NMG&F Certification of Non-Navigable Stream Properties - Update and Resources

The following is an update on the New Mexico Department of Game and Fish regulatory process to certify a stream section "non-navigable" and allow private landowners in New Mexico who meet certain criteria to sign a stream segment as private. This information is provided by Dan Perry, of the New Mexico Habitat Conservation Initiative and a Lifetime Member of the Chama Peak Land Alliance, and has been lightly edited for clarity.

Recently the New Mexico Department of Game and Fish (NMG&F) created a regulatory process to certify that a stream section is “non-navigable” for the purposes of N.M. Statutes Annotated 17-4-6. If that stream section is determined to be “non-navigable” as of 1912 (when NM entered the Union), and the landowner posts no trespassing signs and publishes notices as required by the statute, the landowner may prohibit uninvited individuals from entering his or her land through that stream.

NMG&F must determine if the stream section is “non-navigable” because that is the standard promulgated by the U.S. Supreme Court in the case of PPL v. Montana (2010).

The NM Department of Game & Fish promulgated the “Landowner Certification of Non-Navigable Water” rule in Title 19 (Natural Resources and Wildlife), Chapter 31 (Hunting and Fishing), Part 22. This rule went into effect in late January this year.

In summary, a New Mexico landowner wanting to get his or her stretch of land certified under the rule must submit a written application to the Dept. That application must set forth some general data about the applicant and the section of land involved, including a map and title history back to 1912. The application for certification must give published notice for 3 consecutive weeks in a newspaper that is in general circulation in the area where the stream section is located. Then the applicant must provide “substantial evidence” that the stream section was “non-navigable” at the time NM achieved statehood in 1912. The Director then has 60 days to make a written determination. There are various procedures for how that determination is to be made. Either the landowner or a “person with standing” may appeal the determination to the district court. Once a determination of “non-navigability” is made, the landowner must comply with certain sign posting requirements. 

I formed and am the President of the New Mexico Habitat Conservation Initiative (“NMHCI”). This entity qualified as a nonprofit by the IRS under Section 501(c)(4).

NMHCI commissioned from the Modrall Sterling law firm a detailed expert witness report that assesses the “non-navigability” of streams in NM in 1912. NMHCI will provide this report to qualified members of NMHCI, who will also be asked to contribute a non-tax deductible donation. The amount of the donation will vary depending on a variety of matters.

Each landowner applicant will probably also need the assistance of an attorney to draft and file the application, as well as put their supporting chain of legal title and related documents together as part of the application. However, a landowner could conceivably do this on his or her own. If there is an appeal to the district court, the landowner will almost certainly need to retain an attorney. I can provide a list of qualified attorneys to members of NMHCI.

I hope this information is helpful to you and the CPLA. Also, please let CPLA members know about the NMHCI, and that I am here to assist them if they wish to proceed with filing an application for certification with the NMG&F Department.

Dan Perry may be contacted at dan@chamatroutstalkers.com. The New Mexico Habitat Conservation Initiative is a 501(c)(4) organization which engages in the study and research of fish and wildlife, and develops and advocates for legislation, regulations, and government programs to protect the habitat of fish and wildlife in New Mexico.