Federal Appeals Court Upholds NM Stream Access Law

By Ben Neary

NMWF

A federal appeals court has ruled against a group of New Mexico landowners who had challenged the public’s right to fish and recreate on rivers and streams that cross private land.

A federal appeals court in Denver on Tuesday rejected the appeal from landowners in Rio Arriba and San Miguel counties. The decision upholds last year’s ruling by U.S. District Judge Kea Riggs of New Mexico. 

The landowners had sued New Mexico Attorney General Raul Torrez, members of the State Wildlife Commission and the director of the New Mexico Department of Wildlife. Torrez’s office has taken action to force landowners on the Pecos River and elsewhere to remove fences, blockades and signs that had prevented public fishing and boating.

Represented by the Pacific State Legal Foundation, the landowners had asked the appeals court to block state officials from enforcing a 2022 New Mexico Supreme Court ruling that upheld the public’s right to fish and recreate on rivers and streams that cross their private lands.

The New Mexico Supreme Court ruling came in response to a lawsuit filed 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 landowners’ lawsuit asserted that the state supreme court ruling and subsequent state actions to open rivers and streams to public access violated the landowners’ right to exclude people from their private property. They claimed the state was violating their constitutional right to be compensated for any government taking of their private property rights.

Lawyers with the New Mexico Department of Justice represented the state in the most recent federal appeal. The state lawyers argued that the landowners never had the right to exclude the public from accessing rivers and streams. Accordingly, they said that the landowners suffered no injury when the state began enforcing the public’s right of access.

“The ruling supports New Mexico’s longstanding constitutional protection of public waters, and NMDOJ will continue to closely guard the public’s right of access to these cherished waterways,” the office stated in a release on Tuesday.

A three-judge panel of the appeals court heard the case. 

Two of the appellate judges signed the majority decision stating that the facts before them supported the conclusion that the landowners never had the right to exclude the public from rivers and streams. The third judge wrote a dissent, saying generally that the appeals court should send the case back to Riggs for further consideration of the landowners’ argument that the New Mexico Supreme Court ruling amounted to a “judicial taking” of their private property rights.

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.

The New Mexico Supreme Court ruling court followed a similar ruling by the court in 1945. Both rulings 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 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 greatly appreciates New Mexico Attorney General Raul Torrez and his team for their unwavering commitment to ensure that New Mexicans have equitable access to the natural resources that belong to all of us,” said Jesse Deubel, executive director of the NMWF. “The AG’s work on stream access in New Mexico has required years of investment in both time and energy. That investment is paying off for our residents today and will continue to provide opportunity for future generations of New Mexicans.”