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HB 235: USE OF PUBLIC WATER & LANDOWNER PROTECTION

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.

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MILD HB 235
USE OF PUBLIC WATER & LANDOWNER PROTECTION

Legislative URL:
HB 235 on nmlegis.gov
Emergency Clause:
No
Germane:
N/A
Location:
S Flr
Action:
[4] HAWC/HJC-HAWC [11] DNP-CS/w/o rec-HJC [21] DNP-CS/DP [29] fl/sub adptd- fl/a- PASSED/H (34-28) [30] SCONC/SJC-SCONC [39] w/o rec-SJC [41] DP API.
Issue(s):

Companion Bills

Bills:
USE OF PUBLIC WATER & LANDOWNER PROTECTION

Related Legislators

Bill Sponsor:

Related Documents

Downloads:
Introduced
HAWC Committee Report
HAWC Committee Substitute
HJC Committee Report
HJC Committee Substitute
House Floor Substitute
House Floor Amendment 1
Final House Vote
SJC Committee Report
Fiscal Impact Report
Summary

This bill provides that no person may walk or wade onto private property by use of public water 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. It also makes clear that the person controlling the land has no duty of care to trespassers for liability purposes. It puts the Game Commission in charge of determining whether a waterway is a navigable waterway and authorizes the Commission to adopt rules addressing the issue.

 

When leaving a public access area (i.e. the limited part of privately owned property that is open to public recreational access), a person must remove any refuse or tangible personal property that the person brought into the public access area.

 

A possible benefit of this bill might be more responsible use of public access through private land to public waters. A potential concern might be whether access will decrease as a result of the bill, particularly because express written consent would be required from the landowner rather than posting signs. Another potential concern might regard vesting the power to determine navigability in the Game Commission, a board of political appointees who are not required to have expertise in legal matters..

 

The House Agriculture, Water and Wildlife Committee Substitute for HB 235 removes the original bill’s language regarding “no duty of care to trespassers.” It also moves the language regarding the determination of navigable waterways into a new section that sets forth the power of the Game Commission to make the determination. The substance of the language is the same as the original bill. The substitute does not do away with the need for written consent.

 

The House Judiciary Committee Substitute for HB 235 prohibits walking or wading onto private

property, for any recreational use, by use of public waters, or access to public water via private property, without the landowner’s express written consent. It also gives the State Game Commission authority to determine whether water on private property is a “navigable water.” And it provides for injunctive relief against individuals entering or remaining on private property for recreational use without the landowner’s permission.

 

The House Floor Substitute for HB 235 retains only the HJC Substitute’s prohibition against walking or wading onto private property, for any recreational use, by use of public waters, or access to public water via private property, without the landowner’s express written consent. It makes no provision for determination of navigable waterways or for injunctive relief.

 

House Floor Amendment 1, on March 7th, additionally specifies that nothing in the bill is to be interpreted to affect or influence whether a water is a navigable water or a water of the United States for purposes of the federal Clean Water Act of 1977.

 

A possible benefit of this bill might be more responsible use of public access through private land to public waters. A potential concern might be whether access will decrease as a result of the bill, particularly because express written consent would be required from the landowner rather than posting signs.