U.S. Supreme Court sides with New Mexico anglers over access

The high court's refusal to hear challenging arguments blocks attempts by landowners to limit access by aglers and other recreational users
Sunset over the Chama River in New Mexico
Sunset over the Chama River in New Mexico (photo: John Buie / cc2.0).

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.”


Haa that perry rich guy w a ranch is the kinda ch odes this article is talking bout. Plus you dont even technically own your own land in the usa so su ck on that.

This an interesting dilema. As a fisherman we all would like more water to fish. As a landowner there is tremendous liability in allowing others to access your land. There are a multitude of issues like trash that will show up, the number of people that could be on your property, noise, erosion caused by foot traffic, and other damage, not to mention loss of property value and private property rights.
As the fisherman looking for access, I would say gee, I wont harm your property. The state stocks fish in the river, so I should be able to fish it. People can float through, why cant I wade through.
I have always respected Private property and at a very young age was taught to ask permission and respect the landowners right to say yes or no, or even charge a fee.
I am inclined to say the. New Mexico SC is wrong in denyining property owners their right to control access to or through their property. What is wrong with asking permission and even signing a liability waiver and respectin the landowners right?

I no longer but in the past have owned property that had rivers and or creeks running through them. As you would expect I didn’t want that to change. Things change and I no longer have that “luxury”. While I don’t disagree with the Supreme Court allowing access I do think of all the additional miles of streams and creeks that have been maintained and carefully cared for that are about to become trampled and pounded by those people that manage to get in there first and fish the hell out of it. People who have no skin in the game fishing in water that has never received a dime of support from anywhere getting what I consider a free ride, at least for the first season or two when that choice stretch of water is hammered down to the average section of public water. There goes years if not decades of TLC that had a positive effect down stream. Hopefully some folks might pick up the worm contains, power bait jars, trash and beer cans.

This is fantastic news for fisherman. Now be prepared to deal with the private landowners' backlash. Pack your courage on the stream. When the thugs come rolling in, roll back.

I wonder how you would feel if you purchased the property and paid the taxes on it Jeff? Also how would you feel when a guy like slips and breaks a leg and sues you?
As I wrote previously the courts decision while as fishermen we like, creates a dilemma for landowners that you refer to as "thugs".


The SC decision gives anglers and others recreating on waterways permission to walk the streambed and the banks up to the historic high water mark. It does not allow any other access to the lands of property owners, nor does it allow recreational users to access waterways by trespassing on private land—it explicitly forbids it.

The portions of private land the public is entitled to access (the streambed and banks up to the high water mark) is considered a public easement, and in almost all states where these rights exist, the landowner is protected from liability by some form of recreational use statute.

In other words, if you slip and break your leg when wading a publicly accessible stream that flows through private property, you can't sue the landowner.

Thanks for that explanation Chad. We have a similar case currently hete in Colorado. As a fisherman, I would welcome the opportunity to fish through as rafts currently are able to do and sincerely hope that ALL fisherman respect the land owners.
I still question how the state now can declare a "public easement" through a private citizens land with no form of compensation or deed documentation short of some sort of emminent domain declaration. Does the landowner receive any tax benefit? In other words, the state says you the landowner own your land but up to the high water mark, we are taking it for public use.

I suspect there will be lawsuits claiming that this amounts to a taking without compensation and that there will be a loss of property value. Imagine paying $4+ million for private property that has now become much less private. I used to belong to a club on the Bighorn river. People would come up to the door of an 5000 square foot log lodge and ask to use the bathroom. When refused they would go in the woods behind a bunch and take a dump. Never underestimate the stupidity of the common man.

If someone came to your door asking if they could use the bathroom and you refused, what did you expect them to do? Crap in their pants? When you gotta go you gotta go! They could have simply dumped in the woods first without asking! Obviously they would have preferred not to dump in the woods but you chose not to let them use your facilities like a good neighbor would! You caused your own problem then complained about it!!

First of all this was not a
“neighbor” it was some random guy in one of the literally hundreds of boats a day that pass by. It’s so easy for you to suggest that I’m the bad guy when someone out of no where trespasses on private property to use the bathroom of one of the few houses on the river when there’s miles of river bank to chose from. How that hell am I supposed to know who this
person is or what his actual intentions might be. When I float a river I have with me what ever I might need should nature call. I would not in a thousand years knock off the door of a stranger and ask to use their bathroom. Had he been in need of help in a bad situation I would have of course rendered aid just as I have done on the river the road or where aid is needed.

Glen, your comments imply that this was some sort of new ruling. The State of New Mexico didn't just suddenly "declare a public easement." New Mexico made its rivers public in the State Constitution. And the state's Supreme Court first set precedent on the matter in the 1945 Red River case. There's a reason the New Mexico Supreme Court ruled unanimously. People like Dan Perry love to make it sound as if that land beneath the river has been taken from them. But he's fighting to get back something that was never his to begin with.

Very interesting. We have a case here in Colorado to allow passage similar but here land owners own the land under the water.

Can you cross private property to access the river?

No, it's explicitly forbidden. You can only access the river through upstream or downstream public access, and then by wading (or walking the bank below the historic high water mark) or floating the river.