2023 New Mexico Statutes › Chapter 17 - Game and Fish and Outdoor Recreation › Article 4 - Propagation of Fish and Game › Section 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 the owner's or lessee's enclosure or pasture, 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. No person engaged in hunting, fishing, trapping, camping, hiking, sightseeing, the operation of watercraft or any other recreational use shall walk or wade onto private property through non-navigable public water 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.
D. Nothing in this act shall 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, 33 U.S.C. 1251 et seq.
History:
Laws 1912, ch. 85, § 10; Code 1915, § 2433; C.S. 1929, § 57-215; 1941 Comp., § 43-405; 1953 Comp., § 53-4-5; Laws 1963, ch. 213, § 5; 1965, ch. 172, § 1; 2015, ch. 34, § 1.
ANNOTATIONS
Cross references.
— For prohibition against hunting or fishing in licensed private park or lake without permission,
see
17-4-15 NMSA 1978.
For posting notices against trespassing on licensed private parks or lakes,
see
17-4-26 NMSA 1978.
For publication of notices generally,
see
14-11-1 to 14-11-13 NMSA 1978.
The 2015 amendment,
effective July 1, 2015, prohibited persons engaged in hunting and fishing from entering private property without the consent of the land owner or lessee; in Subsection A, after "within", deleted "his" and added "the owner's or lessee's", and after "pasture," deleted "he" and added "the owner or lessee"; and added Subsections C and D.
Both publication and posting are required.
— Only by publishing a notice in English and Spanish, and by the posting of handbills in English and Spanish in six conspicuous places on the premises does the owner put into effect on his property a penal statute which protects him against trespassers.
State v. Barnett
, 1952-NMSC-065, 56 N.M. 495, 245 P.2d 833.
An appeal
does not lie to supreme court from an order overruling a motion to quash an information brought against defendants for violation of this section in the absence of express statutory authority therefor.
State v. Barnett
, 1951-NMSC-084, 56 N.M. 1, 238 P.2d 694.
English notice only is insufficient.
— Where the publication and posting were in English only, this section imposing criminal sanctions, did not become operative.
State v. Barnett
, 1952-NMSC-065, 56 N.M. 495, 245 P.2d 833.
Subsection C can be construed to avoid a constitutional question.
— Section 17-4-6(C) NMSA 1978 can be interpreted one of two ways: (1) the public cannot walk or wade onto private property (excluding the beds of public water) from public water, and the public cannot gain access to public water by crossing over private property, or (2) the public cannot walk or wade onto private property (including the beds of public water) from public water, and the public cannot gain access to public water by crossing over private property. The former raises no constitutional question; trespass onto privately owned lands is not permitted. The latter would be an unconstitutional limitation on the public's right to recreate and fish in public waters. Statutes should be construed, if possible, to avoid constitutional questions.
Adobe Whitewater Club v. State Game Comm'n
, 2022-NMSC-020.
New Mexico state game commission lacked the authority to promulgate regulations that limited the public's right to access public waters.
— Where petitioners sought a writ of prohibitory mandamus challenging the constitutionality of regulations promulgated by the New Mexico state game commission (commission) which outlined the process for landowners to obtain a certificate allowing them to close public access to segments of public water flowing over private property, the writ of mandamus was granted, because the regulations conflicted with a constitutional reading of § 17-4-6(C) NMSA 1978. The commission lacked the legislative authority to promulgate regulations that place an unconstitutional limitation on the public's right to recreate and fish in public waters. The public has the right to recreate and fish in public waters and this right includes the privilege to do such acts as are reasonably necessary to effect the enjoyment of such right.
Adobe Whitewater Club v. State Game Comm'n
, 2022-NMSC-020.
A tract of land which is not enclosed by fences may not be posted
under the terms of this section so as to subject persons who enter for the purpose of hunting and fishing to the penalties therein provided. 1957 Op. Att'y Gen. No. 57-237.
Posting by lessee permitted provided lessee does not conflict with action by commissioner of public lands.
— Assuming full and strict compliance with this section, as interpreted, a lessee of state land could not in all cases post under the statute. This section, insofar as this problem is concerned, must be read in light of the peculiar nature of the land involved. It must be borne in mind that under the Enabling Act, the constitution and statutes based thereon, the complete dominion and control over state lands is vested in the commissioner of public lands. In short, the lessee of state lands, even if he acts strictly in accordance with this section, could not do so in a manner in conflict with a duly taken action of the commissioner. 1958 Op. Att'y Gen. No. 58-194.
Posting does not prevent hunting or fishing by owner or permittees.
— If posting is duly accomplished, the landowner does not thereby deprive himself of hunting and fishing privileges on these lands. The owner, or those permitted by him to do so, could still hunt or fish so long as done in accordance with the game and fish laws and lawful game fish regulations. 1958 Op. Att'y Gen. No. 58-194.
New Mexico constitution does not permit a law to exclude the public from using public water on, or running through, private property.
— The New Mexico supreme court has construed this section to give members of the public the right to use public water in streams and lakes for fishing and other recreational activities, even when those streams and lakes are on private property, and therefore a 2015 amendment to 17-4-6 NMSA 1978, which added a prohibition against accessing private property through public water or accessing public water through private property without the property owner's consent, is constitutional only to the extent it prohibits a person, absent the required consent, from gaining access to private property from a stream or other public water and gaining access to a stream or other public water from private property. The constitution does not allow a law that would exclude the public from using public water on, or running through, private property for recreational uses if the public water is accessible without trespassing on private property.
Access to Public Waters on Private Property
(8/5/16), Att'y Gen. Adv. Ltr. 2016-06.
Am. Jur. 2d, A.L.R. and C.J.S. references. —
Title to fish and game taken by trespasser, 23 A.L.R. 1402.
Injunction against repeated or continuing trespasses by fishing, 32 A.L.R. 463, 60 A.L.R.2d 310.
Reservation in grant of land of right to hunt and fish, with like right to the grantee, as limiting the right of the grantee to actual owners of the land, 32 A.L.R. 1533.
Rights, title and remedies of hunter in respect of game which he is pursuing or has killed or wounded, 49 A.L.R. 1498.
Inland lakes as public fisheries, 57 A.L.R.2d 569.
36A C.J.S. Fish § 34; 38 C.J.S. Game § 59.