By Ben Neary
NMWF Conservation Director
A federal judge has dismissed a lawsuit filed by a group of New Mexico landowners who challenged the public’s right to fish and recreate on rivers and streams that cross private land.
U.S. District Judge Kea W. Riggs issued an order Jan 16 dismissing the lawsuit in which landowners in Rio Arriba and San Miguel County had sued the state attorney general, members of the state game commission and the director of the New Mexico Department of Game and Fish.
The landowners, represented by the Pacific States Legal Foundation, had asked the federal court to block the state officials from prohibiting them to exclude the public from rivers and streams that cross their private lands.
Their lawsuit asserted that a 2022 ruling by the New Mexico Supreme Court, and subsequent state actions to open rivers and streams to public access, violated the landowners’ right to exclude people from their private property. They also claimed the court ruling violated their constitutional right to be compensated for any government taking of their private property rights.
In granting the state’s motion to dismiss the lawsuit, Riggs stated the public’s right to access public waters exists whether the state officials act to enforce it or not. “Absent constitutional amendment or the New Mexico Supreme Court reversing its position, landowners remain powerless to remove members of the public from their streambeds with or without executive enforcement, and therefore, their injury will remain,” the judge wrote.
In its 2022 ruling, the New Mexico Supreme Court reaffirmed the public’s right to fish, boat and otherwise recreate on rivers and streams that flow over private land. The court emphasized that members of the public may not trespass across private lands to reach the water, nor trespass from the water across private property.
“I am proud to announce a decisive victory in federal court, affirming the public’s constitutional right to access and enjoy our state’s public waters,” said NM Attorney General Raul Torrez, whose office defended the case. Lawyer Mark T. Baker was a principle attorney in handling the state’s case.
“The court’s ruling sends a clear message: individuals attempting to restrict public recreation in these waters are wrong on the law—both at the state and federal level,” Torrez said. “This outcome underscores the strength of our state’s constitution and the fundamental rights it guarantees to every New Mexican. We commend our exceptional legal team for their diligent and efficient work in defending these rights and ensuring that the law is upheld.”
The New Mexico Supreme Court ruling court followed a similar ruling by the court in 1945. Both noted that the New Mexico State Constitution specifies that all waters in the state are public. The public’s right to access the waters traces back through statehood, territorial times and through Mexican, Spanish and Indian rule, the court rulings noted.
The most recent state supreme court ruling held that there was no issue of taking of landowners’ property involved in reaffirming the public’s right to access the waters of the state because landowners have never possessed the right to exclude people from using 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 regulation purported to allow landowners to close streams over their properties to public access once the commission certified they were non-navigable.
The United States Supreme Court in early 2023 declined a request from some other landowners who had fenced off public waters to reconsider the state court ruling. Those landowners also raised the claim that the state court action amounted to an uncompensated taking of private property.
“The New Mexico Wildlife Federation is deeply appreciative of Attorney General Torrez and his team standing up for the rights of all New Mexicans,” said Jesse Deubel, executive director of the NMWF.”
“All New Mexico residents enjoy the right to fish, boat and recreate on the rivers and streams in our state,” Deubel said. “This priceless right that comes down to us through the history of New Mexico. It’s a right that we must all fight to preserve.”