COURTS
US appeals court upholds public access to streams and rivers
Ruling rejects lawsuit brought by property owners on the Pecos River and Rio Tusas
Published
A federal appeals court in Denver on Tuesday rejected a lawsuit that sought to allow private landowners to use no-trespassing signs, fencing and other barriers to bar the public from the Pecos River and other streams in New Mexico.
A three-judge panel of the 10th Circuit Court of Appeals upheld a lower court's dismissal of a lawsuit filed by five property owners in San Miguel and Rio Arriba counties that include streambeds of the Pecos River and Rio Tusas.
The lawsuit alleged that the New Mexico Department of Justice and other agencies illegally took property belonging to the landowners without providing "just compensation" as required by federal law.
"The ruling supports New Mexico鈥檚 longstanding constitutional protection of public waters, and (the state Department of Justice) will continue to closely guard the public鈥檚 right of access to these cherished waterways," the agency said Tuesday in a statement.
"Today's ruling rejected that appeal and recognized that federal courts will not interfere with the state鈥檚 constitutional right," the statement said.
is the latest in a yearslong legal battle that began in 2022 when the New Mexico Supreme Court found that "the right to recreate and fish in public water also allows the public the right to touch the privately owned beds below those waters."
The ruling in Adobe Whitewater Club of New Mexico against the New Mexico State Game Commission found that the public had a right to access New Mexico streams and rivers.
Armed with the Adobe Whitewater ruling, New Mexico Attorney General Ra煤l Torrez clamped down on property owners who barred access to the state's streams and rivers.
Torrez asked a San Miguel County judge in 2023 to order 10 property owners to remove signs and physical barriers that denied public access to the Pecos River.
Torrez's lawsuit singled out property owner Erik Briones, who allegedly put of 6-foot fences topped with barbed and concertina wire to bar access to the Pecos River. Briones later entered a consent decree in which he agreed to remove barriers to the river.
Reached by phone Tuesday, Briones said he had not seen the ruling and declined to comment.
Briones and other land owners then filed a federal lawsuit in U.S. District Court in Albuquerque alleging that state officials violated longstanding state law recognizing their right to exclude the public. They argued that the government took their property without paying just compensation as required by the U.S. Constitution.
U.S. District Court Judge Kea Riggs dismissed the suit in January 2025 and property owners appealed to the 10th Circuit Court of Appeals.
"The law had been in the past that streambed owners could exclude the public from walking and wading on their streambeds," Christopher Kieser, an attorney for the property owners, said Tuesday in a phone interview.
New Mexico officials approved regulations certifying streambeds as private property and even issued Briones no-trespassing signs recognizing his right to exclude the public, said Kieser, a California attorney who specializes in property-rights cases.
For decades, "the entire government has been operating on the premise that the streambeds were private," Kieser said. "So we pleaded a straightforward takings claim."
Two of the appellate judges signed a majority opinion saying that property owners never had the right to bar the public from streams and rivers. A third judge said the case should be sent back to the New Mexico court for further consideration.
The majority opinion found that the landowners failed to show that they indeed had a legal right before 2022 to bar the public from their streambeds.
"The landowners bear the burden of demonstrating that their rights were sufficiently established before Adobe Whitewater such that this decision amounted to a judicial taking," the judges wrote.
The landowners鈥� suit "does not plausibly allege that Adobe Whitewater changed established law as opposed to clarifying of the scope of the public鈥檚 easement to use public water," it said.
The New Mexico Wildlife Federation cheered the court's action Tuesday.
鈥淭he AG鈥檚 work on stream access in New Mexico has required years of investment in both time and energy," said Jesse Deubel, executive director of the NMWF. "That investment is paying off for our residents today and will continue to provide opportunity for future generations of New Mexicans.鈥�
