Rancho Del Oso Pardo, Inc. v. N.M. Dep't of Game & Fish

508 F.Supp.3d 867

RANCHO DEL OSO PARDO, INC. ; River Bend Ranch, LLC ; and Chama III, LLC d/b/a Canones Creek Ranch, Plaintiffs,

v.NEW MEXICO DEPARTMENT OF GAME AND FISH; Michael Sloane, director of the New Mexico Department of Game and Fish, in his individual and official capacity ; New Mexico Game Commission; Sharon Salazar Hickey, chair of the New Mexico Game Commission, in her individual and official capacity ; Roberta Salazar-Henry, vice-chair of the New Mexico Game Commission, in her individual and official capacity ; Jimmy Bates, member of the New Mexico Game Commission, in his individual and official capacity ; Gail Cramer, member of the New Mexico Game Commission, in her individual and official capacity ; Tirzio Lopez, member of the New Mexico Game Commission, in his individual and official capacity ; David Soules, member of the New Mexico Game Commission, in his individual and official capacity ; and Jeremy Vesbach, member of the New Mexico Game Commission, in his individual and official capacity, Defendants.

CIV 20-427 SCY/KK (as consolidated with CIV 20-468 SCY/KK)

United States District Court, D. New Mexico.

Filed December 21, 2020

William D. Winter, Mark L. Ish, Gregory Smithkier, Felker Ish Ritchie Geer & Winter, PA, Marco Estevan Gonzales, Modrall Sperling Law Firm, Santa Fe, NM, Jeremy K. Harrison, Modrall Sperling Roehl Harris & Sisk PA, Albuquerque, NM, for Plaintiffs.

Christopher A. Dodd, Joseph Goldberg, Michael L. Goldberg, Freedman Boyd Hollander Goldberg Ives & Duncan PA, Vincent J. Ward, Freedman Boyd Hollander Goldberg Urias & Ward, P.A., Albuquerque, NM, for Defendants New Mexico Department of Game and Fish, Michael Sloane.

Aaron J. Wolf, Sam W. Minner, Cuddy & McCarthy, LLP, Matthew R. Baca, Tania Maestas, Office of the Attorney General, Santa Fe, NM, for Defendant New Mexico Game Commission.

Aaron J. Wolf, Sam W. Minner, Cuddy & McCarthy, LLP, Santa Fe, NM, for Defendants Sharon Salazar Hickey, Roberta Salazar-Henry, Jimmy Bates, Gail Cramer, Tirzio Lopez, David Soules, Jeremy Vesbach.

MEMORANDUM OPINION AND ORDER DENYING MOTIONS TO STAY AND GRANTING IN PART MOTIONS TO DISMISS

STEVEN C. YARBROUGH, UNITED STATES MAGISTRATE JUDGE

This matter comes before the Court on consolidated cases that seek enforcement of New Mexico Administrative Code ("NMAC") Section 19.31.22. This regulation provides a process by which property owners whose property abuts waterways can seek a certification and signage that the waterway is non-navigable and closed to the public. Plaintiffs are companies and LLCs that own ranches along rivers and who submitted, or planned to submit, applications for certification pursuant to Section 19.31.22. They bring suit against: (1) the New Mexico Department of Game and Fish (the "Department") and its director, Michael Sloane¹ and (2) the New Mexico Game Commission (the "Commission") and its individual members ("Commissioners").² Plaintiffs seek a writ of mandamus or, in the alternative, declaratory judgment, compelling Defendants to issue certificates as set forth in Section 19.31.22. They also seek damages under Section 1983 for denial of constitutional rights.

Presently before the Court are two sets of motions: (1) Motions to Stay filed by both sets of Defendants seeking to stay this matter pending the outcome of the New Mexico Supreme Court case Adobe Whitewater Club of New Mexico v. Honorable Michelle Lujan Grisham , No. S-1-SC-38195 (N.M. filed Mar. 13, 2020) ("Adobe Whitewater "); and (2) Motions to Dismiss filed by the Department and Director Sloane based in part on qualified immunity. Case precedent dictates that district courts prioritize issues related to qualified immunity and so the Court addresses those issues first. Addressing those issues, the Court concludes that Director Sloane is entitled to qualified immunity on Plaintiffs’ claims for violation of substantive due process and equal protection. However, the Court will allow Plaintiffs an opportunity to amend their Complaints. Thus, the Court grants in part the Motions to Dismiss.

Because the Court addresses qualified immunity and the Motions to Dismiss, it denies the Motions to Stay.

BACKGROUND

At the heart of this case is the Stream Access Law, enacted by the New Mexico Legislature and effective July 1, 2015. This law provides:

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 the private land has expressly consented in writing.

