9-03-2024 9:49am

New Mexico Stream Access Lawsuit, AG Files Contempt Motion Against Landowners

Chris Edwards Editor

New Mexico’s Supreme Court has made it clear, the state’s waterways are public and private landowners can’t fence people out. A group of those landowners continue to challenge that idea and in a back and forth that has the New Mexico Attorney General taking an aggressive stance.

New Mexico Attorney General Raúl Torrez filed a new lawsuit that now includes Pecos property owners Richard and Jean Jenkins. Additionally, we have requested that the court hold the original defendant, Erik Briones, in contempt for violating the consent decree he entered with the New Mexico Department of Justice in March 2024.

Last fall, the NMDOJ met with the two landowners, Jenkins and Briones, providing a comprehensive overview of case law affirming the public’s right to recreate in public streams. During this meeting, we also outlined the landowners’ legal obligation to remove obstructions and misleading signs that falsely claim restricted access to these streams and waterbeds. Despite our efforts, the named landowners have disregarded the law and continue to unlawfully obstruct access to the Pecos River.

“Today’s legal action underscores our unwavering commitment to safeguarding the public’s right to access New Mexico’s streams and waterways,” said Attorney General Torrez. “Despite our attempts to educate and inform the defendants, they have chosen to ignore the law and continue obstructing public access to the Pecos River. Mr. Briones, who previously agreed to a consent decree, is now flagrantly violating that agreement, leading us to seek a contempt order against him. By filing this amended lawsuit, we are sending a clear message: We will not tolerate violations of the law, and we will continue to fight for the rights of all New Mexicans to enjoy their natural resources.”

“The New Mexico Wildlife Federation deeply appreciates the commitment of Attorney General Raúl Torrez and his staff to force private landowners to remove barriers to the public’s use of the Pecos River and all public waters in the state,” said Jesse Deubel, executive director of the NMWF. “The AG’s bold work on this important issue stands in stark contrast to the inaction and outright opposition to following the clear orders of the New Mexico Supreme Court shown by the New Mexico State Game Commission and other elements of state government,” Deubel said. “The game commission and the New Mexico Department of Game and Fish were quick to try to block the public from public waters. But now that the state Supreme Court has ruled their actions broke the law, they persist in saying that they’re powerless to act to help the general public.”

“We applaud that the Attorney General is enforcing the NM Supreme Court’s 2022 unanimous decision that privatizing NM streams and rivers is unconstitutional,” said New Mexico Paddlers Coalition Stream Access Chair Norm Gaume. “The privatizers lost in the New Mexico Supreme Court. Their international law firm lost their appeal for SCOTUS review, based on the exceptional work of our New Mexico and California pro bono lawyers. Now, we have Attorney General Raul Torrez enforcing the NM Supreme Court’s unanimous opinion. Thank you, Attorney General Torrez.”

“Thank you, AG Raul Torrez, for enforcing the public’s constitutional right of public access to recreate in the public waters of New Mexico’s rivers and streams and taking legal action to protect recreational users against threats and violence,” said Scott Carpenter, President of the Adobe Whitewater Club of New Mexico. “We and our partners worked with generous pro bono attorneys, winning New Mexico Supreme Court litigation to protect public recreational uses of New Mexico’s public rivers and streams.”

The NMDOJ will continue to investigate any other property owners that are violating this constitutional right. If you have any information of other stream obstructions, please file a complaint with our office at https://nmdoj.gov/get-help/.

The following documents are attached; the new complaint adding the Jenkins as defendants, motion for preliminary injunction against Richard and Jean Jenkins, and the motion to hold Erik Briones in contempt.

State v. Jenkins Complaint

State v Jenkins M for Preliminary Injunction

State’s Motion for Order to Show Cause

The New Mexico supreme court previously issued a ruling from the bench, after a brief deliberation, that river and stream beds are just as public as the water above them. On Thursday, in an opinion written by New Mexico Supreme Court Chief Justice Michael Vigil, the court further explained its unanimous decision.

“The question here is whether the right to recreate and fish in public water also allows the public the right to touch the privately owned beds below those waters,” Vigil wrote. “We conclude that it does.”

The high court stressed that “the public’s easement includes only such use as is reasonably necessary to the utilization of the water itself and any use of the beds and banks must be of minimal impact.”

“Walking and wading on the privately owned beds beneath public water is reasonably necessary for the enjoyment of many forms of fishing and recreation,” Vigil wrote. “Having said that, we stress that the public may neither trespass on privately owned land to access public water, nor trespass on privately owned land from public water.”

The state supreme court’s opinion also stated that not only was it unconstitutional to bar wading or fishing in streams and rivers with privately owned beds, but that it was also unconstitutional for the New Mexico State Game Commission to issue regulations barring those activities on privately owned river beds.

The Game Commission has since repealed the rule that allowed people to petition to have sections of water that flowed through their property closed to public access.

“We conclude not only that the Regulations are unconstitutional, but also that the Commission lacked the authority to promulgate the Regulations,” Vigil wrote.

The legal battles go back to 2015 when the New Mexico Legislature enacted a new section of existing law that prohibited access to privately owned river beds within non-navigable waters.

The complaint fol d by the AG 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 even further 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 at one of his businesses and we have yet to hear a response. Court records did not list an attorney for him and indicated that he had yet to be served with the complaint.