Judge Orders Landowner To Restore Pecos River

By Ben Neary

NMWF

LAS VEGAS, NM – A San Miguel County landowner must fill in trenches in the bed of the Pecos River and remove fencing from its banks that could impede public fishing access, a district judge ordered Wednesday.

Judge Flora Gallegos gave landowner Erick Briones 10 days to complete the work. If Briones fails, the judge will fine him $1,000 a day for the next seven days and $5,000 a day after that until it’s completed.

Gallegos also sternly warned Briones about his future interactions with anglers who fish the Pecos River where it crosses his property.

“I am going to put you on notice, Mr. Briones, that it can’t rise to the level of harassment and it can’t rise to the level of threats,” Gallegos said.

Attorney General Raúl Torrez announced last week that his office had asked Gallegos to hold Briones in contempt.

Briones in 2024 entered an agreement with the state in Gallegos’s court. Under the agreement, he pledged to stop posting signs, fences or other barriers to public access on the Pecos River. He also agreed not to threaten members of the public who were boating or recreating there.

The AG’s Office told Gallegos that the state recently learned that Briones was violating the agreement.

“(Briones) continues threatening violence against New Mexicans who exercise their right to fish and recreate in the Pecos River, including making ongoing death threats against people he repeatedly had menaced with a shotgun,” the state alleged. “More recently, he brought in heavy equipment to trench the river, creating underwater hazards. And he has laid barbed wire in the river. The effect is to funnel river users into an area where water depths in his trenches create a drowning hazard.”

The state included a sworn statement from Kennis Romero, a Santa Fe resident and flyfishing guide. 

“On three separate occasions in the summer of 2023, Mr. Briones threatened me with a shotgun,” Romero stated. He stated that he and a friend left the river as a result of the threat.

Briones represented himself in a video court hearing before Gallegos on Wednesday afternoon.

“I feel like this motion against me is really unfair in that I feel the AG is harassing me for owning property,” Briones told the judge. He said he rarely goes to his property on the Pecos because it’s overrun with fishermen. 

Briones said some anglers allow their dogs to run loose on this property, cross his land to reach a private pond and play loud music on boom boxes early in the morning. He said he didn’t know Romero. 

“If I had to bring out a shotgun, he was provoking me and threatening me,” Briones said. 

Briones said he has complained about anglers to the New Mexico Department of Justice, but said there has been no response.

“I just feel that we have, as property owners,  no representation from the law,” Briones said. “We have no rights as property owners. We have no right to privacy.”

Briones said fishermen have threatened and assaulted him on his property. “For this motion to be brought against me, that I am threatening fishermen in the river – I am not,” he said. 

“I want to take some responsibility when we get with this two percent of fishermen who are totally disrespectful, it escalates,” Briones said. “It escalates on their end and it escalates on my end.”

Briones denied the claim that he had dredged the riverbed to create hazards. He said he had hired a contractor who used an excavator to address fish habitat in the river and said he got a “little carried away.” He said he would have the contractor restore the river to its pre-existing condition. 

Under questioning from Mark Baker, a lawyer for the state, Briones testified he didn’t recall threatening anyone with a shotgun. He responded “absolutely,” when Baker asked him if he suffers from memory problems.

“I carry a gun around that property all the time, Mr. Baker,” Briones testified. “It’s my property; I have a right to do that.”

Romero testified that he works as a flyfishing guide at the Lodge at Chama and fishes the Pecos River often. He said he and a friend were fishing on the river where it crosses Briones’s property in April 2023. He said Briones pointed a shotgun at his friend’s fly rod and said he would shoot if they didn’t leave.

“We were just there fishing, having fun, perfecting our craft,” Romero said. He said that when Briones brandished the shotgun, “I thought I might not be able to see my friends after that day.”

Romero said Briones has continued to threaten him in recent years as he’s fished the river more recently. “I’m definitely in fear of my life when I’m fishing Mr. Briones’s property and he’s there,” he said.

Romero said he fished the river where it crosses Briones’s property in recent weeks. He said he found an excavation in the riverbed that was 4 feet deep to 10 feet deep. He said he saw barbed wire and T-posts placed along the side of the river that made it difficult to wade through the area safely.

“It’s basically a swimming pool where it should be shallow,” Romero said of the river channel on Briones’s property. 

In a closing statement, Briones said he’s aware that anglers have the right to be on the river.

Baker told Gallegos that Briones has established a pattern of violating his agreement with the state by threatening anglers and then coming back into court to proclaim that he’s got the message and doesn’t deserve punishment. 

It’s the law of the land in New Mexico that anglers have the right to fish rivers and streams, Baker said. He said the state needs to make sure that the law will be followed in this area, “and we’re not going to have the Wild West on the Pecos River.”

Gallegos said she understands how hard it is for people who live or own property along the Pecos River, “because you have people fishing in your backyards.”

But Gallegos said there was sufficient testimony to show that Briones violated his 2024 agreement with the state. She said he is responsible for the actions of his contractor in excavating the river channel and ordered him to restore it. She said he must also remove the  wire fence along the river. 

Briones told Gallegos he intended to have a contractor restore the river channel immediately.

Gallegos noted Romero had testified that not all exchanges between him and Briones since the 2024 agreement had been amicable. She cautioned Briones she would not tolerate him making threats.

Torrez’s office undertook the original enforcement action against Briones and other landowners on the Pecos following a unanimous 2022 ruling by the New Mexico Supreme Court. That decision reaffirmed the longstanding right of New Mexicans to walk or wade on the streambeds of water that flows over privately owned lands for fishing or other recreation. The court also made it clear that the public has no right to trespass over private lands to reach the water.

“We hold that the public has the right to recreate and fish in public waters and that this right includes the privilege to do such acts as are reasonably necessary to effect the enjoyment of such right,” the New Mexico Supreme Court stated in its unanimous opinion.

The New Mexico Supreme Court ruling came in response to a legal challenge brought by the New Mexico Wildlife Federation, the Adobe Whitewater Club and the New Mexico Chapter of Backcountry Hunters & Anglers. The groups had challenged a regulation adopted by the New Mexico State Game Commission that went into effect in 2017 that purported to allow landowners to close streams over their properties.

The United States Supreme Court in early 2023 declined a request from some New Mexico landowners who have fenced off public waters to reconsider the state court ruling.

After Briones entered the agreement with Torrez’s office in Gallegos court, he and other landowners launched another federal court challenge, arguing that the state supreme court ruling amounted to an unconstitutional government taking of their property rights. A federal judge in New Mexico ruled against Briones and the others. Early this year, the 10th Circuit Court of Appeals rejected the landowners’ appeal.

Torrez’ issued a statement on the case on Thursday: “Hard-working New Mexican families, anglers, hunters, and outdoor enthusiasts deserve to enjoy the public waters and lands that belong to all of us, not just the wealthy few who think money and property ownership place them above the law,” he said. “This ruling sends a clear message that private landowners will face consequences if they interfere with access to our rivers and streams. My office will continue fighting to protect the constitutional rights of every New Mexican to safely access and recreate on our public waters.”