There’s an interesting case potentially up for review by SCOTUS: Chama Troutstalkers, LLC, et. al.*** v. Adobe Whitewater Club of New Mexico, et. al. Basically, the New Mexico Constitution says that all surface water in the state is publicly owned, and the question is whether the private property owner who owns the land *under* the surface water has the right to keep the public from wading in the public water. The question sounds kind of cerebral, but it apparently implicates quite a lot of area (Chama Troutstalkers say there are 236,799 miles of “smaller, non-navigable streams in New Mexico,” which… color me shocked that that number is that high). It also presents an interesting (to me) conflict between the English common law that SCOTUS typically looks at versus the Spanish common law that New Mexico property rights are based in, and it potentially turns on how we interpret/enforce the 1848 Treaty of Guadalupe Hidalgo.

A couple disclaimers: I know criminal law and personal injury law. I am not an expert in either water law or property law. Nor am I an expert in SCOTUS. I just find this case interesting, and thought others might too.

There are three documents worth reading here. The first is the New Mexico Supreme Court opinion, which was issued last year: https://nmonesource.com/nmos/nmsc/en/item/521421/index.do . The NM Supreme Court starts off by explaining that under Article XVI, Section 2 of the NM Constitution “the unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public.”

The words the court focuses on here are “belong to the public,” which, duh, that’s the whole debate. In their petition for cert (which we’ll get to), Chama Troutstalkers points out that the word “torrential” also needs some attention. If we’re including waterways that only carry water after “torrential” downpours, there are *a lot* of arroyos in NM that could potentially be included here.

Back in the 1940s, a landowner who owned both shores of a lake declared that it could prohibit the public from fishing on the lake. One would think there would have been more important things going on in the world in the early 1940s, but this landowner ended up in front of the NM Supreme Court, and in 1945 the Court declared that Article XVI, Section 2 meant that the public had a right to use the public waters, including floating on top of the water to fish.

Fast forward to 2018, and the New Mexico State Game Commission issued a new regulation allowing landowners who owned the streambed/lake bed under the water to put up signs prohibiting anyone from wading in the water. According to the State Game Commission, unlike floating on top of the publicly owned water, which is not trespassing, wading means walking on and therefore trespassing on the privately owned land under the water. Adobe Whitewater Club and others sued to have the Court declare the regulation unconstitutional under Article XVI, Section 2.

The NM Supreme Court opinion includes a long discussion on who owns the land under navigable versus non-navigable rivers in the US. If you skip to about half way through the opinion, you’ll see that the conclusion is we don’t care about any of that because it isn’t in dispute that these property owners own the streambed. What the NM Supreme Court decided is that the public has an easement (right to access) across the streambed for reasonable use of the publicly owned water. You aren’t allowed to cross private property to get to the water, but you are allowed to wade up the publicly owned water, even if the water crosses onto private property.

Here’s the key: the NM Supreme Court decideed that this public easement for use of the water is based on “practice under Spanish and Mexican dominion.”

Chama Troutstalkers filed a petition for cert with SCOTUS, which you can read here: https://www.supremecourt.gov/…/20221028145646451_22… . And the brief in opposition filed just this week can be found here https://www.supremecourt.gov/…/20230124110957148_Adobe… .

Without getting too deep into the weeds on federal property and states rights doctrines that are not my area, Chama Troutstalkers is essentially arguing that their title to their land originates with the US Government, and the US government has never explicitly recognized an easement across its land for public access to water. Apparently, under English common law, property owners have a right to prohibit public access to water that flows across their land, and there are several states (not in the Southwest US) that hold this view. According to Chama Troutstalkers, this failure to ever previously recognize a public use easement means that it doesn’t exist. They argue that if SCOTUS allows the NM Supreme Court to allow the public access to wade in water that runs across private land, that same logic will necessarily extend to water that flows through federal land (including military bases) and across reservations.

Adobe Whitewater Club gets real originalist, and argues that under Spanish law dating back to the 1300s in Spain and the 1530s in the Spanish colonies, the public owns surface water, including the right to access that water. According to Adobe Whitewater Club, English common law is irrelevant because under the Treaty of Guadalupe Hidalgo (which transferred control of most of what is now New Mexico from Mexico to the US), the US agreed to take the land “under the laws, usages, and customs of the country before its cession into the United States.” Adobe Whitewater Club cites to an 1876 decision from SCOTUS holding that property rights in New Mexico “were not affected by the change of sovereignty and jurisdiction.”

Anyway, you should read the petition for cert and response. They’re interesting, and they cover a lot more than what I talked about here. SCOTUS only takes up a handful of cases a year, so who knows if they will decide to take this case and eventually decide the issue. If SCOTUS does not take the case, the NM Supreme Court decision will stand, and under the NM Constitution, the rule will be that the public has the right to walk on privately owned streambeds and lake beds for “reasonable” enjoyment of the water.

*** Yes, the petitioner is actually named troutstalker. If anyone knows why they named their company after stalking a fish, please let me know. There has to be an interesting story there.