Across the West there is a raging storm, that storm is privatization. State legislatures and courts are turning over centuries of law to hand our public lands, waters, and wildlife to powerful, monied interests. In the world of water, the issue is whether a landowner can block public access to a stream for recreational purposes, including fishing and boating.
This is not an issue of private property rights, but rather an issue of ill-defined rights both public and private. Landowners have argued that allowing the public access to the streambeds creates a disincentive for landowners to improve or even maintain river conditions. The consequences of public access, they argue, will be overuse, abuse, degradation, vandalism, and contamination. In short, the public cannot be trusted with such a precious resource.
However, the basis for the public right has been largely established by federal navigability law and the equal footing doctrine, both of which were later codified into federal statute. Additionally, state constitutions, including New Mexico’s support a management of water resources in favor of the public by the simple adoption of a prior appropriation system. The New Mexico Supreme Court has interpreted the constitution (Art. 16, Sec 2) as providing the public with the right right to float and wade into any stretch of stream that passes through private land, so long as the public has legal access to the stream.
In 2015, the state legislature superceded the Court’s ruling, closing previously open rivers and streams. This legislative decision overrides centuries of New Mexico traditions. The New Mexico Wildlife Federation hopes to reduce the potential for on-the-water conflicts between recreationists and private landowners while ensuring that the rights of New Mexicans aren’t stripped away bit by bit.