Adobe Whitewater Club v. State Game Comm’n
2022-NMSC-020 (2022)
Rule of Law:
Under the New Mexico Constitution, the public's right to recreate and fish in public waters includes the privilege to perform acts reasonably necessary for the enjoyment of that right, such as walking or wading on privately owned streambeds, irrespective of the navigability of the water.
Facts:
- Article XVI, Section 2 of the New Mexico Constitution declares that the unappropriated water of every natural stream within the state belongs to the public.
- In 1945, the New Mexico Supreme Court, in State ex rel. State Game Commission v. Red River Valley Co., held that Article XVI, Section 2 conveys to the public the right to recreate and fish in public water.
- In 2015, the New Mexico Legislature amended NMSA 1978, Section 17-4-6, by adding Subsection C, which stated that no person shall walk or wade onto private property through non-navigable public water or access public water via private property without the landowner's express written consent.
- The New Mexico State Game Commission (Commission) promulgated a series of regulations (19.31.22 NMAC) outlining a process for landowners to obtain a certificate to close public access to segments of public water flowing over their private property.
- The Regulations closed access to the 'riverbed or streambed or lakebed' located on private property, allowing landowners to exclude the public from public water if it involved walking or wading on the privately owned bed.
- Under the Regulations, landowners could be issued signs from the Commission, which served as prima facie evidence that the property was private, subjecting members of the public to criminal trespass citations if they touched the closed riverbed or streambed.
- To obtain a certificate and signage, landowners were required to provide substantial evidence that the waters within their property were 'non-navigable' at the time of statehood, defined as not used for commerce in their ordinary and natural condition.
- The New Mexico State Game Commission conceded in its answer brief that the Regulations conflicted with Article XVI, Section 2 of the New Mexico Constitution.
Procedural Posture:
- Adobe Whitewater Club of New Mexico, New Mexico Wildlife Federation, and New Mexico Chapter of Backcountry Hunters & Anglers (Petitioners) filed a verified petition for prohibitory mandamus in the New Mexico Supreme Court, seeking to nullify any certificates issued under the Regulations and to enjoin the New Mexico State Game Commission from enforcing the Regulations.
- The New Mexico State Game Commission (Respondent) filed an answer brief in response to the petition.
- The New Mexico Supreme Court granted leave for Chama Trouttalkers, LLC, and numerous other private property owners (Intervenors-Respondents) to intervene in the mandamus proceeding.
- The New Mexico Supreme Court assumed original jurisdiction over the petition under Article VI, Section 3 of the New Mexico Constitution.
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Issue:
Does the public's constitutional right to recreate and fish in public waters, as established by Article XVI, Section 2 of the New Mexico Constitution, include the privilege to walk or wade on privately owned riverbeds beneath those waters when such acts are reasonably necessary for the enjoyment of that right?
Opinions:
Majority - Vigil, Justice
Yes, the public's constitutional right to recreate and fish in public waters includes the privilege to walk or wade on privately owned riverbeds beneath those waters when such acts are reasonably necessary for the enjoyment of that right. The Court determined that Article XVI, Section 2 of the New Mexico Constitution, which declares natural waters to 'belong to the public,' establishes a broad public right that includes recreation and fishing, as confirmed by State ex rel. State Game Commission v. Red River Valley Co. This public easement is not limited by the ownership of the streambed, as the federal 'navigability' test is used to determine riverbed title, not the scope of public water use, which is a matter of state law under the public trust doctrine. The Court explicitly rejected the premise that private ownership of the bed below public water grants landowners an exclusive right to fishery or recreation in a manner that obstructs the public's use of the water itself. It reasoned that prohibiting acts reasonably necessary for enjoying recreation and fishing, such as touching the streambed, would effectively reinstate the common-law rule of exclusive fishery, which Red River rejected. The Court found support in its prior adoption of the dissenting view in Hartman v. Tresise (Colo. 1905), which stated that if public rivers and water belong to the people, they have a right of way in the bed for all purposes consistent with the constitutional grant. Aligning with Conatser v. Johnson (Utah 2008), the Court concluded that walking and wading on privately owned beds beneath public water are reasonably necessary for the effective enjoyment of many forms of fishing and recreation. Therefore, the Regulations, which closed access to public water based on a finding of nonnavigability—a basis expressly rejected in Red River for limiting public use—are unconstitutional. Furthermore, the Court determined that Section 17-4-6(C) of the New Mexico Statutes must be read to avoid constitutional concerns. This constitutional reading permits the statute to prohibit trespass onto private property to access public water or from public water onto private land, but not to restrict incidental contact with the streambed while in public water. Consequently, the Commission lacked statutory authority to promulgate regulations that conflicted with this constitutional interpretation. Finally, the Court clarified that its holding does not constitute a judicial taking, as Article XVI, Section 2 is declaratory of prior existing law. Any private title to riverbeds was already subject to the public’s pre-existing easement in public waters, tracing back to Spanish and Mexican dominion, which the United States government has consistently recognized.
Analysis:
This landmark decision solidifies the public's right to access and use New Mexico's public waters for recreation, including activities that require incidental contact with privately owned streambeds. By explicitly recognizing walking and wading as 'reasonably necessary' acts for the enjoyment of public waters, the ruling significantly expands practical public access. It reinforces the robust application of the public trust doctrine in New Mexico, asserting the state's sovereignty over public water use over private property interests in submerged lands. The decision also serves as a critical check on administrative agencies, clarifying that their regulatory authority cannot supersede constitutional mandates or exceed statutory grants of power, particularly when such regulations infringe upon established public rights.
