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Wildlife Wednesday: NM Stream Access
Jason Kerkmans, board president of the New Mexico Wildlife Federation, will speak on the public’s right to use rivers and streams as the featured speaker at the federation’s Wildlife Wednesday event, Feb. 12 in Albuquerque.
Growing up in New Mexico, fly fishing shaped Kerkmans’s interest in conservation and honed his love of rivers.
“I grew up with a grandfather who was an avid fly fisherman, and who first started teaching me to fly fish not long after I turned ten,” Kerkmans said. “And like so many of us here, I had the distinct impression that in New Mexico, as you walk up a streambed that’s flowing over private land, that you’d be trespassing. And so I just never considered even the possibility of doing that.”
As a law student at the University of New Mexico in 2012, Kerkmans decided to research the legal history of how landowners came to control access to rivers and streams in the state. What he found surprised him, and led ultimately to a revolution in the enforcement of the state’s water laws that continues to make waves to this day.
It’s no surprise that Kerkmans and generations of other New Mexicans had believed that rivers and streams that cross private lands in New Mexico were off-limits. After all, that had been the official dogma from the New Mexico Department of Game and Fish for decades.
The game department had gone as far as printing up bumper stickers admonishing people to, “Ask First to Hunt & Fish on Private Land.” And the department’s annual fishing regulation books likewise falsely stated that anglers needed to ask landowners for permission before hitting the water that flowed over private lands.
Yet Kerkmans’s legal research quickly found that the New Mexico Supreme Court had ruled in a 1945 case, called Red River Valley, that the public indeed has the right to fish and recreate in all the waters of the state, regardless whether the surrounding lands are privately owned. The court noted that the right was not only enshrined in the New Mexico State Constitution, but dated back through New Mexico history.
Kerkmans wrote a law review article detailing his findings. Soon after that, the New Mexico Attorney General’s Office issued the first in a series of legal opinions stating, in essence, that Kerkmans was correct: the public has a right to fish and recreate on rivers and streams as long as they don’t trespass across private property to reach the water.
Nonetheless, many landowners strongly objected to the notion that they would have to share their cherished fishing spots with the public. The New Mexico Legislature responded by trying to stamp out the idea that the public had a right to use all waters in the state.
In 2015, during the administration of Gov. Susanna Martinez, the state enacted a law purporting to establish that landowner permission was necessary to fish or recreate on “non-navigable” public water. The New Mexico State Game Commission soon began issuing “non-navigable” certificates to private landowners stating that the rivers and streams that flowed over their lands were private.
The Adobe Whitewater Club, New Mexico Wildlife Federation and New Mexico Chapter of Backcountry Hunters & Anglers filed a lawsuit with the New Mexico Supreme Court in 2021 challenging the game commission’s “non-navigable” certification program. In 2022, the court unanimously ruled for the groups, holding that the program was unconstitutional.
Landowners who had benefited from the state’s bogus “non-navigable” certificates asked the U.S. Supreme Court to overturn the state court decision, but the high court refused to weigh in.
Other landowners recently filed a separate federal lawsuit in New Mexico claiming that the state court decision amounted to a government taking of their private property rights without compensation. Lawyers with the New Mexico Attorney General’s Office defended the decision, saying landowners didn’t lose anything because they never had the legal right to exclude the public from using the water. The judge in that case dismissed it in January 2025 at the request of the AG’s Office.
Kerkmans said he intends his Wildlife Wednesday presentation to help further the discussion of how New Mexicans can protect and preserve their rights in the future. Public awareness is necessary, he said, to “keep it something that future executive branches of the government have to respect or deal with the law appropriately, as opposed to allowing a vacuum that the game commission just doesn’t have to pay attention to.”
Kerkmans’s free presentation starts at 5:30 p.m., Feb. 12, at Marble Brewery’s Northeast Heights Taproom, at 9904 Montgomery Blvd., NE, Albuquerque.
Event Links
Website: https://go.evvnt.com/2887628-0
