By: Deiona Camargo
Private landowners throughout the United States grew concerned when public waterways located on their property gained popularity during the pandemic.[i] “All the sudden, you went from 100 people a day on the river to 500.”[ii] Northern Illinois homeowners complained of drunk tubers who were “loud, tossing trash and even urinating on their property.”[iii] Concerned residents did not want people “stopping and partying ... getting out of the tubes” and walking onto their “riverbed property.”[iv]
From a different perspective, recreation users in New Mexico were outraged by landowners who tried to prohibit the public from accessing streams on their private properties.[v] Imagine yourself floating alongside a river in New Mexico and approaching what appears to be a dead end. It is not the sight of trees or boulders blocking your way. Instead, what lies ahead of the stream is an iron fence threaded with barbed wire.[vi] This sounds like the introduction to a horror novel, but this was a reality for some New Mexico residents, fueling the litigation in Adobe Whitewater Club v. State Game Commission.
In 2015, the New Mexico State Game Commission (hereinafter “Commission”) issued a series of regulations that allowed “landowners to obtain a certificate to close public access to segments of public water flowing over private property.”[vii] A New Mexico statute supported the regulation[viii] which stated any person engaging in recreational activity may not “walk or wade onto private property through non-navigable public water or access public water via private property unless the private property owner [h]as expressly consented in writing.”[ix] The extreme result of these laws is the example of the iron fence described above. Less radical measures included “no trespassing” postings on the land surrounding these public waters.[x] Ultimately, “people could [be] cited for trespass if they touched a streambed or lakebed on waters closed to access.”[xi]
In 2020, a group of recreational users and conservationist groups had enough and disputed the Commission’s non-navigable waters rule.[xii] They contended that the purpose of New Mexico’s Constitution is to “give rights [to] the public to wade in streams that cross private property, as long as they remain in the waterway.”[xiii] However, some private property owners found this to be trespassing and argued that the constitution merely grants people the right to use the waterways if they do not touch the bottom.[xiv]
On September 1, 2022, the Supreme Court of New Mexico published a unanimous 27-page opinion settling this debate over the right to stream access.[xv] The court ultimately ruled in favor of recreational users and conservationist groups.[xvi] Furthermore, in March, the court issued a writ of mandamus, ordering the Commission to withdraw the Regulations that allowed landowners to restrict access to public water flowing on their land as both void and unconstitutional.[xvii]
Article XVI, Section 2 of the New Mexico Constitution states, “The public ha[s] the right to recreate and fish in public waters and this right included the privilege to do such acts as were reasonably necessary to effect the enjoyment of such right.”[xviii] The court interpreted this constitutional reading to prevent landowners from taking any measures which might interfere with this right, including posting trespassing signs around public waterways.[xix] “We hold that the public has the right to recreate and fish in public waters and that this right includes the privilege to do such acts as are reasonably necessary to effect the enjoyment of such right.”[xx]
The New Mexico Supreme Court focused its decision specifically on “the right to touch the privately owned beds below [public] waters.”[xxi] However, during oral arguments, the respondents’ expressed concerns regarding the scope of such right to be on private riverbed property.[xxii] Asking the court: does this right include the right to “drive an ATV up and down the riverbed” because that’s how somebody chose to exercise their right to use the water?[xxiii] So long as they’re touching the riverbed, would that mean such activity is permitted?
Intervenors argued that the New Mexico statute “balanced the public's interest in recreating on with private ownership of land” by prohibiting users from walking or wading onto private property from these public waterways.[xxiv] “As the United States Supreme Court has explained, the right to exclude is ‘perhaps the most fundamental of all property interests’ and is protected by the United States Constitution.”[xxv] Intervenors further argued the “mandamus should be denied because the regulations do not privatize or close public waters, but instead express the existing right to exclude trespassers on privately owned riverbeds.”[xxvi] The court disagreed.[xxvii]
The court stated they understood the right to property but were trying to balance that right with the public right to use the water.[xxviii] However, this ruling does not support a true balance for landowners. Respondents focused its argument on the extent of the intrusion, not objecting to a public right to “float onto any private land” but arguing there must be a balance to protect property owners from people wandering on and around their property.[xxix] Take the aforementioned drunk tubers for example, they were floating on public waters but intruded onto private land for personal benefit.[xxx]
There is no doubt in my mind that the public has a right to float across water on private land. However, now that the court’s ruling in Adobe Whitewater Club v. State Game Commission allows the public to occupy these once-private riverbeds, I worry the new ruling will pose nuisance issues for private landowners. As such, this court should reconsider its ruling to truly balance the public rights to occupy water and private landowners’ interests in their land.
