If you want to boat or fish on a stream in New Mexico, do you have a right to float or wade that stream even if it flows through private lands? The New Mexico Attorney General says you do. In an opinion issued last month, the AG concluded, “A private landowner cannot prevent persons from fishing in a public stream that flows through the landowner’s property, provided the public stream is accessible without trespass across privately owned adjacent lands.” In other words, if you can get to the stream without trespassing, a private landowner on that stream has no right to stop you from floating down (or wading up, if you’re into that sort of thing).
In finding a right to float, the AG’s opinion is pretty firmly anchored, so to speak, in New Mexico law. New Mexico’s 1907 water code declared that “all natural waters flowing in streams” within the state belong to the public, and the New Mexico Supreme Court had relied on that law in a 1945 decision finding a right to float on a lake, even though the bed of that lake was private property. But New Mexico law had little to say on whether a recreational user has the right to touch a privately owned streambed in the course of boating or fishing. That “right to touch” is crucial for those who want to wade a stream, drag a canoe off a submerged bar to deeper water, or even bounce off the occasional rock in a raft or kayak. In short, a right to float without a right to touch is pretty unsatisfactory–but so it is in my former state of Wyoming, since a state supreme court case 50+ years ago.
Supreme courts have seen this issue differently in different states. In Colorado, the court rejected the right to float in a 1979 case called Emmert. But five years later, the Montana Supreme Court found that a right to float did exist in that state. More recently, in its 2008 Conatser decision, the Utah Supreme Court upheld the right to float and the right to touch (although the Utah Legislature partly undid that decision a few years later). In predicting what New Mexico courts might do on this unsettled issue, the AG’s opinion emphasized Conatser without mentioning Emmert. As for that Colorado rule, it is somewhat bizarre that a state with such a strong recreation-based economy and economically significant whitewater industry has taken such a restrictive view of stream access rights.
What makes this issue controversial? It comes down to the collision between the “right” of the public to use rivers for recreation, and the “right” of private landowners to exclude people from their property. Where land and water meet, the law can get pretty weird, and the clashes can get pretty bitter. River users like anglers and paddlers (which I happily am) often have stories about ill-tempered, belligerent landowners. Meanwhile, riverfront landowners (which I unfortunately am not) have their own stories about ill-behaved, boorish recreationists. A little mutual respect would go a long way, but when everyone starts asserting what they’re sure their rights are, it can get hard to find any common ground.
I think the New Mexico AG came to the right conclusion on stream access. The opinion correctly found that the right to float had been recognized in New Mexico since 1945; on the right to touch, the opinion takes a reasonable and modern view of the law, and I think it’s right on the policy. But the opinion is not actually law, just an official legal opinion by the state’s top legal officer. It would not be surprising if some landowners, and some county sheriffs, should decide that they will defend private property, come hell or high water … or in this case, low water. If that happens, some angler or boater may get charged with trespass, and then we will see if New Mexico law really does recognize a right to float and a right to touch. For now, the AG is saying it does.