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Date: 09-09-2022

Case Style:

Adobe Whitewater Club v. State Game Comm'n

Case Number: S-1-SC-38195

Judge: Vigil

Court: Supreme Court of New Mexico (Santa Fe County)

Plaintiff's Attorney: Jake Eugene Gallegos and Seth T. Cohen

Defendant's Attorney: Hector H. Balderas, Attorney General

Description: Santa Fe, New Mexico environmental law lawyers represent petitioners seek and writ of mandamus.

{1} This mandamus proceeding concerns the scope of the public’s right to use public water flowing over private property. Article XVI, Section 2 of the New Mexico Constitution provides that “[t]he unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public.” (Emphasis added.) In State ex rel. State Game Commission v. Red River Valley Co. (Red River), this Court held that Article XVI, Section 2 conveys to the public the right to recreate and fish in public water. 1945-NMSC-034, ¶ 59, 51 N.M. 207, 182 P.2d 421. The question here is whether the right to recreate and fish in public water also allows the public the right to touch the privately owned beds below those waters. We conclude that it does.

{2} The New Mexico State Game Commission (Commission) promulgated a series of regulations, 19.31.22 NMAC (1/22/2018) (Regulations), outlining the process for landowners to obtain a certificate allowing them to close public access to segments of public water flowing over private property. See NMAC (1/22/2018). In particular, access is closed to the “riverbed or streambed or lakebed” located on private property. Id. The reasoning is that because the landowner holds title to the bed below public water, the landowner may exclude the public from accessing the public water if it involves walking or wading on the privately owned bed. Petitioners, nonprofit organizations and corporations affected by the Regulations, sought a writ of prohibitory mandamus challenging the constitutionality of the Regulations.

{3} This Court assumed original jurisdiction over the petition under Article VI, Section 3 of the New Mexico Constitution. Concluding that the Regulations are an unconstitutional infringement on the public’s right to use public water and that the Commission lacked the legislative authority to promulgate the Regulations, we issued the writ of mandamus and an order on March 2, 2022, directing the Commission to withdraw the Regulations as void and unconstitutional. In this opinion, we explain the reasoning and rationale underlying our issuance of the writ of mandamus.

{4} In 2015, the Legislature amended NMSA 1978, Section 17-4-6 (2015), adding a one-sentence Subsection C:

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.

(Emphasis added.) Purportedly acting under the above-emphasized language of Section 17-4-6(C), the Commission promulgated the Regulations. See 19.31.22 NMAC (1/22/2018).

{5} The Regulations’ “Objective” is to implement

the process for a landowner to be issued a certificate and signage by the director and the commission that recognizes that within the landowner’s private property is a segment of a non-navigable public water, whose riverbed or streambed or lakebed is closed to access without written permission from the landowner. NMAC (1/22/2018). Once a landowner is issued a certificate, the landowner is then issued signs from the Commission which are “prima facie evidence that the property subject to the sign is private property, subject to the laws, rules, and regulations of trespass.” NMAC (1/22/2018). Members of the public may then be cited for criminal trespass if they touch the now-closed “riverbed or streambed or lakebed,” NMAC (1/22/2018), beneath the public water. NMAC (1/22/2018).

{6} To obtain the certificate and signage necessary to close access to segments of public water, landowners must fill out an application providing “substantial evidence which is probative of the waters, watercourse or [rivers] being non-navigable at the time of statehood, on a segment-by-segment basis.” NMAC (1/22/2018). The Regulations define “Non-navigable public water” as water that “was not used at the time of statehood, in its ordinary and natural condition, as a highway for commerce over which trade and travel was or may have been conducted in the customary modes of trade or travel on water.” NMAC (1/22/2018).

{7} Following the promulgation of the Regulations, Petitioners filed a verified petition for prohibitory mandamus in this Court to nullify any certificates issued under the Regulations and to enjoin the Commission from enforcing the Regulations. Petitioners argue the Regulations violate Article XVI, Section 2 by impermissibly interfering with the public’s constitutional right to use public water and that the Commission lacks the authority under Section 17-4-6(C) to promulgate the Regulations. In its answer brief, the Commission concedes the Regulations conflict with Article XVI, Section 2.

{8} This Court granted leave for Intervenor-Respondents (“Intervenors”), who are owners of private property over which nonnavigable waters flow, to intervene. Intervenors argue 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.

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Outcome: {42} We conclude that the Regulations are an unconstitutional infringement on the public’s right to use public water and that the Commission lacked the legislative authority to promulgate the Regulations. 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.

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