[i] Zach Nauth, Troubled Waters, ABA J. (Feb. 1, 2022, 4:00 AM), https://www.abajournal.com/magazine/article/troubled-waters [https://perma.cc/5UVN-34Y4].
[ii] Id. (quoting Brian Walaszek on discussed of increased water traffic in Illinois during 2020 COVID-19 pandemic).
[iii] Id. (quoting William Sima and Illinois property owners).
[iv] Id. (quoting William Sima).
[v] Cassidy Randall, Who Owns A River? The Question Is Tearing This Community Apart, HuffPost (June 20, 2020, 8:00 AM), https://www.huffpost.com/entry/rich-people-own-rivers-new-mexico_n_5ed90a4fc5b63cce95110234 [https://perma.cc/FV5M-3D6H].
[vi] NMStream Access Legal Action, Adobe White Water (Sept. 5, 2022), https://www.adobewhitewater.org/stream-access [https://perma.cc/CDQ3-SWUQ] (showing an image of the described fence).
[vii] Adobe Whitewater Club of N.M. v. N.M. State Game Comm'n, No. S-1-SC-38195, 2022 N.M. LEXIS 34, at *2-3 (N.M. Sept. 1, 2022).
[viii] N.M. Stat. Ann. § 17-4-6 (LexisNexis, Lexis Advance through the 2022 regular session and special session).
[ix] Adobe Whitewater Club of N.M., No. S-1-SC-38195, 2022 N.M. LEXIS 34 at *4.
[x] Adobe White Water, supra note vi.
[xi] Eliva Navarrete, Supreme Court rules on the public’s right to use privately owned waters and land in New Mexico, El Paso News (Sept. 1, 2022, 12:41 PM), https://www.ktsm.com/local/el-paso-news/supreme-court-rules-on-the-publics-right-to-use-privately-owned-waters-and-land-in-new-mexico [https://perma.cc/6JGA-BBA5].
[xii] Hannah Grover, NM Supreme Court rules non-navigable water rule is unconstitutional, NM Pol. Rep. (Mar. 1, 2022), https://nmpoliticalreport.com/2022/03/01/nm-supreme-court-rules-non-navigable-water-rule-is-unconstitutional/ [https://perma.cc/5AW5-N25Y].
[xiii] Id.
[xiv] Id.
[xv] Adobe Whitewater Club of N.M., No. S-1-SC-38195, 2022 N.M. LEXIS 34 (Sept. 1, 2022).
[xvi] Id.
[xvii] Id. at *3.
[xviii] Id. at *15.
[xix] Id.
[xx] Id. at *30.
[xxi] Adobe Whitewater Club of N.M., No. S-1-SC-38195, 2022 N.M. LEXIS 34, at *2.
[xxii] Oral Argument at 26:43, Adobe Whitewater Club of N.M. v. N.M. State Game Comm’n, No. S-1-SC-38195, https://supremecourt.nmcourts.gov/wp-content/uploads/sites/3/2022/03/No.S-1-SC-38195.mp3 [https://perma.cc/9XKD-U6L9].
[xxiii] Id.at 26:45.
[xxiv] Answer Brief for Intervenors-Respondents at 11, Adobe Whitewater Club of N.M. v. N.M. State Game Comm'n, No. S-1-SC-38195, 2022 N.M. LEXIS 34 (Sep. 1, 2022), https://static1.squarespace.com/static/5c5b8ca4b10f252423edffa4/t/61f85aa3c754440849e978ad/1643666083886/22.01.19+Intervenors%27+Answer+Brief.pdf [https://perma.cc/8PM4-9BVN].
[xxv] Id. at 9.
[xxvi] Adobe Whitewater Club of N.M., No. S-1-SC-38195, 2022 N.M. LEXIS 34, at *6.
[xxvii] Id. at *7.
[xxviii] Oral Arguments, supra note xxiv at 23:45.
[xxix] Id. at 24:08-24:25.
[xxx] Nauth, supra note i.