US Supreme Court Decision Upholds New Mexico Public Access Law

The court refused to hear arguments from landowners who challenge the public’s right to access waterways in the state.

WASHINGTON – Public land and water users won a major victory for public access today with the announcement by the US Supreme Court declining to consider arguments brought by New Mexico landowners who would have challenged access to water public in the Land of Enchantment.

The Supreme Court denied a petition by Chama Troutstalkers LLC and Z&T Cattle Company LLC seeking a review of a September decision by the New Mexico Supreme Court that upheld the public’s right to walk or ford stream beds that cross privately owned land. This ruling opinion followed a unanimous New Mexico court decision in March 2022 to strike down a regulation that allowed property owners to close off access to streams that flow through their properties.

The Supreme Court receives thousands of such requests, called “petitions for certiorari,” each year, but accepts only a small number. In their petition, the landowners file a lawsuit against the three groups that won the New Mexico case: the New Mexico chapter of Backcountry Hunters & Anglers, the Adobe Whitewater Club of New Mexico and the New Mexico Wildlife Federation, and They claim that tearing down the New Mexico current access regulation was a “take.”

Joel Gay, former president and policy coordinator for the New Mexico chapter of Backcountry Hunters & Anglers, praised the Supreme Court’s decision.

“The highest court in the land has ruled,” Gay said, “and, like the New Mexico Supreme Court before it, has summarily dismissed the baseless arguments of a handful of New Mexico private landowners who would prohibit fishermen, boaters and other waters that have been public since time immemorial.

“The judges have sent a simple message to these privileged landowners: that they have to share,” Gay continued. “The waters of New Mexico have always been and should always be open to all. It’s written in our state constitution as plain as day. With this most recent decision, we hope riparian landowners will accept the facts and remove haphazardly placed barriers to public access in public creeks throughout the state. And if they don’t, we hope our governor and the Department of Game and Fish have the backbone to force the issue.”

NM BHA and co-plaintiffs had filed a lawsuit in 2020 asking the court to strike down the anti-access regulation as unconstitutional. The state supreme court decision struck down the so-called Non-Navigability Rule and overturned previously adopted closures on several New Mexico streams.

“Today’s Supreme Court decision is a victory for New Mexico, a victory for arroyo access and a victory for public land users everywhere,” said Land Tawney, BHA President and CEO. “Make no mistake: the forces are constantly working to deny citizens our right to access the lands and waters that belong to all of us. Our work will never end to retain those opportunities, but today we celebrate it.”

Tawney further stated, “With the Supreme Court’s decision, BHA remains fully committed to working with all stakeholders in New Mexico to find solutions to access challenges that honor the resource, educate the public on wise use practices, and balance public and private property rights.

The New Mexico Constitution, which is based in part on Spanish and Mexican laws derived from the state’s colonial era and differs from other state constitutions, declares that all waters belong to the public. The state Supreme Court detailed that right of access more than 70 years ago.

Learn more about BHA’s actions in support of public water access in New Mexico.

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