New Mexico Supreme Court: Public May Access Streams on Private Property

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?

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.”

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...MORE