The New Mexico Supreme Court faced the following question in Adobe Whitewater Club of New Mexico v. New Mexico State Game Commission: Does the right to recreate and fish in public water also allow the public the right to touch the privately owned beds below those waters?

Photo by Max Andrey via Pexels

Background

Under the New Mexico Constitution, “the unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public.”  In 1945, the New Mexico Supreme Court held this Constitutional provision includes the right for the public to recreate and fish in public water.

In 2015, the New Mexico Legislature amended NMSA 1978, Section 17-4-6 by adding the following sentence:  “No person engaged in hunting, fishing, trapping, camping, hiking, sightseeing, the operation of watercraft or any other recreational use shall walk or wade onto private property through non-navigable public water or access public water via private property unless the private property owner or lessee or person in control of private lands has expressly consented in writing.”

Acting under the 2015 statutory amendment, the New Mexico State Game Commission (NMSGC) passed regulations, 19.31.22 NMAC, in 2018. These regulations outlined a process for landowners to obtain a certificate allowing them to close portions of public water flowing across their property from public use. Essentially, the NMSGC passed the regulations on the basis that because the landowner holds title to the bed below the public water, the landowner may exclude the public from accessing public water if doing so involved walking or wading in the privately owned bed.  Once a landowner obtained the certificate and necessary signage to close portions of public water, the landowner was required to fill out an application explaining “substantial evidence which is probative of the waters, watercourse or rivers being non-navigable at the time of statehood, on a segment-by-segment basis.”  Per the regulations, a “non-navigable public water” is “a water that was not used at the time of statehood, in its ordinary and natural condition, as a highway for commerce over which trade and travel was or may have been conducted in the customary modes of trade or travel on water.”

Adobe Whitewater Club of New Mexico (Adobe) filed suit challenging the constitutionality of the regulations and seeking a writ of prohibitory mandamus. (A writ of mandamus is essentially an order from a court to a government official to properly fulfil their duties or correct an abuse of discretion.)

The NMSGC actually conceded that the regulations were unconstitutional in its briefing.  The Court, however, allowed several private property owners over whose land non-navigable waters flow (Intervenors) to intervene in the lawsuit.  The Intervenors argued that the mandamus relief should be denied because the regulations do not privatize or close public waters, but instead merely express the existing right to exclude trespassers on privately owned riverbeds.

The New Mexico Supreme Court had original jurisdiction over the lawsuit.  In March 2022, the Court held that the regulations were an unconstitutional infringement on the public’s right to use the public water and that the NMSGC lacked the authority to pass the regulations.  The Court issued the writ of mandamus instructing the NMSGC to withdraw the regulations as void and unconstitutional.

In its September 1, 2022 opinion, the Court explained its reasoning for doing so.

Opinion

The New Mexico Supreme Court issued a unanimous opinion authored by Justice Vigil. [Read Opinion here.]

Mandamus relief proper

First, the Court explained why mandamus relief was appropriate.  Although mandamus relief is usually applied to compel the performance of an affirmative act, it may also be used in appropriate circumstances to prohibit unconstitutional official action.  In considering whether to issue mandamus relief, courts do not consider the wisdom of the public official’s act, but decide whether the act goes beyond the bounds of the New Mexico Constitution.

Courts apply a three-part test to determine whether a writ of mandamus is proper: Is there a purely legal issue that (1) implicates fundamental constitutional questions of great public importance; (2) that can be answered on the basis of virtually undisputed facts; and (3) calls for an expeditious resolution that cannot be obtained through other channels.

The Court found all three factors present in this case.  (1) The scope of the public’s ownership rights of natural waters and the real property interests of private landowners are questions of great public importance.  (2) Whether the regulations are unconstitutional and whether the NMSGC can promulgate such regulations in the first place are both legal questions that can be decided on undisputed facts.  (3) The importance of the constitutional issue and need for clarification on public water access and private property ownership necessitates an expeditious resolution the NM Supreme Court is uniquely positioned to provide.

Natural water is state owned, beds may be private property

Second, the Court held that while natural water within the state belongs to the public, the beds and banks within which it is located may be privately owned.

