HOUSE JUDICIARY COMMITTEE SUBSTITUTE FOR

HOUSE AGRICULTURE, WATER AND WILDLIFE COMMITTEE SUBSTITUTE FOR

HOUSE BILL 235

52nd legislature - STATE OF NEW MEXICO - first session, 2015

AN ACT

RELATING TO PUBLIC WATERS; AMENDING AND ENACTING SECTIONS OF CHAPTER 17 NMSA 1978; 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 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 17-4-6 NMSA 1978 (being Laws 1912, Chapter 85, Section 10, as amended) is amended to read:

     "17-4-6. HUNTING AND FISHING ON PRIVATE PROPERTY--POSTING--PENALTY.--

          A. Whenever the owner or lessee desires to protect or propagate game birds, animals or fish within [his] the owner's or lessee's enclosure or pasture, [he] the owner or lessee shall publish notices in English and Spanish warning all persons not to hunt or fish within the enclosure or pasture. The notices shall be posted in at least six conspicuous places on the premises and published for three consecutive weeks in a newspaper of general circulation in the county where the premises are situated. In the event a public road enters or crosses the enclosure or pasture, an additional notice shall be posted conspicuously within three hundred yards of the point where each public road enters the posted property.

          B. After the publication and posting, it is a misdemeanor for any person to enter the premises for the purpose of hunting or fishing or to kill or injure any bird, animal or fish within the enclosure or pasture without permission of the owner or lessee.

          C. Notwithstanding 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 watercraft or any other recreational use shall be governed by this section. No person engaged in the above described recreational uses 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 or lessee or person in control of private lands has expressly consented in writing."

     SECTION 2. A new section of Chapter 17 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] ADDITIONAL POWERS AND DUTIES OF STATE GAME COMMISSION--DETERMINATION OF STREAMBED OWNERSHIP--PRIVATE PROPERTY NAVIGABLE WATER--INJUNCTIVE RELIEF--PUBLIC RECREATIONAL ACCESS.--

          A. Notwithstanding any other provisions of law, 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 water on private property is a navigable water before the state game commission for determination prior to using 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 shall in its own right make a determination of whether water on private property is a navigable water and such determination is appealable as an administrative decision to the district court. As used in this subsection for defining streambed ownership, "navigable water" means a water course that at the time of statehood was navigable in fact and that was used or was susceptible of being used, in its ordinary condition, as a highway for commerce over which trade and travel was or may have been conducted in the customary modes of trade and travel on water, to be determined on a segment-by-segment basis.

          B. 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.

          C. 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 not private property to which access is 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.

          D. Nothing in this section shall limit or affect any permissible use of water by watercraft.

          E. When leaving a public access area, a person shall remove any refuse or tangible personal property that the person brought into the public access area.

          F. As used in this section:

                (1) "department" means the department of game and fish;

                (2) "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; or

                     (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;

                (3) "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;

                (4) "public recreational access" means the right to engage in recreational access pursuant to this section; and

                (5) "watercraft" means a boat, canoe, kayak or other floating device made to float upon water."      

     SECTION 3. 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 4. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2015.