New Mexico Supreme Court details ruling on stream access - By Susan Montoya Bryan Associated Press
The New Mexico Supreme Court on Thursday detailed its legal reasoning for a decision earlier this year that answered a long simmering question over whether the public had a right to access rivers and streams that flow through private property.
The court's written opinion follows a decision announced from the bench in March that invalidated regulations by the state Game Commission permitting property owners to close access to waters on their land.
Steam access has been an issue across the West for years. While several states have recognized public ownership and use of water is distinct from ownership of the river or stream bed, neighboring Colorado is among those where the debate is ongoing and a court case over access to the Arkansas River is pending.
Under the New Mexico Constitution, water within the state belongs to the public but the banks next to that water and the land beneath the water may be owned privately.
It was a 1945 ruling by the New Mexico Supreme Court that determined a landowner with property on both sides of a lake could not prohibit someone from fishing in boats on the lake. In that case, the court said the constitution and pre-statehood law established a right for the public to fish, boat and engage in other forms of recreation in public water.
The court in the latest opinion addressed whether the right to recreate and fish in public water also allows the public the right to touch privately owned land below those waters.
"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 opinion reads. "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."
The court said public easement covers what would be reasonably necessary to use the water itself and that any use of the beds and banks must have minimal impact.
The justices also noted that the Game Commission lacked the authority to promulgate the regulations that spurred the fight.
Under the process established by the commission, landowners could apply for certification deeming that water flowing through their property was "non-navigable public water." That would authorized them to close access, and unless they provided someone with written permission people could be cited for trespass if they touched a stream or lake bed on waters closed to access.
The regulations went into effect in 2018, prompting a coalition of anglers, rafters and conservationists to file a petition. The groups argued that the public has the constitutional right to fish, boat or use any stream for recreation so long as they do not trespass across private land to get there.
In court filings, the groups pointed to similar conclusions reached over the years by courts in Montana, Oregon and Utah.
The New Mexico Supreme Court in its opinion also noted Idaho, Iowa, Minnesota, North Dakota, Wyoming and South Dakota have all recognized public use of water is distinct from river or stream bed ownership.
Last chance to order free COVID-19 tests from White House website – By Jered Ebenreck, KUNM News
CovidTests.gov, the federal website where people can order free COVID-19 tests, will besuspendedFriday, making Thursday the last chance to order those tests while supplies last.
The program began offering rapid-result antigen tests to American households in January, at the height of the omicron surge. President Joe Biden promised to provide one billion free at-home tests, half via the US Postal Service. The Administration states it has distributed more than 350 million tests through the site to date.
The program has sent eight at-home tests to households in three rounds since January. This third round is the last. The website itself notes the program stopped “because Congress hasn’t provided additional funding to replenish the nation’s stockpile of tests.”
White House Press Secretary Karine Jean-Pierre said during a press briefing, “This is an action we’ve been forced to take that will help preserve our limited remaining supply, ensuring we have a supply of tests available in the fall.”
Some people may be eligible for free tests through a limited program that serves eight states, including New Mexico. Project ACT, a joint effort from The Rockefeller Foundation, state health departments, CareEvolution, iHealth Labs, and Amazon, continues to offer free tests as long as supplies last, according to its website.
ABQ taps new superintendent of police reform - KUNM News, Albuquerque Journal
The Albuquerque mayor has now tapped the city’s new superintendent of police reform who will focus on accountability within the Albuquerque Police Department.
Retired Bernalillo County Metropolitan Court judge Victor Valdez will be next to step into the position, after an offer to another candidate was rescinded back in May.
According to the Albuquerque Journal, Valdez was born in Santa Fe and has practiced law with a specialization in civil rights for around 15 years.
A news release quoted Valdez, saying that he’s looking forward to improving public safety through a sustainable office of accountability. The position gives Valdez the final say on all police disciplinary action.
Back in 2012, the United States Department of Justice launched an investigation into allegations of APD officers using unreasonable deadly force, finding in 2014 “patterns of excessive force" in the department.
As a result, APD entered into an agreement with the federal agency to reform its department — and an independent monitor recently found improvements, though it’s still unclear when the process will be completed.
New Mexico governor pledges $10M for new abortion clinic - By Susan Montoya Bryan Associated Press
New Mexico's governor on Wednesday signed a new executive order that pledges $10 million to build a clinic that would provide abortions and other pregnancy care.
"The goal here is build it and they will come," Democrat Michelle Lujan Grisham said after signing the order during a virtual announcement that included members of the state's Commission on the Status of Women and several legislators.
