*Editor’s note: Updated with quotes from Ben Neary
SANTA FE, N.M. (KRQE) – The New Mexico Supreme Court has released its opinion on why New Mexicans aren’t allowed to restrict access to some of their private property. Thursday they explained that the public is allowed to wade through public water, even if the water flows over private property.
“Walking and wading on the privately owned beds beneath public water is reasonably necessary for the enjoyment of many forms of fishing and recreation,” the Court wrote in their unanimous opinion penned by Justice Michael E. Vigil. “Having said that, we stress that the public may neither trespass on privately owned land to access public water, nor trespass on privately owned land from public water.”
So, you’re not allowed to trespass on someone’s land in order to access public waters. But if the water flows over private property, and you need to wade through that water to access public fishing areas, you can. And you can also wade in — and fish in — public water flowing atop private land.
Ben Neary, the conservation director for the New Mexico Wildlife Federation, calls the decision “critically important.” The Wildlife Federation was one of the parties involved in the original lawsuit behind this Supreme Court opinion. And Neary says the Federation is pleased with the decision.
“We’re a very dry state, and we’ve got a lot of increasing public interest in accessing waters for fishing,” he told KRQE News 13. “The court recognized a long-standing right of New Mexico citizens to access the public waters of the state. The importance of the ruling is that it specifies that land ownership does not mean that landowners can exclude the public.”
Under New Mexico’s Constitution, New Mexico’s surface water belongs to the public. But, the streambeds beneath that water can be privately owned.
In 2018, the state Game Commission effected regulations that allowed private property owners to fence-off access to public water on private land. But in March of this year, the New Mexico Supreme Court ruled that closing off access to public water went against New Mexican’s rights.
“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,” the Court concluded.
This isn’t the first time the state’s highest court wrestled with the issue of public access to water. In 1945, the Court decided that landowners who owned land around a lake are not allowed to prohibit the public from boating in the lake, according to a press release from the New Mexico Courts.
“The Supreme Court spoke to this in 1945, in a decision where they they specified that people have the right to go along rivers and streams in New Mexico,” Neary says. “It’s a right that dates back before statehood and it was codified in our state constitution.”