New Mexico waterways: Our Constitutional right to access is under threat

Photography by DeJa Walker

Did you know that New Mexico’s water law states that you can walk/wade through any
natural stream and/or watercourse, as they belong to the public? Even if the
watercourse runs continually (perennial) or only flows in rain/flood events (torrential).

Define a “watercourse”?

Well, it is “ANY river, creek, arroyo, canyon, draw, or wash, or any other channel having
definite banks and beds with visible evidence of the occasional flow of water.”

How might I access these public watercourses?

You may access them only from public lands or if that is not available, then by asking
the permission from a landowner to cross their land to get to the waterway. And you
may not exit the watercourse onto private land, unless you have permission.

It was with this knowledge we walked Percha Creek.

And so our story begins. . .

Percha Creek is one of the main tributaries that feeds the Rio Grande and its headwaters
are west of Kingston (right near the Ladrone trailhead). The Forest Service Road 40E is the main

Percha Creek headwaters

way to access this trailhead/headwaters (historically used for over 100 years) and this road has been blocked by a private landowner with a locked gate. Along with placing signs on his gate stating an open shooting range exists, clear intimidation is happening to the community.

The gating of Forest Road 40 E (historically used by the public for 100 years) prompted the Kingston community to begin researching alternative ways to access the Gila National Forest.

Due to this restriction, our community started researching other ways to access the
Ladrone trail and ultimately the National Forest and Aldo Leopold Wilderness that
spans behind this contentious locked gate. Our research brought to light that all New
Mexico waterways have a public easement. Thus, if the Forest Service Road 40E could
not be accessed, then the creek should be.

The statute makes clear that these waterways must have defined beds/banks with a high
water mark and a clear direction for water to follow. And these waterways can be
running perennially or torrentially (intermittent flow), with only the evidence of
occasional water.

Ultimately, Percha Creek fit the bill.

But to complicate matters, we have another private landowner on the other side of town
that has placed an excessive amount of fencing across the creek to restrict human and
wildlife access. One resident was walking the creek and came upon the fences. As he is
in his 70’s he decided it was safer to climb over the fence and then re-enter the creek.

Fencing across another section of Percha Creek

Long story short, these land owners charged him with criminal trespassing and he was
prosecuted (he represented himself in court and got drowned in the legal system). Our
community then doubled down on understanding the waterway laws of New Mexico.

In December 2023, my partner and I decided to go for a hike and wanted to walk the
creek back to our residence. We entered the creek around the Kingston campground,
which cuts through this same landowners property (crawling under the fence) and
exited on North Street.

Come mid-March 2024 a deputy from the Sierra County Sheriff’s department came to
our residence and told us that we were captured criminally trespassing on these
landowners’ game cameras and that the state of NM was going to charge us with
criminal trespassing. We were disturbed, as all of our research on the law seemed clear
to state that no landowner can restrict waterway access.

We immediately filed an official complaint with the Department of Justice (Attorney
General) office. They told us we had to go through the New Mexico Game and Fish
Department (NMGF) for enforcement. Thus on March 28th we were able to get a
Sergeant of the NMGF to come talk to us about this waterway and to walk the creek. He
stated that he knew we had rights to the water but that they couldn’t do much. . .so back
to the Dept. of Justice we went. After contacting a lawyer that worked on the Adobe
White Water case, he connected me to two attorneys, Mark Baker and Abigail
Pace, who are currently working for the Attorney General Raul Torrez to investigate
waterway cases.

We met with these attorneys and they said they would like to take on our defense as a
test case. Mark Sena, the special investigator for the Dept. of Justice, asked us for all our
evidence.

We also were informed that unless we formally demanded that the magistrate judge
George Lee dismiss himself from our case, he would be judging our case without the
proper legal education (this was the same magistrate who tried and sentenced our
previously mentioned community member for walking the creek). We did so, along with
naming replacement judges that were fit for criminal cases. A letter came in the mail
stating we were reassigned to an appropriately educated judge.

