Yesterday the U.S. Supreme Court declined to hear arguments from New Mexico landowners who sought to overturn a decision made by the state Supreme Court on Sept. 1. That decision upheld the public’s right to access rivers and streams that flow over private property.
In ruling for public stream access, the New Mexico Supreme Court reaffirmed the public’s longstanding right to walk and wade on streambeds for fishing or other recreation—so long as those streambeds could be accessed without trespassing over privately owned dry land.
“We hold that the public has the right to 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.
A challenge to this decision by private landowners seemed inevitable. Proponents of privatizing the state’s rivers and streams told Outdoor Life in August that it “represented a taking” by the government. This was the main argument in the petition that was later filed by Chama Troutstalkers, LLC and Z&T Cattle Co., LLC. By denying their petition on Feb. 27, the highest court in the land capped off a drawn-out legal battle and reaffirmed the state’s written opinion that private landowners cannot exclude fishermen, boaters, and other recreationists from publicly accessible waters.
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“It preserves the New Mexico Supreme Court’s ruling affirming the public’s constitutional right to use our rivers for recreation,” said Seth T. Cohen, one of the lawyers representing the pro-public access crowd. “This should hopefully put an end to the efforts by a fortunate few to privatize New Mexico’s rivers.”
The State Supreme Court Issues Written Opinion Saying All Streams Are Public
Sept. 1, 2022. Today the New Mexico Supreme Court published its written opinion on a lawsuit regarding stream access in the state. It represents a decisive win for anglers and public access advocates in New Mexico, and it brings some clarity to a complex issue that has sparked similar legal battles in other Western states.
“This is a good day for fishermen,” says Ben Neary, the conservation director for the New Mexico Wildlife Federation, one of three petitioners in the lawsuit that was originally filed against the State Game Commission in 2020.
The court’s long-awaited opinion further clarifies its March 1 oral decision, which overturned a State Game Commission rule that allowed private landowners to exclude the public from streams flowing through their property. This unanimous decision, as many anglers interpreted it, effectively re-established the public’s constitutional right to wade and fish in these streams.
As we reported in August, however, private landowners and their supporters have argued in the time since that until the court released a written opinion, they maintained their view that wading and fishing in streams flowing through private property amounted to trespassing. We also learned first-hand that anglers lawfully fishing those streams were in a sort of legal limbo wherein they could still face intimidation and threats with little recourse.
The court’s issuance of a formal opinion on Sept. 1 officially closes the chapter on this period of uncertainty.
The justices backed up their opinion with a 1945 state Supreme Court case that was—until now—the only case in state history that dealt directly with the stream access issue. They also cited the New Mexico State Constitution, which says that all streams and water bodies in New Mexico are public waters.
“Article XVI, Section 2 [of the state constitution] conveys to the public the right to recreate and fish in public water. The question here is whether the right to recreate and fish in public water also allows the public the right to touch the privately owned beds below those waters,” the court stated in its formal opinion. “We conclude that it does.”
The court explained that the public’s right to fish and recreate in New Mexico streams has always superseded a private landowner’s right to exclude the public from privately owned streambeds. The justices stressed that as long as the public does not trespass on privately owned lands to access public water, they have every right to walk on and float over these streambeds in order to fish.
“We’re pretty pleased with the formal opinion from the court, and we’re not surprised,” Neary says. “It’s a pretty clear endorsement of what they said back in March, and a repetition of what the supreme court said in its 1945 Red River decision.”
Nearby also made the important point that the state Supreme Court’s decision does not give the public any new rights, but instead restores a right that was taken away from the public generations ago.
“Today’s ruling makes it very plain that the public has a right to recreate and fish in these waters. But this is nothing new,” he says. “We’re reclaiming something that we should have had all along. We’re just taking back what’s always been ours.”
This article was updated on Feb. 28, 2023 to include the decision that was made by the U.S. Supreme Court on Feb. 27.