SANTA FE, N.M. (KRQE) – After the New Mexico Supreme Court clarified that the public has a right to wade in water, even on private land, lawmakers and state agencies are butting heads trying to figure out exactly what the decision means.
In a meeting with lawmakers in the Water and Natural Resources Committee on Monday, leaders from the Office of the New Mexico Attorney General and the Department of Game and Fish said they are working to enforce the law, but there was debate over how to handle fencing that blocks public water.
The issue is how to handle landowners who put up fences over public water that flows on top of private land. The latest New Mexico Supreme Court decision makes it clear that landowners are not allowed to block water access, but officials say they don’t have guidance on what exactly is legal or illegal.
“There are valid reasons to put a fence across a stream,” Michael Sloane, the director of the Department of Game and Fish, told lawmakers. “What are the alternatives? I don’t know. I don’t have statutory authority over fences.”
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Images from the New Mexico attorney general show potentially dangerous fences | Courtesy NMAG
Some landowners need fences to keep livestock contained. But Jesse Deubel, the executive director of the New Mexico Wildlife Federation, says people across the state are trying to enjoy public waters but keep running into illegal fences.
“To this day, I get inundated with phone calls and emails from our thousands of members who are New Mexicans, public land recreators, hunters, anglers, floaters, boaters, paddlers, swimmers that want to recreate in our public waters,” Deubel told lawmakers. “When they ask me, ‘Do I cut the fence? I have a right to be on that waterway,’ well I certainly would never advise anybody to damage someone else’s property. . . But why is it that I am in a position to field all of these phone calls? Where’s the leadership from the state?”
“We know what the law is. It’s not being enforced, and that needs to change,” Deubel said.
The New Mexico attorney general does have enforcement power and investigators. “The attorney general’s office stands ready to enforce the New Mexico Supreme Court’s opinion,” James Grayson, the chief deputy attorney general, told lawmakers. “We will be investigating any limitation on public access.” And if landowners don’t comply, “we will file lawsuits,” he added.
Some lawmakers blamed the Department of Game and Fish for their role in creating confusion around fencing rules. Rep. Matthew McQueen (D-Sandoval and Santa Fe) asked the department if they previously gave landowners “no trespassing” signs to put up on their property. Sloane from the Department of Game and Fish said that in the past, the agency did previously help landowners install signs. Now, though, Sloane says they’ve gone back and have removed some of those signs since the recent New Mexico Supreme Court decision.
On top of confusion, there are some landowners who seem to simply not want to comply, according to Sloane.
“There’s a landowner down near Roswell that has a fence that we’ve spoken to on multiple occasions who doesn’t have any interest in removing it, and we are struggling to figure out how we could force him to,” Sloane says.
The committee didn’t come up with any grand solutions to the problems over fencing, but lawmakers did recommend that the Department of Game and Fish use their in-house lawyer to better clarify what’s legal or illegal. And the committee noted that members of the public can submit complaints of illegal fences to the New Mexico Attorney General’s complaint hotline.
