found­ing specif­i­cal­ly and repeat­ed­ly upheld the right of trav­el­ers, fish­er­men, hunters and oth­ers to use water­ways across and by pri­vate prop­er­ty and that are flow­ing and more than a minor trick­le when used.  The his­to­ry of it was clear­ly that British law and British landown­ing Aris­to­crats had for cen­turies denied Irish and Scotch 2nd class cit­i­zens any rights to pas­sage, fish, otters and oth­er etceteras on the land­hold­ings of the pow­er­ful, wealthy rulers that in truth claimed both the coun­try and the con­quered peas­ants that inhab­it­ed its’ habi­tats.  This then was a prac­tice that spo­rad­i­cal­ly began to pop up in some of the 13 Colonies (today there are still two or three trout streams in W Vir­ginia where landown­ers claim that their land patent was signed by the King and there­fore any sub­se­quent (i.e. US) laws do not apply to them.  The new Unit­ed States of Amer­i­ca found such stream access restric­tion laws both repug­nant and ille­gal in a Nation where non-landown­ers could have access to the fish and game (owned “By the Peo­ple” in this new Nation) and NOT OWNED (as in Cana­da and Britain) by the landown­ers as in Mer­ry Olde Eng­land where most peo­ple were con­sid­ered 2nd class and of no moment to the rich rulers. Cana­da, as a British Domin­ion that part­ed peace­ably from Britain had no such feel­ings or legal tra­di­tion about stream access that I found and thus did not share our notions of the rights of every­one to fish and wildlife.

 

As I flew to Cana­da I was uneasy about pos­si­bly enabling Cana­di­ans to do what as Amer­i­cans we found so repug­nant.

 

The guy that met me and whom I spent my time with was a retired Cana­di­an mil­i­tary offi­cer com­plete with a bald head (like mine as I write), a mil­i­tary bear­ing, and whose con­ver­sa­tion after just a few min­utes was sug­ges­tive of what it would have been like to have been a US Offi­cer attached to Pat­ton dur­ing WWII.

 

I soon found out that the “poach­ers” were all French locals and not held in high esteem by the law enforcers out to get them.  Mil­i­tary weapons, tech­niques, entrap­ment (legal in Cana­da and once upon a time ille­gal in the US but has sad­ly become – wink/wink – tol­er­at­ed in US Courts in the past 45 years), inform­ers, and very stiff penal­ties with many oppor­tu­ni­ties for things to go wrong and peo­ple to get hurt and even killed.  After a few days I told them there was lit­tle I could offer and flew home.

 

As I flew home, I mulled over the irony of very rich Amer­i­cans with a legit­i­mate inter­est in Atlantic Salmon fish­ing pay­ing big bucks to be, essen­tial­ly, part-own­ers of both an Atlantic Salmon stream bed AND THE ATLANTIC SALMON that peri­od­i­cal­ly fre­quent it.  They sup­port laws and law enforce­ment in for­eign lands that were anath­e­ma in their own coun­try. Then they get a big gov­ern­ment appoint­ment (thanks large­ly to big dona­tions) and send tax-pay­er fund­ed bureau­crats like me to help a mil­i­tary oper­a­tion catch and pun­ish (in this case French) 2nd class locals that only want to share in the fish that come from the ocean through their com­mu­ni­ties.  I read sev­er­al books years ago about Scotch and Irish poach­ers that risked their lives (man-trap­s/­dog/shoot-to-kill enforcers, etc.) to agents of the British gov­ern­ment who could not only kill them while tres­pass­ing but even if caught with a salmon in their home.  All for not the wild animal’s wel­fare or the rights of all cit­i­zens but to enforce laws that made landown­ers supe­ri­or to non-landown­ers when engaged in activ­i­ties not on the land but sim­ply in the WATER FLOWING OVER AND BY THE PRIVATE PROPERTY OF THE LANDOWNER.

 

While you may be sur­prised by the “Fish­ing Lodges” sup­port­ing such a law, I am not.  Fish­ing Clubs are wealthy pur­suits by wealthy peo­ple and the ranch­ers are sim­ply tak­ing advan­tage of an oppor­tu­ni­ty to expand their real estate and reduce headaches AT NO COST TO THEM but at GREAT COST TO THE NON-LANDOWNERS that in many cas­es are their neigh­bors and friends, exact­ly like those British Aris­to­crats treat­ed the Scotch and Irish peas­ants and just like Amer­i­can law is treat­ing Rur­al Amer­i­cans more and more every day, that is to say as 2nd Class cit­i­zens of no moment.

 

All Amer­i­cans should be sick­ened by such greed and Leg­isla­tive per­fidy in a US State.  If as is war­rant­ed the rights on non-landown­ers to those streams can­not be guar­an­teed ami­ca­bly –THEN ALL FISHERY MANAGEMENT BY New Mex­i­co Game and Fish, ALL expen­di­ture od Fish­ing license rev­enue, ALL expen­di­ture of Din­gell-John­son Excise Tax Dol­lars, and ANY expen­di­ture of any state funds for any fish­ery man­age­ment on or above such closed–to-access areas should cease and be ille­gal in the future.  Addi­tion­al­ly, any attempt by the landown­er to impede free fish move­ment into or out the stream on the prop­er­ty should be a vio­la­tion of law and any struc­ture removed and the own­er fined.  Con­sid­er­a­tion should be giv­en to remov­ing (rotenone?)the PUBLICLY-ESTABLISHED AND PUBLICLY MANAGED fish­eries in such streams since they are no longer a PUBLICLY-OWNED nat­ur­al resource.

 

If New Mex­i­cans want to form com­mu­ni­ties like those reject­ed by our Found­ing Fathers let them do it where fish and wildlife are owned by the few who can abuse the many.  If New Mex­i­cans are proud of their Amer­i­can Her­itage and Val­ues, let them do the right thing and pro­tect access to pub­licly-owned and pub­licly-man­aged streams and not enable rich Amer­i­cans to do like that polit­i­cal appointee did years ago and have gov­ern­ment oppress rur­al peo­ple and their rights for the ben­e­fit of the pow­er­ful and priv­i­leged.

Jim Beers is a retired US Fish & Wildlife Ser­vice Wildlife Biol­o­gist, Spe­cial Agent, Refuge Man­ag­er, Wet­lands Biol­o­gist, and Con­gres­sion­al Fel­low. He was sta­tioned in North Dako­ta, Min­neso­ta, Nebras­ka, New York City, and Wash­ing­ton DC.  He also served as a US Navy Line Offi­cer in the west­ern Pacif­ic and on Adak, Alas­ka in the Aleut­ian Islands.  He has worked for the Utah Fish & Game, Min­neapo­lis Police Depart­ment, and as a Secu­ri­ty Super­vi­sor in Wash­ing­ton, DC.  He tes­ti­fied three times before Con­gress; twice regard­ing the theft by the US Fish & Wildlife Ser­vice of $45 to 60 Mil­lion from State fish and wildlife funds and once in oppo­si­tion to expand­ing Fed­er­al Inva­sive Species author­i­ty.  He resides in Eagan, Min­neso­ta with his wife of many decades.

Jim Beers is avail­able to speak or for con­sult­ing.  You can receive future arti­cles by send­ing a request with your e-mail address to:   jimbeers7@comcast.net