NMSA § 17-4-6(C). Following that statute, the New Mexico Game Commission issued Section 19.31.22, which establishes "rules, requirements, definitions and regulations implementing the process for a landowner to be issued a certificate and signage by the director and the commission that recognizes that within the landowner's private property is a segment of a non-navigable public water, whose riverbed or streambed or lakebed is closed to access without written permission from the landowner." 19.31.22.6 NMAC. Plaintiffs bring these consolidated lawsuits to enforce Section 19.31.22.

1. Factual Background

Because this matter is before the Court on motions to dismiss, the Court accepts the following facts Plaintiffs set forth in their Complaints as true.³

Section 19.31.22 describes a process through which landowners can apply for and obtain a certification regarding the non-navigable water that abuts their land. Rancho , Doc. 1-1 ¶ 17. The application process requires the landowner to submit specific information, according to Section 19.31.22.8(B). Id. ¶ 18. Once the landowner submits the required information, it "shall be accepted for further consideration ... without regard to the merits of the application," and "shall be forwarded by the department to the director so that a determination can be made by the director whether the application meets the requirements set forth in 19.31.22.8 NMAC." Id. ¶¶ 18-19. The director has 60 days to determine if the application meets the requirements of Section 19.31.22.8 and to make a written determination and recommendation or a written rejection to the commission. Id. ¶¶ 19-20. Upon the director's recommendation, the commission shall hear the matter at a regular or special meeting. Id. ¶ 20. Within 60 days of the commission's meeting, the commissioner "shall issue its written final agency action and decision with the factual and legal basis for that decision." Id. ¶ 21. If the commission finds that a segment should be designated a non-navigable public water, then the director must issue the certificate immediately following the written final agency decision. Id. In accordance with the process, the Game Commissioner has certified a number of rivers and streams as being non-navigable and granted a number of applications submitted by similarly situated landowners. Id. ¶¶ 22, 45.

Plaintiff River Bend Ranch submitted an application for certification to Director Sloane on September 27, 2019 that complied with all requirements of Section 19.31.22. Id. ¶¶ 23-24. On November 25, 2019, Director Sloane issued a letter to the Commission regarding applications by Plaintiffs River Bend Ranch and Canones, stating that "[w]hile the application provides similar information to applications approved by the previous Commission, given recent advice by the Office of the Attorney General regarding 19.31.22 NMAC and recent Commission direction, I cannot recommend approval of the application." Id. ¶¶ 25, 27. For their part, River Bend Ranch and Canones sent correspondence to the Director demanding that he provide the Commission with a recommendation of approval or rejection as Section 19.31.22 requires; the Director failed to respond. Id. ¶¶ 26, 28.

Similar to Plaintiff River Bend Ranch, Plaintiff Rancho del Oso Pardo also submitted an application to Director Sloane (sent November 20, 2019) that complied with all the requirements of Section 19.31.22. Id. ¶¶ 29-30. Plaintiff Rancho del Oso Pardo, however, received a different outcome. On January 19, 2020, Director Sloane issued a formal recommendation on Rancho del Oso Pardo's application, stating that "the application, as submitted, provides the information required by the Landowner Certification of Non-navigable Water Rule 19.31.22 NMAC [and] I have determined and recommend, pursuant to the current rule and the application, that the Rancho del Oso Pardo, Inc., segment of the Chama River be designated as a non-navigable public water." Id. ¶ 31.

After receiving their respective letters from Director Sloane, Plaintiffs River Bend Ranch, Canones, and Rancho del Oso Pardo sent correspondence to the Commission and each of the Commissioners requesting that the Commission schedule a meeting, which it never did. Id. ¶ 32. However, on March 4, 2020, Director Sloane filed a Declaratory Judgment Action in state district court that asks the state court to "address[ ] the legal question of whether, and under what circumstances, a private landowner may exclude members of the public from fishing in public waterways that flow through the landowners’ property," but does not ask the court to invalidate Section 19.31.22. Fenn Farm , Doc. 1-1 ¶¶ 29-30.⁴ Five days later, on March 9, 2020, the Commission placed a banner on the "Landowner Certification of Non-Navigable Water Segment" section of its webpage, stating that "The Department is not currently considering any new applications under this program (Effective 04-09-2020)." Rancho , Doc. 1-1 ¶ 33. Accordingly, Plaintiffs believe that the Commission does not intend to act in accordance with the regulation in relation to Plaintiffs’ applications. Id. ¶ 34.

Despite this posting, on March 13, 2020, Plaintiff Fenn Farm attempted to hand-deliver a completed application to the Commission, which the Commission refused to accept. Fenn...