When Dan Perry moved from Texas to 1,500 acres in the arid reaches of northern New Mexico in 2010, the portion of the Rio Chama that ran through his property was contaminated with pollutants from the wastewater treatment plant upstream. The banks were eroded, so shade trees and shrubs no longer kept the river cool enough for rainbow and brown trout. Perry invested over $300,000 of his own money in engineer-designed erosion treatment, planting willows and alders, and restoring the natural course of the river. He worked with the governor to secure $8 million for a cleanup project. Now, the once-deteriorated stretch is a thriving fishery.
While investing private money to restore public resources isn’t a new concept, Perry took it a step further. He now effectively owns this portion of the Rio Chama, thanks to a controversial state regulation approved in December 2017 that allows residents to certify portions of streambed as private property, denying the public access to some public waterways that run through their land and shutting out people from fishing or boating there.
To Perry, this is protecting his investment in natural resource restoration. But to environmental activists and local anglers and boaters, it sets a dangerous precedent, portending a future in which wealthy landowners seize control of public lands ― and with it, the power to decide who gets access to nature and who doesn’t.
Perry is an ardent conservationist and a self-proclaimed “wild-eyed Democrat.” Restoring the Chama is just one of the conservation projects on his Trout Stalker guest ranch, where people pay up to $600 per night to stay and fish this now-privatized stretch of healthy river.
We’re not being selfish rich people. We believe we do the best conservation. Dan Perry
“The beauty of our lands and species survival is up to private landowners,” Perry told me in a 2018 conversation, back when he was fighting for the option to own a portion of the Chama’s stream bed. “We’re not being selfish rich people. We believe we do the best conservation.”
Not everyone agrees. The State Game Commission’s rule is currently being challenged in the New Mexico Supreme Court by local conservationists and recreationists who champion free and equal access to public lands and who are alarmed by the ominous implications of being shut out of these waterways.
Throughout the U.S., rivers are public resources. While there are myriad rules for how the water can be used, generally anyone can float on or fish in them (with a fishing license) and walk along the bank up to the high-water mark — even when the bank is technically on someone’s land. But New Mexico’s rule is unique: By allowing landowners to certify streambeds crossing their property as private (calling on arcane language dating back to the founding of New Mexico as a state), it implies ownership of the very water that flows through there.
In addition to Perry’s claim on the Chama, oil and gas magnate Kenneth Hersh, whom Forbes once named one of the richest people in Texas, has so certified a portion of the Pecos River that runs through his Rio Dulce Ranch. Sections of the Mimbres, Penasco and Alamosa rivers on the grounds of the Z&T Cattle Company have been certified by Zane Kiehne, named one of the largest landowners in the country by USA Today. Three more applications to certify parts of rivers are pending, and several more landowners are in line to start applications, all of them wealthy Texans.
Owners have blocked these stretches of river with cables bearing “No Trespassing” signs and foreboding lengths of barbed, razor and concertina wire strung from bank to bank. Only outfitters and visitors to their guest ranches, who pay for access, can fish and boat there.
The Rio Chama originates in Colorado and feeds into the Rio Grande in New Mexico. New Mexico allows landowners to stake a claim to streambeds on their property, controlling access to the water that flows over them.
“It’s the loss of a right that for 50 years of my boating life went unquestioned,” said Steve Harris, a local paddler and CEO of the rafting company Far Flung Adventures. “If this rule remains in place, there will be a landslide of applications from landowners until everything is privatized.”
About 70% of New Mexico’s waterways are on public land, according to the New Mexico Council of Outfitters and Guides. The remaining 30% flow through private land.
In March, the Adobe Whitewater Club, the New Mexico Wildlife Federation and the New Mexico chapter of Backcountry Hunters and Anglers decided the time was right to mount a challenge to the streambed access rule. They filed a petition to the state Supreme Court to strike down the rule as contrary to New Mexico’s constitution, which states: “The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public.”