The governor noted that New Mexico already has seen an influx of patients following the U.S. Supreme Court's decision in June to overturn Roe v. Wade as abortions have ceased in neighboring Texas and elsewhere.
Lujan Grisham, who is running for reelection against Republican Mark Ronchetti, signed her first executive order on the matter in late June. It was aimed at ensuring safe harbor to people seeking abortions or providing abortions at health care facilities within the state.
The latest order reiterates her commitments to protecting access in addition to directing state agencies to leverage their resources to expand access to reproductive health care — including abortion — in underserved areas of the state. The order also calls for the state Department of Health to review the feasibility of providing medication abortions at its public health clinics.
Ronchetti on Wednesday said state funds shouldn't be spent on a clinic where late-term abortions would be available for people who come from out of state. He has proposed limiting abortion to the first 15 weeks, or in cases of rape, incest, or when the life of the mother is at risk.
"Using taxpayer dollars to enable and fund abortion up until the point of birth is not only out of line with New Mexican values, it is extreme," he said in a statement.
The Democratic-led Legislature will hash out the next state budget, including capital investments, when it meets in January.
As for the one-time proposed infusion of $10 million for a new clinic in the Las Cruces area, Lujan Grisham said she envisions a partnership with medical schools and private providers, such as the Mississippi clinic at the center of the Roe court battle that relocated to southern New Mexico in early August.
One of the largest abortion providers in Texas, Austin-based Whole Woman's Health, also still has plans to move some of its operations to New Mexico and states in the southeastern U.S.
The Commission on the Status of Women in a resolution read Wednesday made clear its focus on protecting access to abortions, protecting health care providers and expanding access to what the panel called a full spectrum of pregnancy care — which includes abortions as well as post-birth care.
Commission Chairwoman Lisa Curtis said there needs to be a special emphasis on underserved areas across the rural state and investment in programs that will develop a pipeline of trained health care providers.
New Mexico lawmakers last year repealed a dormant 1969 statute that outlawed most abortion procedures as felonies, thus ensuring access to abortion following the Supreme Court's action. Some Democratic lawmakers said Wednesday that they will push for measures during the next legislative session to further enshrine access and protections in state law.
The governor said the work being done by her allies in the Legislature and advocacy groups is saving women's lives.
"The notion that women cannot have control over their bodies, dignity, respect and autonomy is outrageous," Lujan Grisham said. "This is a state that is not going to let that be the status quo."
Researchers: Pretrial detention plans wouldn't reduce crime - Associated Press
Legislative proposals intended to make it easier to keep certain criminal defendants in jail while awaiting trial would have done little to reduce crime, according to a study by researchers at the University of New Mexico and the Santa Fe Institute.
The findings, disseminated Tuesday by state court officials, were based on a review of more than 15,000 people charged with felonies from July 2017 through June 2021. The researchers found that more people who would not be re-arrested if allowed to remain free would instead have been jailed if lawmakers would have adopted changes to the state's pretrial detention system.
According to the study, the proposals would have resulted in least 20 presumed innocent people being jailed to potentially prevent one individual from being arrested on a violent felony charge while awaiting trial.
"Despite the presumed intentions of policymakers, these proposals do not accurately target the small fraction of defendants who will be charged with new serious crimes if released pretrial," the researchers stated. "Instead, they cast a wide net, recommending detention for a large number of defendants who would not receive any new charges during the pretrial period."
The study comes as New Mexico politicians continue to debate how best to address what many have described as a revolving door in the state's criminal justice system and persistently high crime rates.
Frustration has grown among victims' families, law enforcement officers, prosecutors and Democratic Gov. Michelle Lujan Grisham, who is running for reelection.
Nora Meyers Sackett, the governor's spokeswoman, said Lujan Grisham supports keeping violent defendants in jail pending trial.
"This very study references nearly 100 defendants who were charged with new violent felonies while on pre-trial release," she said. "That's nearly 100 victims and families who were subjected to violence due to an offender's violence not being given appropriate consideration."
The study considered a variety of factors that would be considered presumptions for pretrial detention. Those include current charges, past convictions, failures to appear at court hearings and previous violations of conditions of release.
Currently, people charged with a felony can be held without bond only if prosecutors can persuade a judge that no conditions of release would protect the public, or that a defendant is unlikely to appear in court.
Researchers found that under the current system, about 4 in 5 defendants who were released remained arrest-free pending trial.
One legislative proposal considered during the last session would have created a presumption that defendants should be held if they are charged with a serious violent offense, such as crimes involving a firearm.
