Constitutional Public Waters in New Mexico

Anthony Sanders · September 9, 2022

Most property rights cases concern the government infringing on a private person’s use of their property. Either the government wants to take away someone’s property (such as with eminent domain) or wants to leave it in private hands but regulate it in some way. In response the private owner invokes a constitutional limit on the government’s power, such as a takings clause, due process clause, etc. But in New Mexico recently—in Adobe Whitewater Club v. State Game Commission—there was the rare case of a constitutional protection of the public owning something. In this case, water.

New Mexico, along with several other southwestern states, was formerly part of Mexico and before that under Spanish sovereignty. Therefore, its legal system has many elements of Spanish law in its background, in addition to the English common law that the United States later brought. Most of the time where this is relevant is in the private law context, concerning relations between private parties. But it comes up in the constitutional arena too.

In Article XVI, Section 2 of New Mexico’s constitution, which came into force with statehood in 1912, it says this about mankind’s most important liquid:

The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state. Priority of appropriation shall give the better right.

What does this mean? One reading could simply be that the government (as a stand-in for “the public”) can take water from any stream for public use, such as for a municipal water system. But the New Mexico Supreme Court has interpreted it much more broadly than that, both for what “beneficial use” means and for who “the public” is. In the 1945 case State Game Commission v. Red River Valley Co. the court concluded that “appropriation for beneficial use” includes navigation, fishing, and other recreation. Further, “the public” means all the members of the public. The case concerned accessing a lake created by a dam on a river. The court ruled that members of the public had the right to navigate their boats into the disputed part of the lake and to engage in recreation on the lake. The court pointed out that there was no right to cross someone else’s property in order to reach the lake, but that once a member of the public was in the waters they were reserved to them to use.

The Red River court based its decision largely on Article XVI, Section 2. And in doing so it also stated that that provision simply reaffirmed the law as it had been before the United States acquired New Mexico from Mexico. In other words, since “the public” had always owned “the unappropriated water of every natural stream” (or at least since the Spanish conquered the area), the adoption of Article XVI, Section 2 in 1912 did not take away anyone’s property rights, whether private or governmental.

Fast forward to today and an additional wrinkle, unanswered in 1945, arose: What happens when the rights of the public to access nonnavigable streams collide with the rights of landowners to streambeds. Even though the waters are owned by the public, for nonnavigable waters the banks of streams and even their underlying beds are generally privately owned. The question came up because the state game commission had adopted a regulation allowing landowners to obtain permission to close sections of nonnavigable streams to the public when they own the bank on either side and the streambed. The rule was challenged, and a group of affected landowners intervened to defend it.

Although the court did not go into many facts underlying the controversy, it seems to mostly be of concern where members of the public access a stream other than through floatation, such as by simply walking in shallow waters. Landowners apparently objected to individuals, such as fly fishermen or hikers, who do not trespass across their dry land but access streams elsewhere and then move down or up the landowner’s portion of the stream. In doing so, of course, the fisherman or hiker needs to step on the privately owned streambed. Thus, the question was does Article XVI, Section 2 protect this, essentially giving an easement to the member of the public to walk on the streambed, or is this a trespass that goes beyond the provision’s protection?

The New Mexico Supreme Court answered it was the former. Surveying other southwestern states who have inherited Spanish riparian law, and discerning the implications of the Red River case, the court concluded that there is an easement to walk upon steambeds to the extent it is “reasonably necessary for the enjoyment of fishing and recreation.” The court reiterated this does not give a member of the public the right to traverse dry land to access a stream, but it does mean they can trod on the bed under the stream to the extend it is “reasonably necessary” to exercise their Article XVI, Section 2 rights.

Some readers, especially libertarians, might object to this and argue it would be a much better system if streams, especially nonnavigable streams, were privatized, and that the English common law rule—where owning the banks and streambed allows a landowner to exclude others—would be a better and more workable system. Well, they might be right! But that’s not what the New Mexico Constitution says and would require a constitutional amendment.

And that’s also why one last part of the intervenor-landowners’ claims were rejected. They argued that if the court ruled in the way it did that would constitute a judicial taking, a situation where a court changes property ownership through a ruling in such a way that it takes property akin to the use of eminent domain. The court rejected that claim pretty quickly because it said no property rights were changed with the opinion. The court was simply enforcing the rules of property ownership as they’ve been since the days of the Spanish.

The case also has some interesting history on water rights, as does the Red River case (both its majority and dissent) which I also recommend reading.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.