New Mexico Stream Access Win

[Oak]

The NM Supreme Court issued their written decision today.

We conclude under Article XVI, Section 2 and our holding in Red River 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. See Hartman v. Tresise, 84 P. 685, 692 (Colo. 1905) (Bailey, J., dissenting) (“[T]he people have the right of way in the bed of the stream for all purposes not inconsistent with the constitutional grant.”); see also Galt v. State, 731 P.2d 912, 915 (Mont. 1987) (“The public has a right of use up to the high water mark, but only such use as is [reasonably] necessary to utilization of the water itself.”); Conatser v. Johnson, 2008 UT 48, ¶ 26, 194 P.3d 897 (holding that the public’s easement includes touching riverbeds because “touching the water’s bed is reasonably necessary for the effective enjoyment of” the easement). Walking and wading on the privately owned beds beneath public water is reasonably necessary for the enjoyment of many forms of fishing and recreation. 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. See Red River, 1945-NMSC-034, ¶ 32 (“Access to this public water can be, and must be, reached without such trespass.”).

 

[abqbw]

The NM Supreme Court issued their written decision today.

We conclude under Article XVI, Section 2 and our holding in Red River 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. See Hartman v. Tresise, 84 P. 685, 692 (Colo. 1905) (Bailey, J., dissenting) (“[T]he people have the right of way in the bed of the stream for all purposes not inconsistent with the constitutional grant.”); see also Galt v. State, 731 P.2d 912, 915 (Mont. 1987) (“The public has a right of use up to the high water mark, but only such use as is [reasonably] necessary to utilization of the water itself.”); Conatser v. Johnson, 2008 UT 48, ¶ 26, 194 P.3d 897 (holding that the public’s easement includes touching riverbeds because “touching the water’s bed is reasonably necessary for the effective enjoyment of” the easement). Walking and wading on the privately owned beds beneath public water is reasonably necessary for the enjoyment of many forms of fishing and recreation. 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. See Red River, 1945-NMSC-034, ¶ 32 (“Access to this public water can be, and must be, reached without such trespass.”).

It is interesting that the ruling specifically mentions walking on the bed of the river and the banks. But it does not say anything about how much “bank”. High water mark? The court seems to have taken an expansive view of the physical nature of constitutional access to the stream, “reasonably necessary”. I read that to mean if I need to walk beyond the high water mark to get past boulders or a cliff it would be legal because it would be “reasonably necessary”. But remember, it took 3 broke ass non-profits against the entire state of New Mexico legislature, multiple game commissions and governors to restore stream access that those bastards did anything and everything the could, include violate the constitution, to block public stream access. I’m sure those same NM elected and appointed bastards will write laws and rules post-haste to try to limit access as much as they possibly can under the latest NM Supreme Court ruling. How many more times will the NM Supreme Court have to tell NM officials to back the F up with the stealing of public steam access?

 

[David658]

I could easily be too old to take advantage of this ruling, or in the ground, before it is clear. Landowners who a) make money off of the restricted fishing stretches, or b) simply don't want you there will fight this and fight this and fight this.

I can see the landowner point of view. Those lodges on the Chama are NOT going to be happy to see non-paying-customers wading through "their" river. However, I plan to give it a try....I wonder how many years before the fences and wires and signs come down. For it is NM, remote, rural, and still part of the wild west.

 

[BrianFromTheWest]

Just saw this - never fished in New Mexico, but this seems like a win for the good guys.

New Mexico Supreme Court finds stream rule unconstitutional

ALBUQUERQUE, N.M. (AP) — The New Mexico Supreme Court determined Tuesday that a rule allowing private landowners to limit public access to streams and rivers is unconstitutional and contrary to

ravallirepublic.com

This is awesome!

 

[hank4elk]

I will still not be fishing streams and rivers in NM. Not why I moved here, the fishing.