DENVER (CN) — New Mexico landowners with non-navigable waters running thru their property asked the 10th Circuit on Friday to revive their lawsuit challenging the state’s assertion of public access rights to those waterways.
The landowners, represented by the Pacific Legal Foundation, argue that New Mexico’s attempt to claim a public easement across private land based solely on the presence of intermittent streams violates their constitutional rights. They contend the state is relying on a flawed interpretation of ancient water law and the public trust doctrine.
At the heart of the dispute is the question of whether the public has a right to access and recreate in streams that flow only during and after rainfall or snowmelt – streams deemed “non-navigable.” New Mexico argues that these waters are subject to the public trust doctrine, which traditionally applies to navigable waters like rivers and lakes.
The landowners initially sued New mexico’s State Land Office and the New Mexico Attorney General in 2023,seeking a declaration that the state lacks the authority to assert public access rights over their private property. A federal judge dismissed the case, finding the landowners hadn’t demonstrated a concrete injury.
The Pacific Legal Foundation appealed, arguing the landowners do face a credible threat of enforcement.They point to the state’s increasing efforts to identify and map public access points along non-navigable streams, and statements from state officials indicating an intent to enforce public access rights.
“New Mexico is attempting an end-run around the Fifth and Fourteenth Amendments by claiming a public right to cross private property simply because water occasionally flows across it,” said Jonathan Wood, an attorney with the Pacific Legal Foundation. “This case is about protecting private property rights and ensuring landowners aren’t forced to open their land to the public without just compensation.”
The 10th Circuit will consider whether the landowners have standing to bring the lawsuit and, if so, whether the state’s claim of a public easement is legally valid. the outcome of the case could have important implications for property owners throughout New Mexico and perhaps other states grappling with similar issues of public access to water resources. Courthouse News Service
