ALBUQUERQUE – 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 comes after 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.
