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The Importance of the Red River Case

Decided by the New Mexico Supreme Court in 1946, the case holds that public waters in the state by virtue of the state constitution are to forever remain open to the public.

Read the entire Red River Decision.


Attorney General Opinion on Stream Access

In 2014, Attorney General Gary King issued an opinion at the request of Representative Luciano Varela. The opinion states that private land-owners are not permitted to legally close off streams that are determined to be public waters. The opinion heavily cites the Red River case.

Read the AG Stream Access Opinion and learn more about this issue with the fact sheet.

Why Stream Access Matters

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In 2015, the state legislature superceded the Court’s ruling, closing previously open rivers and streams.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.

SB 226

SB226 gives landowners the right to close streams that can be accessed via public land when that stream crosses private land. NMWF believes that public water is just that, public.

Therefore, if a stream crosses private land, that landowner has no right to block passage via the stream bed. NMWF further believes that private landowners have every right in the world to protect the banks of the stream–which they own by deed. But their title stops at the high water mark – or the highest point a body of water can reach on the land. Landowners do not own the stream bed. Therefore, public water flowing in a streambed through private property should be open to all.

Read the whole legislation to learn more about Stream Access.