New Mexico’s top prosecutor is going after landowners who he says are illegally and unconstitutionally depriving the public of access to stretches of one of the state’s most well-known rivers.
The case involving access to the Pecos River is the first brought after the state Supreme Court in 2022 settled a long-simmering dispute over whether boaters and anglers had a right to access streams and rivers that cross private property.
Under the New Mexico Constitution, water within the state belongs to the public but the banks next to that water and the land beneath the water may be owned privately. The court found that public easement covers what would be reasonably necessary to use the water itself and that any use of the beds and banks must have minimal impact.
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Prosecutors said they were reserving the right to amend the complaint to include anyone who is violating the law by denying public access to the state’s rivers and streams.
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Attorney General Raúl Torrez brought the case after people reported being threatened by landowners with physical violence for wading, fishing and boating on portions of the Pecos River that flow through private land. Some landowners had put up concertina wire and other barriers to keep people from floating or wading in the river.
“While we respect the private property rights of landowners along these waterways, we expect them to follow the law and take down illegal barriers that restrict access to natural resources that belong to all of our citizens,” Torrez said in a statement.
The complaint specifically names Erik Briones, a businessman who owns land along the river. The filing also lists 10 “John Does” who represent both individuals and corporations who may be added to the complaint at a later time.
The investigation is ongoing and prosecutors said they were reserving the right to amend the complaint to include anyone who is violating the law by denying public access to the state’s rivers and streams.
A message seeking comment from Briones was left Tuesday at one of his businesses in Santa Fe. Court records did not list an attorney for him and indicated that he had yet to be served with the complaint.
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Advocates of private property rights have argued for years that opening up waterways will result in decreased property values and less interest by owners to invest in conserving tracts of land along streams.
Members of the Adobe Whitewater Club of New Mexico and the New Mexico Paddlers Coalition in September submitted a complaint to the attorney general’s office, outlining numerous instances in which landowners had installed cables and dangerous fencing across the Pecos and Chama rivers in northern New Mexico despite the Supreme Court’s 2022 ruling.
Torrez is seeking to keep the landowners from blocking access to any river or stream crossing their land and to remove barriers that threaten the safety of anglers and outdoorsmen in violation of the state constitution.
The counts listed in the complaint include depriving the public of access to the Pecos River and public nuisance. The complaint also asks the court to declare that the river is a public waterway and that the defendants do not have the right to defend their adjacent property with deadly force or threats of violence.
Steam access has been an issue across the West for years. While several states have recognized public ownership and use of water is distinct from ownership of the river or stream bed, the rules remain murky in some places. It was only recently that the Colorado Supreme Court decided a longstanding feud, finding that an angler who had sued over access had no standing to argue that rivers were public property if they had been used for commerce at the time. River advocates there said that without legislation, access fights will have to be resolved case by case.
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In New Mexico, it was first a 1945 ruling by the state Supreme Court that determined a landowner with property on both sides of a lake could not prohibit someone from fishing in boats on the lake. In that case, the court said the constitution and pre-statehood law established a right for the public to fish, boat and engage in other forms of recreation in public water.
In its 2022 opinion, the court addressed whether the right to recreational access and fishing in public water also allowed the public the right to touch privately owned land below those waters.
While finding that walking and wading on the privately owned beds beneath public water was reasonably necessary for fishing or recreational activities, the court also stressed that the public “may neither trespass on privately owned land to access public water, nor trespass on privately owned land from public water.”