According to the study, at most 8% of the defendants the researchers identified are charged pretrial with a new violent crime and at most 5% are charged with a new violent felony.
"The chances a pretrial defendant will commit a first-degree felony during their pretrial release is literally one in one thousand," Santa Fe Institute scientist and mathematician Christopher Moore told the Santa Fe New Mexican.
Moore told the Albuquerque Journal that when someone is denied bond there can be consequences to them and their families.
"They can lose jobs, housing, custody of their kids and so on," he said. "We don't hear about those costs as much as we hear about the terrible cases where someone is released and does do something awful."
Lawyers: Eastman advised to plead the Fifth in Georgia probe - By Kate Brumback Associated Press
Lawyers for John Eastman, a lead architect of some of Donald Trump's efforts to remain in power after the 2020 election, said Wednesday they advised their client to assert attorney-client privilege and invoke his constitutional right to remain silent when testifying before a special grand jury investigating possible illegal election interference in Georgia.
Charles Burnham and Harvey Silverglate confirmed in a statement that Eastman had appeared before the panel in Fulton County, complying with a summons from the district attorney. They declined to comment on the questions or testimony, citing respect for the secrecy of the grand jury process.
Eastman is one of a number of Trump advisers, attorneys and allies whose testimony Fulton County District Attorney Fani Willis has sought to compel in the case. Former New York mayor and Trump attorney Rudy Giuliani, who's been told he may face criminal charges in the investigation, testified in mid-August. U.S. Sen. Lindsey Graham, a South Carolina Republican, is fighting his subpoena. Willis filed petitions last week seeking the testimony of former White House chief of staff Mark Meadows and Trump-allied attorney Sidney Powell, among others. And conservative attorney L. Lin Wood Jr. said this week he's been told Willis wants him to appear.
Willis' investigation began early last year, shortly after a recording of a Jan. 2, 2021, phone call between Trump and Georgia Secretary of State Brad Raffensperger became public. In that call, Trump suggested the state's top election official could "find" the votes needed to overturn his narrow loss in the state. But it has become clear that the scope of the probe has broadened considerably since then.
In their statement Wednesday, Eastman's attorneys accused Willis of embarking on "an unprecedented path of criminalizing controversial or disfavored legal theories."
As Trump and his allies began a campaign to spread false claims about the election, Eastman circulated what was essentially an academic proposal challenging the workings of the 130-year-old Electoral Count Act that governs the process for tallying the election results in Congress.
The first part of the plan was to put in place a slate of "alternate" electors in seven battleground states to sign certificates falsely stating that Trump, not Democrat Joe Biden, had won their states. Willis has told the 16 Georgia Republicans who joined that effort that they are targets of her investigation.
The second part of the proposal involved convincing then-Vice President Mike Pence to refuse to count some of the electoral votes won by Biden when presiding over Congress the certification of election results on Jan. 6, 2021. But Pence refused to stray from his ceremonial role that day, even as Trump supporters broke into the Capitol, chanting for him to be hung.
Wood, who sued unsuccessfully to block the certification of Georgia's election results, said Wednesday that he's willing to testify before the special grand jury.
Wood said a lawyer who represents him in a separate matter told him late last week that Willis' office wants to subpoena him to testify. But he said he hadn't received a formal request and didn't know when they would want to see him.
"If they want to ask me questions, I'm happy to answer them," Wood told The Associated Press by phone. "I have nothing to hide."
Wood has long been known for his representation of high-profile clients — including Richard Jewell, who was wrongly accused in the 1996 Olympic bombing in Atlanta — particularly in defamation cases.
In a document filed last week seeking to compel Powell's testimony, Willis noted that Wood hosted meetings at his home in South Carolina "for the purpose of exploring options to influence the results of the November 2020 election in Georgia and elsewhere." Powell asked Wood, who's licensed as a lawyer in Georgia, to help find Georgia residents who would be willing to serve as plaintiffs in lawsuits contesting the election results in the state, the petition says.
Wood said he didn't know Powell well at the time but that she got in touch and asked if a group could meet at his home in late November 2020. He agreed to reach out to some prominent Georgia Republicans on Powell's behalf, but said he doesn't remember exactly who he called and whether they ended up joining any lawsuit filed by Powell.
The lawsuits filed by Powell and Wood were among many that were filed around the country in the wake of the 2020 election, many of them claiming that widespread election fraud had occurred. The lawsuits were ultimately dismissed, and state and federal election officials have consistently said there was no evidence of widespread fraud in the election.