# Public river closures on private land in NM



## jambot23 (Aug 25, 2009)

I just stumbled onto this article about a New Mexico law that allows landowners to completely block access to rivers. I found it shocking. In Idaho if you can float a log or boat down a creek during high water it is a public right-of-way from highwater mark down. I guess I foolishly thought most states were similiar, at least in the west. I wrote a nice letter to the Gov., legislature, F&G, and NM tourism department letting them know I won't be coming to NM or buying from NM companies while the rule is in effect and encourage y'all to do the same(if feasible).

https://www.theguardian.com/environment/2018/mar/15/privatized-rivers-us-public-lands-waterways


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## MontanaLaz (Feb 15, 2018)

That's insane. Can you imagine a landowner pulling barbed wire across the Colorado or Salmon?

I am in the camp that thinks that the EPA overstretched in the definition of navigable waterways under the Clean Water Act, which I generally support, but this is a whole different thing.

How is it that a rancher messing with a seasonal pond (read: oversized mud puddle) on private land brings down the wrath of the EPA, requiring expensive litigation on the part of the landowner in one place while in another someone can just say "It's mine" and deny access below the high water mark? 

I get it that there is a difference between protecting water quality and granting access. But this just doesn't sound right. Does anyone know if New Mexico has a different concept in their state constitution that had simply not been generally enforced before or is this really just landowners making it up as they go along and daring someone to tell them otherwise? 

Update: It looks like SB 226 was signed into law in 2015 which does restrict access unless you have written permission of the landowner if you are _*touching the stream bed*_, similar to Colorado law.

The law was supposed to preserve access so long as you were floating. If all of this is right, then it will take a lawsuit either by a private citizen or a group such as American Rivers on behalf of the public to force the landowners to obey the law.


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## markhusbands (Aug 17, 2015)

MontanaLaz said:


> How is it that a rancher messing with a seasonal pond (read: oversized mud puddle) on private land brings down the wrath of the EPA, requiring expensive litigation on the part of the landowner in one place while in another someone can just say "It's mine" and deny access below the high water mark?


The EPA would only have regulatory jurisdiction if there was discharge from said mud puddle into a stream or lake that constituted a "navigable waterway". Opinion in Rapanos v. United States says that if a water body had a “significant nexus” to a "navigable waterway" then it fell under federal jurisdiction. So, a pond connected to a wetland that produces a consistent flow into another lake or stream might count, but the issue is not the condition of the pond. It's the downstream effect. That seems like a reasonable exercise of the public interest to me, although I don't doubt that there are cases that need a harder look.


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## MontanaLaz (Feb 15, 2018)

markhusbands said:


> The EPA would only have regulatory jurisdiction if there was discharge from said mud puddle into a stream or lake that constituted a "navigable waterway". Opinion in Rapanos v. United States says that if a water body had a “significant nexus” to a "navigable waterway" then it fell under federal jurisdiction. So, a pond connected to a wetland that produces a consistent flow into another lake or stream might count, but the issue is not the condition of the pond. It's the downstream effect. That seems like a reasonable exercise of the public interest to me, although I don't doubt that there are cases that need a harder look.


The case I was referring to was one in which an appeals court ruled in favor of the landowner. It was in turn referenced in an article on SB 226 that drew the conclusion that it was easy for the EPA to overreach because the only real negative consequences for the agency was being told "no" by the courts and then having to explain themselves to internal regulators.

This stuff is hard for me because I am an environmentalist, but I also get my hackles up over abuses by agencies that harm the broader environmental movement. IE: The fox news crowd gets a headline that reinforces their view of environmental regulation because of a mistake made.


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## markhusbands (Aug 17, 2015)

MontanaLaz said:


> The case I was referring to was one in which an appeals court ruled in favor of the landowner. It was in turn referenced in an article on SB 226 that drew the conclusion that it was easy for the EPA to overreach because the only real negative consequences for the agency was being told "no" by the courts and then having to explain themselves to internal regulators.
> 
> This stuff is hard for me because I am an environmentalist, but I also get my hackles up over abuses by agencies that harm the broader environmental movement. IE: The fox news crowd gets a headline that reinforces their view of environmental regulation because of a mistake made.


Fair enough.


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## BrianK (Feb 3, 2005)

The fight occurs over the definition of Navigable Waters. It's clear that if a river is navigable (for title purposes) then land up to the normal high water mark is owned in public trust by the people of the United States. The definition of navigability is relatively clear as well - if it could have been used for commerce at the time of statehood it's navigable. However, the application of this navigability doctrine to various rivers is anything but clear. This is how you get some states like Colorado where the Colorado Supreme Court basically held that no Colorado rivers were navigable - therefore under (possibly erroneous) Colorado law, all streambeds are owned by the adjacent landowners. Other states have found that all streams are navigable, therefore all streambeds up to the normal high water mark are public land.

I don't see how this permits a landowner to obstruct waterways as water cannot be owned in the west. Further, if someone were to trespass because of his obstruction they would have a good lesser evils defense in most states. (Not sure about NM)

For what its worth, navigability has different definitions depending on the purpose - e.g. navigability for title, navigability for commerce clause, etc. Rapanos is a case about the definition of navigability for the clean water act - which is a statutory argument. (Navigability for title is based in common law) It is similar but different from navigability for title, which is the relevant definition to trespass and right to float.


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## lmyers (Jun 10, 2008)

BrianK said:


> I don't see how this permits a landowner to obstruct waterways as water cannot be owned in the west. Further, if someone were to trespass because of his obstruction they would have a good lesser evils defense in most states. (Not sure about NM)


In my experience this occurs almost exclusively on cattle ranches where property boundaries (or grazing lease boundaries) are on or very near a creek or river. The only reason for obstructing a waterway with a fence is to keep in livestock. I have encountered several, dealt with AW and land/lease owners and don't have a good solution to the situation.


