American Whitewater has been working on protecting the public’s constitutional right to stream access in New Mexico. We are a member of the New Mexico Paddlers Coalition who have been at the center of legal action to assure the public’s right to recreate on rivers, supported fence removal and replacement with paddler friendly options, and lead stewardship projects on popular river reaches across the state.
In March of 2020, our affiliate club, Adobe Whitewater Club, along with the New Mexico Wildlife Federation and New Mexico Chapter of the Backcountry Hunters and Anglers brought a case against the state’s Game and Fish Commission for promulgating a rule the plaintiffs claimed to be unconstitutional. The rule allowed for private landowners to apply for a certification that a river of stream flowing through their property was non-navigable. If determined so by the commission, landowners are issued signs indicating that the property is private and subject to the rules and laws of trespass and if the public are at risk of being cited for criminal trespass if they set foot on the bed or banks of the waterway.
American Whitewater engaged in public comments on all ten of the non-navigable certifications applied for, before this case was in from of the state Supreme Court. Since the game commission rule went into effect in 2017, the commission had granted five applications from landowners to certify waters as “non-navigable” on New Mexico waterways, including stretches of the Rio Chama and Pecos River, popular paddling destinations. After securing the certifications, landowners denied public access to the waters, in some instances placing barbed and concertina wire fences across the rivers that prevent downstream boat passage.
In a unanimous opinion issued in September of 2022, the New Mexico Supreme Court made explicit what the state constitution and prior case law implied – that the public has the right to access and recreate on all rivers and streams in the state, regardless of navigability. They clearly state that, in 1945, this court determined that the public has the right to utilize public waters for recreation and fishing and today spelled out that the right includes “the privilege to do such acts as are reasonably necessary to effect the enjoyment of such rights”.
In the 1945 case, the court recognized the public’s right to use streams and streambeds where they run through private property as long as the public doesn’t trespass across private land to access the waters, or trespass from the stream onto private land. The court noted that under the Indian, Spanish and Mexican law that governed New Mexico before statehood, everyone had the right to fish in streams.
“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 states. “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.”