Matthew Copeland has penned a tight, eminently readable (Access Denied) summary of the shameful proceedings that led up to the last minute passage of New Mexico SB 226 on 20 March 2015 – by a single vote – stripping New Mexico anglers of the ability to access public waters flowing over private land.
The heart of the issue has to do with a previous opinion (1945) and echoed by the outgoing New Mexico Attorney General Gary King in April of 2014; from Copeland’s summary –
In case you missed it, in April 2014 outgoing New Mexico Attorney General Gary King issued an official opinion that “…a private landowner cannot prevent persons from fishing in a public stream that flows across the landowner’s property…”.
He cited as evidence a 1945 Supreme Court case, State Game Commission v. Red River Valley Company, in which the high court decided, “The small streams of the state are fishing streams to which the public have a right to resort so long as they do not trespass on the private property along the banks.”
Repeated attempts to overturn the ruling, noted Attorney General King, had all failed. In fact, the justices later added emphasis; “The sovereign power itself, therefore, cannot, consistently with the principles of the law of nature and the constitution of a well ordered society, make a true and absolute grant of the waters of the State divesting all the citizens of a common right. It would be a grievance, which never could be long borne by a free people.”
As Copeland points out, Soaring Eagle Lodge, LLC, Chama Troutstalkers, LLC, Z&T Cattle Company and unbelievably the New Mexico Council of Outfitters and Guides sued given some ensuing confusion in the wake of the AG’s commentary, issued in response to an escalation in illegal water-access-restriction events.
Fast forwarding through an interval of advocacy and closure adherent arguments, last minute wheeling and dealing appears to have ensued to pass SB 226, appeals to the Governor for a veto fell upon deaf ears, and bad law was signed into effect.
Again from Copeland’s article –
Experts agree that the new law is a mess, and would likely have trouble standing up to a legal challenge. After all, as Americans, we enjoy a system of checks and balances in which the judiciary exists, in part, to ensure the rule of law and to insulate an individual’s rights from the whims of politics. And the judiciary has been crystal clear on the matter.
But no one believes challenging the law would be quick, cheap, or easy. In Utah, similar struggles have passed the 5-year mark and tallied a legal tab in the deep six figures. Mounting such an effort against a well-heeled opposition in New Mexico, where the median household income is the eighth-lowest in the nation, is a daunting proposition.
Is it unconstitutional to bar New Mexican anglers from wading their rivers? Probably. The attorney general and state supreme court have said as much. Does that make a difference if John and Jane Q. Public can’t afford to prove it? Nope, not one bit. Have fishing-access opponents added that up? You bet they have. And at the moment, the calculus looks pretty solid from their perspective.
New Mexico anglers will have to make the call as to whether the legal wrangling would be worth it in the end. We stand with many around the country who say please don’t let the bastards win; while there’s potent and widespread interest it’s time to fire back and get it right.
Protection of land owner interests in the face of responsible public access can be done; it’s not easy, but there’s a great model at the other end of the American Rockies chain (even if the NM Council of Outfitters and Guides went out of their way to say the Montana model just wouldn’t work in New Mexico, which is pure and unadulterated bullshit).
Git ‘er done.
