Ben Neary Conservation Director | New Mexico Wildlife Federation
Jason Kerkmans, reflecting on his upbringing influenced by an avid fly-fishing grandfather, recently discussed the need to raise public awareness about stream access rights in New Mexico. While researching as a law student in 2012, Kerkmans discovered that the state’s water laws granted public access to rivers and streams, regardless of whether they cross private lands. However, public perception has often been misled by outdated practices promoted by past state officials, and many landowners still resist sharing these waters.
In a 1945 Supreme Court case, it was established that all waters in New Mexico could be accessed by the public for recreation, a right enshrined within the state’s constitution. Nevertheless, misinformation persisted, and many assumed trespassing laws applied. Kerkmans’s subsequent research and publication prompted the New Mexico Attorney General's Office to affirm these public rights, despite new legal hurdles during Governor Susanna Martinez’s administration.
Legal challenges ensued, with conservation groups opposing a "non-navigable" certification program, culminating in a 2022 New Mexico Supreme Court ruling favoring public access to these waters. The court found that all unappropriated water belongs to the public, allowing public use of riverbeds beneath these waters.
Despite these rulings, opposition remains, and landowners have contested them in federal courts. New Mexico Attorney General Raúl Torrez has taken significant action against landowners obstructing access, emphasizing conservation and public rights.
Kerkmans highlighted the ongoing need for public awareness and government responsibility in these matters. "There was never a law that privatized or prohibited access to that land," he stated, underscoring that historical oversights led to the misconception of private water rights.
The resolution now depends on increased public understanding and adherence to constitutional rights, with Kerkmans urging communities to remain vigilant. He will address these issues further during a presentation scheduled at Marble Brewery in Albuquerque on February 12.
