September 2, 2022

NM Supreme Court issues written opinion in stream access case

Andy Lyman

The New Mexico Supreme Court

The New Mexico Supreme Court on Thursday issued a written opinion regarding public access to river and stream beds that explained the court’s reasoning for a decision from the bench earlier this year. 

In March, the supreme court issued a ruling from the bench, after a brief deliberation, that river and stream beds are just as public as the water above them. On Thursday, in an opinion written by New Mexico Supreme Court Chief Justice Michael Vigil, the court further explained its unanimous decision.     

“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,” Vigil wrote. “We conclude that it does.”

The high court stressed that “the public’s easement includes only such use as is reasonably necessary to the utilization of the water itself and any use of the beds and banks must be of minimal impact.”

“Walking and wading on the privately owned beds beneath public water is reasonably necessary for the enjoyment of many forms of fishing and recreation,” Vigil wrote. “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 state supreme court’s opinion also stated that not only was it unconstitutional to bar wading or fishing in streams and rivers with privately owned beds, but that it was also unconstitutional for the New Mexico State Game Commission to issue regulations barring those activities on privately owned river beds. 

The Game Commission has since repealed the rule that allowed people to petition to have sections of water that flowed through their property closed to public access.

“We conclude not only that the Regulations are unconstitutional, but also that the Commission lacked the authority to promulgate the Regulations,” Vigil wrote. 

The legal battle goes back to 2015 when the New Mexico Legislature enacted a new section of existing law that prohibited access to privately owned river beds within non-navigable waters. That law change spurred a handful of environment and outdoor recreation groups to file a writ of mandamus, or a request for the court to intervene. NM Political Report previously wrote about the contention between those groups and a group of landowners who intervened in the case.