On May 10th a group of officials (attorney Mark Baker for the AG, Special investigator
Mark Sena, Sierra County Sheriff Joshua Baker and others), came to Kingston to walk
Percha Creek and assess the fencing situation. That same morning, we had our pre-trial
hearing and preliminary-examination hearing via the telephone. After listening to
several other cases for about an hour, the judge then asked us why we were on the call.
Shocked, we told them we had papers summoning us to attend. We informed the judge
of our names and case numbers, of which then the court clerk reported to ourselves and
to the judge, that our case had been dismissed.

On May 13th, Sheriff Baker asked to meet with us to discuss why our case was
dismissed. He came to our residence in Kingston with a special investigator, and we
talked for over an hour. During this conversation the Sheriff made it clear that he was
having to interpret the water law of NM and was trying to satisfy the wants of all parties
involved. He said that he had dismissed our case and that all waterway issues from here
forward would be directly sent to his desk.

We asked him if we could now start walking the section of creek that goes through the
landowners property with the locked gate, who is actively intimidating the community
with a “Shooting Range Open” sign. As we would like to access the trailhead, check on
the creek’s status, and visit the headwaters. He told us that his interpretation of the law
and the case law of Adobe Whitewater stated that we only have access to the “water”
itself. And if we walked a long stretch of the creek going west that goes sub-flow, we
would be charged with criminal trespassing.

Dumbfounded again, we explained all our understandings of the law and what it clearly
states. At this point we saw that the Sheriff did not have the authority nor legal
education (similar to the magistrate judge originally assigned to our case) to interpret
criminal law but should only be enforcing the law. He also told us that the AG office was
now in agreement with him, seemingly that he had changed their understanding of the
public’s easement to waterways.

This all seemed unreal, so we directly emailed the AG attorney Mark Baker. He dryly
reported back that yes, we could not walk this dry section of the creek, ultimately
blocking our access to the Percha Creek headwaters from Kingston.

We started to wonder why the dramatic shift from these officials after the May 10th
off-record meeting with these private landowners. Why were these officials, all of a
sudden, blatantly misinterpreting the law to seemingly protect these landowners?
It made us very leery concerning these elected officials and the conversations they were
having. The whittling down of the language to just “water” instead of
“waterway/watercourse” was unnerving and confusing. Do they really want the citizens
of New Mexico trying to traverse these intermittent flowing creeks only during
torrential/flash food events? Which, as we all know, is one of the most dangerous times
to be in a waterway.

Thus, after this meeting, we sent in another official complaint to the Dept. of Justice
(May 15th) and still have not heard anything substantial despite weekly calls and visiting
in person. I am currently awaiting further communication from Mark Sena, the special
investigator for the AG.

We also are waiting for a public meeting in Kingston to be confirmed, which we were
told by the AG officials and the Sheriff, would help de-escalate and clarify the waterway
confusion within our community. And that the landowner who has put fences across the
creek would be adjusting them to come into compliance. The only changes to date that
have been made are some repositioning of “no trespassing” signs.

And unfortunately to make matters worse, the fence saga continues. On June 11th our
community sadly watched as the landowner added another large metal post in the
middle of the Percha Creek watershed. He will now, potentially, be fencing off a
substantial section of Percha Creek from the Kingston Campground, which has been
greatly enjoyed by locals and travelers for many many years. We have the State of

This post was recently installed in the creek bed to support additional fencing that may deny users of Kingston Campground access to Percha Creek

Engineers and Forest Service assessing this post placement and they said they may try
to strike a compromise so that the campground isn’t restricted from Percha Creek.
Conversations still to be had.

We might just be one small community fighting for our riparian watershed, but we
surely are not alone. We ask citizens across New Mexico to stand up for their
constitutional right to access, traverse and enjoy our perennial and torrential waterways.
With elected officials intentionally misreading and cherry-picking this law, it is clear
that this misconduct is emboldening landowners to privatize a vital public easement and
infringe on our constitutional right.

And while this law might be simplified to “recreational use,” we must also remember
WHY this law was written and the fact that it was enacted pre-statehood. . . because water
is life and is for all. Even if the water shows on the surface or runs below, it is still a watercourse. And if we can’t access these watercourses and private landowners drown
our voices through political corruption and intimidation tactics, these waterways will
become segmented with little public accountability to keep them healthy and without damage.

We are the stewards and we are the voice of the natural world. Please use your voice.