Right about now, landowners in Colorado trying to keep anglers out of the rivers running through their properties are likely fuming mad.
That’s because the U.S. Supreme Court declined to overturn a New Mexico Supreme Court ruling that allows anglers to walk stream beds and banks within historic high-water marks. It’s a big deal for anglers and access advocates in New Mexico, and it will likely resonate with access groups in other states, like Colorado, where legal imbroglios over access to rivers and streams are ongoing. It could be precedent-setting.
“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 New Mexico Supreme Court stated in its ruling last fall. The ruling came after access advocates challenged a New Mexico Game and Fish Commission regulation that allowed landowners to close down access to rivers and streams across their property was put into effect in 2017.
This week, the U.S. Supreme Court, rather than take up the case, simply refused to hear arguments from landowners in New Mexico who challenged the September 2022 New Mexico Supreme Court ruling. Understandably, access advocates in New Mexico are very happy with the high court’s inaction.
“New Mexico is a dry state and there’s increasing demand for recreation on our rivers and streams,” said Jesse Duebel, executive director of the New Mexico Wildlife Federation. “The New Mexico Wildlife Federation and our allies won’t stand by and watch our public waters be fenced off to become private playgrounds exclusively for the wealthy.”
The lack of Supreme Court intervention isn’t deterring some landowners, however. “This isn’t going to end here, I can tell you that,” Dan Perry, owner of Chama Troutstalkers LLC, told the Albuquerque Journal. “There are many legal things I can do.”
According to the paper, Perry owns a ranch on the Chama River and is now concerned his property values have taken a hit thanks to public access that was granted by the state’s high-court ruling last fall.
“I believe now that, under the Fifth Amendment, that the state of New Mexico has taken my private property rights from me, so I probably have a cause of action to sue for the loss in value of my property,” he told the Journal. Perry also said he and other landowners might try and change the state’s constitution to restrict public access to waters crossing private lands.
That, however, would be a tough hill to climb. One of the pillars of a similar argument over stream access in Colorado is that rivers and streams are public resources all over the country, and that they were used for transportation, delivery of goods and for fishing well before state lines were drawn and the state was admitted to the union.
“Every New Mexican has a right to enjoy our public streams — it’s in our state constitution and it’s what I’ve spent years fighting for in our state courts,” said U.S. Sen. Martin Heinrich earlier this week in a prepared statement in response to the Supreme Court’s decision to abdicate on the case.
“Last year, the New Mexico Supreme Court reaffirmed this right,” Heinrich said. “Now the United States Supreme Court has effectively reaffirmed it, too, by ending the appeal brought by those who tried to privatize our waters for the benefit of wealthy landowners with out-of-state ties.”