The New Mexico Constitution provides that the “unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public….”  This was essentially a declaration of the pre-statehood approach to water ownership. In 1945, the Court determined that this Constitutional provision, along with pre-state law, established a “public right to recreate in the waters of New Mexico and that this right is equal to the right of the owners of the land near the water.”  The Court also noted that while the bed and banks of a body of water may be private, this ownership does not change the fact that the water next to the banks and above the bed is public.

The Court held that New Mexico law provides title to the bed and banks beneath the water is “immaterial” in determining the scope of public use for activities such as fishing and recreation.  “A determination on navigability only goes to who has title to the bed below the public water, not to the scope of public use”

Regulations are unconstitutional

Next, the Court held the regulations unconstitutional.  Adobe argued that if the public cannot use streambeds and banks in exercise of its right to public waters, then practically speaking, there could be no fishing or recreation rights on much of the public water in New Mexico. Intervenors argued that when a person walks on a bed or bank that is privately owned, that person is trespassing, and that a person’s right to use the public water is only interfered with when the landowner prohibits the person from floating on public water that can be used without walking and wading.

The Court held that “the public has the right to recreate and fish in public waters” and “this right includes the privilege to do such acts as are reasonably necessary to effect the enjoyment of such right.”  The ability to walk and wade on the privately owned beds beneath public water is “reasonably necessary” to enjoy many forms of fishing and recreation.  The Court also explained that the public has an easement in public waters, which includes fishing and recreational activities.

This right, however, is not without limitation.  The Court noted that the public may not trespass on privately owned land to access public water or trespass on privately owned land from public water.

Thus, because the regulations seek to close access to public water on a finding of non-navigability, they are unconstitutional.

Statute can be read to be constitutional

Then, the Court held that the statute, NMSA 17-4-6(C), can be read to avoid constitutional concerns.  The statute upon which the regulations relied provides that no person “shall walk or wade onto private property through non-navigable public water or access public water via private property unless the private property owner or lessee or person in control of private lands has expressly consented in writing.”

The Court held this statute can be interpreted in two ways.  First, it may mean that the public cannot walk or wade onto private property (excluding the beds of public water) from public water and the public cannot gain access to public water by crossing over private property.  This reading would be constitutional and in line with the Court’s explanation of the law here.  Second, however, the statute could be read to say the public cannot walk or wade on private property (including the beds of public water) from public water, and the public cannot gain access to public water by crossing private property.  This would be, like the regulations, an unconstitutional limitation on the public’s right to fish and recreate on public waters.

The statute can be read to avoid a constitutional question, and it is a well-established principle of statutory constitution that courts should avoid constitutional questions where possible.  Thus, the Court held that when the statute is read to avoid constitutional concerns, then it offers no support for the regulations.  Thus, the NMSGC lacked the statutory authority to pass the regulations.

No judicial taking

Finally, the Court noted that it’s ruling was not a judicial taking. Intervenors argued that the Court’s ruling allowing the public to take actions reasonably necessary to engage in the use of public water amounted to a judicial taking.  Intervenors based this claim on their ability to trace ownership of the riverbeds back the United States, meaning that these beds could not be subject to the public’s easement.  The Court was not persuaded.

The Court reasoned that this Constitutional provision regarding public water was actually merely a declaration of prior existing law having always been rule and practice of the Spanish and Mexican dominion. Thus, the waters at issue are, and have always been, public waters.  Even if the landowners can trace their riverbed ownership back, that does not negate the fact that the water therein is state-owned and may be utilized by the public. As stated by the New Mexico Attorney General in 2014, “It is clear that even if a landowner claims an ownership interest in a stream bed, that ownership is subject to a preexisting servitude (a superior right) held by the public to beneficially use the water flowing in the stream.

Conclusion

Thus, the Court held the regulations unconstitutional and that the NMSGC lacked the legislative authority to promulgate these regulations.  “The public has the right to recreate and fish in public waters and this right includes the right to do such acts as are reasonably necessary to effect the enjoyment of such right.”

What About Texas?

Texas law does not take the same approach as New Mexico law.  Here, the ownership navigability and the ownership of the bed and banks does determine the ability of the public to use the water.  Here, the bed and banks of a navigable stream is owned by the state and open to use by the public, where as the bed and banks of a non-navigable stream are privately owned and the public does not have a right of access or use.  To read more about Texas’ laws on this question, click here.