“I don’t buy the ‘private stewardship is better’ argument,” said Brandon Wynn, a longtime member of both the New Mexico Wildlife Federation and Backcountry Hunters and Anglers. “We have plenty of public streams in beautiful shape. The motivation to privatize is to keep the ‘unwashed masses’ out of our streams so landowners can get paid a lot of money by whoever they want to allow in.”
This sentiment is shared by many conservationists who worry about a larger national trend of turning public lands over to wealthy private interests. Since President Donald Trump took office in 2017, his administration has put increasing amounts of public land up for lease for resource extraction, including lands once protected as national monuments, while eroding public participation in those decision-making processes. Tensions in the West have also been rising where rich people buy up acreage and fence out a public that’s long accessed those lands, exemplified by the simmering resentments in Idaho against the Texas billionaire Wilks brothers.
“Allowing a wealthy few to prevent those who come to their rivers for solace, recreation, companionship, and connection to natural places flies in the face of long-standing rights protecting access to some of New Mexico’s most precious assets,” said Hattie Johnson, the Southern Rockies stewardship director of American Whitewater, which advocates for river preservation but is not involved in the legal case.
Fencing and razor wire are strung across the Pecos River on the Hersh property. “No Trespassing” signs hang on nearby trees.
But Lesli Allison, executive director of the Western Landowners Alliance, suggests that New Mexico’s rule recognizes the importance of private landowners in preserving nature.
“There’s a much bigger picture here, which is that we’re losing our biodiversity on the planet and certainly in the West. Up to 80% of wildlife species depend on private land at some point in their lifetimes,” said Allison. “We have to start thinking about the importance of those lands as refuge, and expand it back out onto public lands so the public becomes more conscious of its recreational footprint, like barking dogs, campfires, ATVs and mountain bikes that all drive wildlife to the edge. The future of biodiversity depends on the actions of private landowners.”
Perry, who declined to speak to HuffPost for this story due to the ongoing litigation, is a member of the Western Landowners Alliance.
Allison also emphasized that it’s not just wealthy Texans in support of New Mexico’s rule, although they’re the ones who have the money to hire a lawyer to navigate the certification process. She said many smaller local landowners are also in favor of the rule. They believe that the streambed certification process is codifying what they’ve already viewed as private property for decades — even though the state’s constitution says otherwise.
“There are a ton of smaller landowners on other streams in New Mexico who would do the same thing,” said Frank Adelo, president of the Upper Pecos Watershed conservation group. Adelo’s family has lived in the area for generations and owns property with streams running through it. “I would, if I had the time and money to wade through the bureaucracy to get it done.”
We have a unique model in America where public outdoor resources have been gifted to the public, and it’s the public being able to use these resources that makes us value them. Brandon Wynn
Disagreement over the rule has been deeply political. Conservationists cite hefty campaign donations from wealthy landowners to New Mexico Gov. Michelle Lujan Grisham as key to swaying the government’s support. Events on the ground seemed to reinforce those suspicions when, in December 2019, the Democratic governor removed the chair of the State Game Commission, Joanna Prukop, who had called for reassessing the rule’s constitutionality.
“The governor called me into her office and yelled at me,” Prukop told HuffPost. “She said I’d gotten her into a box on this stream issue and needed to get her out, these people were important to her, and I needed to give her a win-win.”
The governor’s office and the state Department of Game and Fish declined to comment due to the ongoing lawsuit.
In April, the state’s U.S. senators ― Tom Udall and Martin Heinrich, both Democrats ― waded into the fray on the side of the public, “to defend New Mexicans’ rights under the state constitution to access public surface waters.”
With the stream access rule tied up in litigation and no signal from the court on the timing of its decision, there’s nothing for either side to do but wait. In the meantime, many locals fear they’re losing a crucial connection to nature.
“If you’re not able to use the outdoors, you don’t understand about the environment and you don’t care about its future,” said Wynn. “We have a unique model in America where public outdoor resources have been gifted to the public, and it’s the public being able to use these resources that makes us value them. They’re not supposed to be just for rich people.”
CORRECTION: An earlier version of this story misidentified brown and rainbow trout as native fish.
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