New Mexico AG seeks contempt hearing, adds landowners to streams access suit

The New Mexico attorney general’s office escalated lawsuits against Terrero landowners fencing the Pecos River, in the latest iteration of a longstanding tension between public’s right to recreate in New Mexico’s rivers and streams, and private property.

In an Aug. 28 district court filing, New Mexico Department of Justice requested that landowner Erik Briones to go before a judge and face penalties for failing to take down an illegal fence after reaching a deal to do so earlier this year.

“So far, Mr. Briones has shown a determination to keep for himself a resource that belongs to the public — the Pecos River — even when doing so violates the Consent Decree he signed,” attorneys for the state wrote.

Briones, when reached by phone Thursday, said the river has been too high to safely remove the fence, which remains up. He referred further comment to his attorney Mark Ish, who was not immediately reached for comment Thursday.

“I’ve been trying to comply with this motion, this court order, all spring and all summer, but the running of the river, the runoff, the strength of the water has just prohibited me from getting in there to work in the river,” Briones said.

Background on the Pecos River dispute

Under the New Mexico Constitution, all waters within the state belong to the public, but banks and lands beneath water can be privately owned.

A 2022 ruling from the New Mexico Supreme Court found the public has the constitutional right to access to streams for paddling, fishing and wading, including the right to touch privately owned land beneath waters. Any use of the beds and banks must have minimal impact, according to the court.

“Walking and wading on the privately owned beds beneath public water is reasonably necessary for the enjoyment of many forms of fishing and recreation,” the 2022 opinion states. “Having said that, we stress that the public may neither trespass on privately owned land to access public water, nor trespass on privately owned land from public water.”

New Mexico attorneys are trying to address the law’s balance in rivers and streams across the state, said James Grayson, the chief deputy at the New Mexico Department of Justice.

“Landowners are protected, their private property is protected, and so we’re looking out for them as well, but we do want to make sure that everyone has access to those streams,” Grayson said.

Lawyers at the attorney general’s office originally sought a District Judge’s action in October 2023 against Briones and 10 other unnamed landowners for depriving public access to the Pecos River. The complaint alleged Briones and other landowners were violating the Supreme Court’s ruling using “threats of violence, physical obstruction, and false threats of legal action.”

The complaint attaches photos of six-foot high white pipes wrapped in barbed wire crossing the river, and “No Trespassing” signs, which falsely claim the river is private property.

In addition to the fences posing injury to waders or paddlers, the complaint alleged that Briones made threats in 2023 to shoot people if they returned to the Pecos River abutting his property.

In March, Briones and the New Mexico attorney general’s office came to an agreement that Briones would remove the fence by May 24 and would not install a new one or additional signs about trespassing on the Pecos River. The agreement noted this does not limit Briones from placing signs warning about trespassing on his privately owned lands.

In the Aug. 28 filing, the New Mexico Department of Justice attorneys dispute Briones’ claim that he has attempted to remove the fence, saying he never asked the court to modify the agreement.

“Mr. Briones’s stated excuse for noncompliance by the agreed-upon deadline of May 24

was his claim that water levels on the Pecos were too high to safely comply. That was debatable

at the time, and it is plainly untrue today,” the court document stated, showing river gage data that the Pecos River is below 3-feet high.

Attorneys are requesting a judge find that Briones violated the court order and request damages. The state asked for $1,000 in fines for the first seven days he remains in violation, increasing to $5,000 per day for the next seven days. After that 14 day period, if Briones remains non-compliant, state attorneys requested his arrest and detention in the San Miguel County Detention Center, until he agrees to remove the fencing.

Also, on Aug. 28, the New Mexico Department of Justice named two additional landowners, Richard Jenkins and Jean Jenkins, asking a District Judge to order them to remove a fence across the Pecos River on their land within 14 days of the order.

As for next steps, Grayson said the attorney general’s office will await a response, and said landowners could enter into a settlement to remove the fence.

[Accessed through https://sourcenm.com]