What’s at Stake

New Mexico Stream Access

Story and Photos by Katie DeLorenzo

A private fence restricts access to public water across a stretch of the Pecos River. Photo by Katie DeLorenzo.

Many Americans don’t fully understand that they—we—are the beneficiaries of a birthright that consists of six hundred forty million acres of public land and countless wetlands, lakes, streams, rivers, and beaches. The money in your bank account and the deeds you hold are irrelevant compared to these jointly owned public assets, all held in public trust to benefit us in ways too innumerable to count and too precious to quantify. You simply can’t put a price on the clean air and water safeguarded by healthy ecosystems or the thrill of a native Rio Grande cutthroat trout striking your fly in a clear mountain stream. In addition, many New Mexicans depend directly on traditional public land use for their livelihoods and sustenance.

Theodore Roosevelt helped give shape to the American ideal of the democracy of public lands by directing us to “Preserve large tracts of wilderness . . . for the exercise of the skill of the hunter, whether or not he is a man of means.”

While it may seem that ownership of and access to our public lands and waters is everlasting, the opposite is true. Our inheritance is under constant threat from development and privatization. Well-funded special interests have much to gain by acquiring natural resources in the West, especially as population growth, climate instability, and other factors make these resources more limited and valuable.

In addition, our rich tapestry of public lands is inextricably woven together with private lands and leased public lands. Many private landowners are stewards of their working lands and the cultural heritage they sustain. These private lands often benefit us all by enhancing habitat, connecting wildlife corridors, providing refuge, and protecting indispensable watersheds for downstream users. Against this backdrop, the question of public stream access has recently surfaced for all New Mexicans. The fundamental issue is whether or not the public has the right to fish and wade or float in waters that flow through private land, provided that the recreationists do not trespass to reach them and respect adjacent, privately owned stream banks.

DeLorenzo with a rainbow trout which inhabit public waters and are held in trust for the benefit of the public. Photos by Katie DeLorenzo.

Our state constitution enshrines our right of ownership to “the unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico.” The public’s right to access our waters for beneficial uses, including fishing and other forms of recreation, has been established since statehood and has since been bolstered by the 1945 Red River Valley case and the opinions of multiple attorneys general, including Gary King and Hector Balderas.

Some opponents of stream access contend that although New Mexicans do “in fact” have access to the water, the streambed is privately owned. They contend that accessing the water running through their land infringes on their private property rights. In 2015, Senate Bill 226 passed the State Legislature by a narrow margin, giving the state game commission the authority to declare stretches of water as non-navigable in an attempt to exclude the public from using public water. In 2018, stretches of the Pecos, Chama, Peñasco, Mimbres, and Alamosa rivers were certified as “non-navigable” and thus off-limits to the public. Many more have barbed wire and “No Trespassing” signs suspended above the flowing water.

Ownership arguments aside, upholding public access for recreational use of our streams makes sense economically. New Mexico has a $9.9 billion outdoor recreation economy and in 2018 we became the twelfth state to establish an outdoor recreation division to support this dynamic segment of our economy. Outdoor recreation, including fishing and rafting, helps rural communities by providing needed jobs and allowing local businesses to prosper.

However, we know that with great rights come great responsibilities. Increased access and recreational opportunity must be balanced with conservation initiatives to benefit riparian and aquatic habitats and the many species that inhabit them. Additional law enforcement, regulations and self-policing would also play an important role in protecting our waters from overfishing and littering.

On July 24, 2019, the New Mexico State Game Commission issued a ninety-day moratorium on the existing stream access regulation in anticipation of yet another opinion from New Mexico’s attorney general. While there are many passionate opinions around stream access, I urge you to learn about it and decide for yourself. After all, it’s your land, your water, and your wildlife.