The New Mexico Supreme Court has released its reasoning for ruling earlier this year that members of the public have the right to access public rivers and streams that flow through private property.
The court released its slip opinion on Sept. 1 that addresses whether the right to recreate and fish in public water extends to the right to touch the privately owned water beds below those waters; the court concluded that it does.
“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 court wrote in the opinion. “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 opinion provides legal reasoning for the court’s decision announced from the bench in March that the New Mexico State Game Commission was unauthorized to permit property owners to close public access to waters on their land.
Background
In early 2018, the commission’s rule that authorized landowners to obtain a certificate allowing them to close public access to public water flowing over private property went into effect. Specifically, access would be closed to the riverbed, streambed or lakebed on private property. The reasoning was that since a private landowner holds title to the bed below public water, the landowner could exclude public water access if it involved walking or wading on the privately owned bed.
A group of nonprofit organizations filed suit against the commission for allowing landowners to block access, and a slew of ranches and industry organizations intervened in the suit.
“The public right to recreational use and access to the waters of New Mexico within private property was confirmed some seventy years ago by the Court. … The decision remains unchallenged,” Adobe Whitewater Club of New Mexico, New Mexico Wildlife Federation, and the New Mexico chapter of Backcountry Hunters and Anglers wrote in their petition.
In a letter to Gov. Michelle Lujan Grisham (D) in August 2019, the Adobe Whitewater Club of New Mexico, the New Mexico state board of the American Canoe Association and the New Mexico River Outfitters Association wrote:
“Three wealthy landowners—including two non-resident Texans—through the extensive efforts of their well-connected Republican lawyer-lobbyist and former Governor Martinez’s reactionary Game Commission—have denied New Mexicans their constitutional rights of public access to the public rivers running through five of their properties.”
At the time, five certificates blocking public access had been granted by the commission, and three certificates were pending.
The justices concluded that the commission’s regulations unconstitutionally infringed on the public’s right to use waters and that the commission lacked the authority to promulgate the regulations. The court heard verbal arguments in March and ordered the commission to withdraw the unconstitutional regulations.
The court noted in its September opinion that New Mexico is not alone in recognizing that the title to water beds is immaterial in determining the scope of public use. The court acknowledged Montana, Idaho, Iowa, Minnesota, North Dakota, Oregon, Utah, Wyoming and South Dakota also recognize that public ownership and use of water is distinct from bed ownership.
“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 court concluded. — Anna Miller, WLJ managing editor
