The New Mexico Supreme Court has ruled the public is allowed to wade through public water even if the water flows through 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 a unanimous opinion written by Justice Michael 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.”
The court said trespassing on someone’s land to access public waters is not allowed. But wading through water, even if that water flows over private property, is permissible to gain access to a public fishing area. It is also permissible to wade in and fish in public water flowing on private land.
The case resulted from a debate caused when private landowners restricted access to public streams. A group of anglers, rafters, and conservationists contended the public has the right to fish, boat or use any stream for recreation provided they do not trespass across private land to get there, according to a report in March by KRQE News 13.
Advocates of private property rights warned that if waterways are opened, property values will decline and there will be less interest by owners to invest in conserving land along streams, according to KRQE News. Some fishing outfitters and guides said their businesses would be adversely affected.
Ultimately, the court agreed with the public.
“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 wrote in its decision.
Ben Neary, conservation director for the New Mexico Wildlife Federation, calls the decision “critically important.”
“We’re a very dry state, and we’ve got a lot of increasing public interest in accessing waters for fishing,” Neary said in a KRQE News report Thursday. “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.”
The court decided landowners who owned land around a lake cannot prohibit the public from boating in the lake in 1945, Neary said.
“The Supreme Court spoke to this in 1945, in a decision where they specified that people have the right to go along rivers and streams in New Mexico,” Neary said. “It’s a right that dates back before statehood and it was codified in our state constitution.”