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## ColoradoDave (Jun 3, 2010)

My understanding is that if someone runs a fence across the river, they are impeding legal travel down the river and it is therefore legal to walk on their property to get around it.

Unfortunately, it would be up to the local yokel LEO to either let you go or force it to go to court.

One solution that happens around here is that the ranchers put up the wire when the river is low to keep the cattle in, but remove it when the level rises ( When paddlers typically start running it, and cows will no longer go in )

They don't have the I, me, mine attitude. They just want to keep their cows in when the river is low. I think that attitude comes more from the fear of the fishermen cleaning out the fish they have stocked, which is asinine. The trout can leave by themselves whenever they want.

Seems like if a trout is thrown in the river it doesn't belong to anyone anymore until caught again. Unless it touches the bottom


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## GilaRobusta (Mar 19, 2015)

Knipex


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## ColoradoDave (Jun 3, 2010)

One step further, What is preventing me from boating through the Pecos or Rio Chamita with an AK-47 strapped across the bow of my Kayak ? Or the Middle Taylor on 4th of July ?

Perfectly legal.


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## lmyers (Jun 10, 2008)

ColoradoDave said:


> One step further, What is preventing me from boating through the Pecos or Rio Chamita with an AK-47 strapped across the bow of my Kayak ? Or the Middle Taylor on 4th of July ?
> 
> Perfectly legal.


I think that could be construed as either brandishing or menacing....


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## GilaRobusta (Mar 19, 2015)

Rio Chamita float trip....I chuckle... The Chamese sewage plant is so toxic your boat might melt. Wash your hands. I think Northern New Mexico is run on a completely different set of rules than most of the western United States. Beware of land granters and Acequia types...


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## Recreation_Law (Oct 29, 2013)

Your guys knowledge of water law is mostly wrong. (1) There are 17 definitions of "navigable" used in different federal laws. NONE OF THEM HAVE ANYTHING TO DO WITH ACCESS. Access is controlled by state law. Each State has laws concerning who owns the water, bed, stream sides, etc. Here is a basic article I wrote about the issues a couple of weeks ago. There may be a new dawn in river and stream access in Colorado or access may forever disappear.	http://rec-law.us/2DrcV5R

It just touches the surface of the laws. CO, UT and NM severely restrict the rights of boaters to access waterways. It is a legislative issue, NOT federal. Contact your state legislator to get the laws changed.


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## caverdan (Aug 27, 2004)

> They don't have the I, me, mine attitude. They just want to keep their cows in when the river is low. I think that attitude comes more from the fear of the fishermen cleaning out the fish they have stocked, which is asinine. The trout can leave by themselves whenever they want.
> 
> Seems like if a trout is thrown in the river it doesn't belong to anyone anymore until caught again. Unless it touches the bottom :smile:


Kind of depends on if *you* bought the fish or not. By that I mean, they chum their fish weirs and eddies to keep the fish where they want them. . One of the reasons some of them ranches over there hate float fishing.


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## Issip (Apr 7, 2011)

*New Mexico Constitution*

The New Mexico Constitution and Supreme Court have upheld access to navigable water, and the proposed law is in direct violation of a previous NM supreme court precedent (specifically land owners do not own the property to the "middle of the river" as some like to claim, and they cannot bock access to the water, though they can block access to the shore. However if another law like that gets passed then you have to litigate it to the state supreme court again and in the mean time land owners may think they have the right to pull a gun on a kayaker (see recent AZ news).

I helped identify the fences for the article, and most of the rivers we are talking about are seasonal - the Pecos, the Upper Chama, the Rio Ojo Caliente - they drop to less than ~20 CFS for much of the year. If a rancher owns land on both sides of the river, they need to keep cattle from walking away, an issue I understand. Some land owners have replaced their barb wire with the plastic slats that allow boaters and trees to flow through, which is an option I like.

The article ended up going into fishing access restriction, which then starts to blurr a line as wading and walking along the bank are different then floating down the middle, and the land owner technically does own the shoreline.


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## Livenswell (Sep 19, 2016)

*Fencing Keys*

In New Mexico the old saying goes that Water is for fighting, whisky is for drinking and I guess that fighting will always be the case where there is never enough of either, but regarding the fencing and wires strung across the Rios out here by uninformed landowners - you need a set of "keys" for these instances, a set in your truck and a set in the boat:


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## ColoradoDave (Jun 3, 2010)

lmyers said:


> I think that could be construed as either brandishing or menacing....


But perfectly legal and accepted to either ride my 4-wheeler with a long rifle ( Or AK-47 ) holstered in one of the many commercial 4-wheeler rifle holsters, or open carry a holstered weapon when hiking in NFS or BLM land bordering private property without any permit necessary or fear of charges.

The actual flaw in the premise may be that I might not be able to claim self defense in the event of an altercation because I had been provoking that reaction by defying the other person. Proof of provocation excludes a self defense plea. 

However, if a person hears word of menacing landowners on a reach of river they would like to run, and therefore arms themselves as a precaution, likely with the required concealed carry permit, and is subsequently fired upon or threatened in any way by any landowner, they would be legally allowed to defend themselves to whatever extent necessary.


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## jgrebe (Jan 16, 2010)

The real problem is that the laws regarding navigability, access, trespass, etc are unclear and case law has not been taken to the Supreme Court for a final resolution of several contradictory rulings by lower courts. I've spent a lot of time on this issue and have read a wide variety of viewpoints by well informed sources - many of which flat out contradict each other. There is a new development in Colorado which might help clarify things - if it goes far enough.

https://www.americanwhitewater.org/content/Article/view/articleid/33965/


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