April 27, 2020

Udall, Heinrich Move to File Court Brief in Public Stream Access Case before New Mexico Supreme Court

Amicus brief from lawmakers with extensive records on New Mexico conservation policy would affirm that New Mexico’s rivers, streams, and lakes belong to the public

WASHINGTON – Today U.S. Senators Tom Udall (D-N.M.) and Martin Heinrich (D-N.M.) moved to file 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. 

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 their filing, Senators Udall and Heinrich state that, “As lifelong conservationists and public lands advocates, [we] have a unique appreciation of the importance of public lands to New Mexico and across the nation, and the harm New Mexico and its people would suffer if the state abandoned its rule protecting the public’s right to enjoy these most treasured natural resources. [We] also have closely considered the particular danger of replacing the current rule, firmly grounded in New Mexico’s history and Constitution, with a new regime under which access would be determined based on federal ‘navigability’ standards and title to streambeds. [We] believe that, drawing on [our] experience and knowledge, [we] can assist the Court by addressing relevant matters in an amicus brief the parties have not covered.” 

A copy of the senators’ motion can be found here.