HOUSE BILL 235
52nd legislature - STATE OF NEW MEXICO - first session, 2015
INTRODUCED BY
Paul C. Bandy
AN ACT
RELATING TO PUBLIC WATERS; AMENDING SECTION 17-4-7 NMSA 1978 (BEING LAWS 1967, CHAPTER 6, SECTION 1, AS AMENDED); DEFINING THE SCOPE OF EASEMENT CREATED BY CONSTITUTIONAL PROVISIONS REGARDING OWNERSHIP OF PUBLIC WATERS, BENEFICIAL USE OF PUBLIC WATERS AND THE RIGHT TO ACQUIRE, OWN AND PROTECT PRIVATE PROPERTY; PROVIDING LIABILITY PROTECTION FOR LANDOWNERS FROM RECREATIONAL USERS OF PUBLIC WATERS AND TO PROVIDE FOR LAWFUL RECREATIONAL ACCESS TO PUBLIC WATERS; PROVIDING FOR INJUNCTIVE RELIEF.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 17-4-7 NMSA 1978 (being Laws 1967, Chapter 6, Section 1, as amended) is amended to read:
"17-4-7. LIABILITY OF LANDOWNER PERMITTING PERSONS TO HUNT, FISH OR USE LANDS FOR RECREATION--DUTY OF CARE--EXCEPTIONS--RECREATIONAL ACCESS TO PUBLIC WATER--INJUNCTIVE RELIEF.--
A. Any owner, lessee or person in control of lands has no duty of care to trespassers. Any owner, lessee or person in control of lands who, without charge or other consideration, other than a consideration paid to the landowner by the state, the federal government or any other governmental agency, grants permission to any person or group to use the owner's, lessee's or land controller's lands for the purpose of hunting, fishing, trapping, camping, hiking, sightseeing, the operation of aircraft or any other recreational use does not thereby:
(1) extend any assurance that the premises are safe for such purpose;
(2) assume any duty of care to keep such lands safe for entry or use; or
(3) assume responsibility or liability for any injury or damage to or caused by such person or group [or
(4) assume any greater responsibility, duty of care or liability to such person or group than if permission had not been granted and the person or group were trespassers].
B. This section shall not limit the liability of any landowner, lessee or person in control of lands that may otherwise exist by law for injuries to any person granted permission to hunt, fish, trap, camp, hike, sightsee, operate aircraft or use the land for recreation in exchange for a consideration, other than a consideration paid to the landowner by the state, the federal government or any other governmental agency.
C. Notwithstanding the provisions of Sections 72-4-15 and 72-4-17 NMSA 1978 or any other provision of law, the right of the public to use public water on private property for hunting, fishing, trapping, camping, hiking, sightseeing, the operation of aircraft or any other recreational use shall be governed by this section. No person shall walk or wade onto private property by use of public water on private property or access public water via private property unless the private property owner, lessee or person in control of private lands has expressly consented in writing. Determination of whether a public water on private property is a navigable water shall be implemented solely by the state game commission. The state game commission is authorized to adopt rules, regulations and procedures to implement the provisions of this section. Any person may bring the issue of whether a public water on private property is a navigable water before the state game commission for determination prior to using public water on private property for recreational activity. With or without application by the public or a private property owner or lessee or person in control of private lands so affected, the state game commission may in its own right make a determination of whether a public water on private property is a navigable water and such determination may be challenged by interested parties. An administrative appeal to the state game commission of any final determination by the commission is available to any interested person. Absent such a determination by the state game commission, it shall be presumed that a public water on private property was and is a non-navigable water.
D. The owner of private property may obtain injunctive relief against a person who, without permission, enters, remains or persists in an effort to enter or remain on the owner's property for recreational use of public water other than use pursuant to this section. An injunction under this section is in addition to any remedy for trespass. The court may award attorney fees and costs in an action under this section if the court finds that the losing party's arguments lack a reasonable basis in law or fact.
E. Nothing in this section affects the right of the public to use public water for public recreational access, including the touching of the bed beneath the public water if the bed beneath the public water is public property or the bed beneath the public water is private property to which access is not restricted. A person using a public water for public recreational access is subject to any other restriction lawfully placed on the use of the public water by a governmental entity with authority to restrict the use of the public water. Nothing in this section limits or enlarges any right granted by express easement.
F. When leaving a public access area, a person shall remove any refuse or tangible personal property the person brought into the public access area.
G. As used in this section:
(1) "department" means the department of game and fish;
(2) "navigable water" means a water course that at the time of statehood was navigable in fact and that is used, or is susceptible of being used, in its ordinary condition, as a highway for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water;
(3) "private property to which access is restricted" means privately owned real property that is:
(a) cultivated land;
(b) properly posted pursuant to Sections 17-4-6 and 17-4-26 NMSA 1978; and
(c) fenced or enclosed as a posted area pursuant to Section 17-4-6 or 17-4-26 NMSA 1978; or from which the owner or a person authorized to act on the owner's behalf has requested a person to leave;
(4) "public access area" means the limited part of privately owned property that is open to public recreational access by public easement contracted for by the department and private landowner; and
(5) "public recreational access" means the right to engage in recreational access pursuant to this section."
SECTION 2. SEVERABILITY.--If any part or application of this act is held invalid, the remainder or its application to other situations or persons shall not be affected.
SECTION 3. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.
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