Adobe Whitewater Club v. State Game Comm’n

Office of the
Director New Mexico
Compilation
07:44:13 2022.11.01 Commission
'00'06-
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2022-NMSC-020

Filing Date: September 1, 2022

No. S-1-SC-38195

ADOBE WHITEWATER CLUB
OF NEW MEXICO, a non-profit
corporation, NEW MEXICO WILDLIFE
FEDERATION, a non-profit corporation,
and NEW MEXICO CHAPTER OF
BACKCOUNTRY HUNTERS & ANGLERS,
a non-profit organization,

Petitioners,

v.

NEW MEXICO STATE GAME COMMISSION,

Respondent,

and

CHAMA TROUTSTALKERS, LLC,
RIO DULCE RANCH, Z&T CATTLE COMPANY, LLC,
RANCHO DEL OSO PARDO, INC., RIVER BEND RANCH,
CHAMA III, LLC, FENN FARM, THREE RIVERS CATTLE LTD.,
CO., FLYING H. RANCH INC., SPUR LAKE CATTLE CO.,
BALLARD RANCH, DWAYNE AND CRESSIE BROWN,
COTHAM RANCH, WAPITI RIVER RANCH,
MULCOCK RANCH, WILBANKS CATTLE CO.,
130 RANCH, WCT RANCH, THE NEW MEXICO
FARM AND LIVESTOCK BUREAU, CHAMA PEAK LAND
ALLIANCE, NEW MEXICO CATTLE GROWERS’
ASSOCIATION, NEW MEXICO COUNCIL OF
OUTFITTERS AND GUIDES, AND UPPER PECOS
WATERSHED ASSOCIATION,

Intervenors-Respondents.

ORIGINAL PROCEEDING

Gallegos Law Firm, P.C.
Jake Eugene Gallegos
Santa Fe, NM

Cohen Law Firm, LLC
Seth T. Cohen
Santa Fe, NM

for Petitioners

Hector H. Balderas, Attorney General
Tania Maestas, Chief Deputy Attorney General
Santa Fe, NM

Cuddy & McCarthy, LLP
Aaron J. Wolf
Santa Fe, NM

for Respondent

Modrall, Sperling, Roehl, Harris & Sisk, P.A.
Marco Estevan Gonzales
Jeremy K. Harrison
Albuquerque, NM

for Intervenors-Respondents

Peifer, Hanson, Mullins & Baker, P.A.
Mark Travis Baker
Matthew Eric Jackson
Rebekah Anne Gallegos
Albuquerque, NM

for Amici Curiae – Senator Tom Udall and Senator Martin Heinrich

Logan M. Glasenapp
Albuquerque, NM

for Amici Curiae – New Mexico Wilderness Alliance, League of United Latin American
Citizens, The Hispano Roundtable of New Mexico, Hispanics Enjoying Camping,
Hunting, and the Outdoors, The Nuestra Tierra Conservation Project

Freedman, Boyd, Hollander, Goldberg, Urias, & Ward P.A.
Joseph Goldberg
Vincent J. Ward
Michael Lee Goldberg
Christopher Allen Dodd
Albuquerque, NM

Matthew L. Garcia, Chief General Counsel
Jonathan Jacob Guss, Associate General Counsel
Santa Fe, NM

for Interested Party – Governor Michelle Lujan Grisham

OPINION

VIGIL, Justice.

{1} This mandamus proceeding concerns the scope of the public’s right to use public
water flowing over private property. Article XVI, Section 2 of the New Mexico
Constitution provides that “[t]he unappropriated water of every natural stream, perennial
or torrential, within the state of New Mexico, is hereby declared to belong to the public.”
(Emphasis added.) In State ex rel. State Game Commission v. Red River Valley Co.
(Red River), this Court held that Article XVI, Section 2 conveys to the public the right to
recreate and fish in public water. 1945-NMSC-034, ¶ 59, 51 N.M. 207, 182 P.2d 421.
The question here is whether the right to recreate and fish in public water also allows
the public the right to touch the privately owned beds below those waters. We conclude
that it does.

{2} The New Mexico State Game Commission (Commission) promulgated a series
of regulations, 19.31.22 NMAC (1/22/2018) (Regulations), outlining the process for
landowners to obtain a certificate allowing them to close public access to segments of
public water flowing over private property. See 19.31.22.6 NMAC (1/22/2018). In
particular, access is closed to the “riverbed or streambed or lakebed” located on private
property. Id. The reasoning is that because the landowner holds title to the bed below
public water, the landowner may exclude the public from accessing the public water if it
involves walking or wading on the privately owned bed. Petitioners, nonprofit
organizations and corporations affected by the Regulations, sought a writ of prohibitory
mandamus challenging the constitutionality of the Regulations.

{3} This Court assumed original jurisdiction over the petition under Article VI, Section
3 of the New Mexico Constitution. Concluding that the Regulations are an
unconstitutional infringement on the public’s right to use public water and that the
Commission lacked the legislative authority to promulgate the Regulations, we issued
the writ of mandamus and an order on March 2, 2022, directing the Commission to
withdraw the Regulations as void and unconstitutional. In this opinion, we explain the
reasoning and rationale underlying our issuance of the writ of mandamus.

I. BACKGROUND

{4} In 2015, the Legislature amended NMSA 1978, Section 17-4-6 (2015), adding a
one-sentence Subsection C:

No person engaged in hunting, fishing, trapping, camping, hiking,
sightseeing, the operation of watercraft or any other recreational use shall
walk or wade onto private property through non-navigable public water or
access public water via private property unless the private property owner
or lessee or person in control of private lands has expressly consented in
writing.

(Emphasis added.) Purportedly acting under the above-emphasized language of
Section 17-4-6(C), the Commission promulgated the Regulations. See 19.31.22 NMAC
(1/22/2018).

{5} The Regulations’ “Objective” is to implement

the process for a landowner to be issued a certificate and signage by the
director and the commission that recognizes that within the landowner’s
private property is a segment of a non-navigable public water, whose
riverbed or streambed or lakebed is closed to access without written
permission from the landowner.

19.31.22.6 NMAC (1/22/2018). Once a landowner is issued a certificate, the landowner
is then issued signs from the Commission which are “prima facie evidence that the
property subject to the sign is private property, subject to the laws, rules, and
regulations of trespass.” 19.31.22.13(F) NMAC (1/22/2018). Members of the public may
then be cited for criminal trespass if they touch the now-closed “riverbed or streambed
or lakebed,” 19.31.22.6 NMAC (1/22/2018), beneath the public water. 19.31.22.13(F)
NMAC (1/22/2018).

{6} To obtain the certificate and signage necessary to close access to segments of
public water, landowners must fill out an application providing “substantial evidence
which is probative of the waters, watercourse or [rivers] being non-navigable at the time
of statehood, on a segment-by-segment basis.” 19.31.22.8(B)(4) NMAC (1/22/2018).
The Regulations define “Non-navigable public water” as water that “was not used at the
time of statehood, in its ordinary and natural condition, as a highway for commerce over
which trade and travel was or may have been conducted in the customary modes of
trade or travel on water.” 19.31.22.7(G) NMAC (1/22/2018).

{7} Following the promulgation of the Regulations, Petitioners filed a verified petition
for prohibitory mandamus in this Court to nullify any certificates issued under the
Regulations and to enjoin the Commission from enforcing the Regulations. Petitioners
argue the Regulations violate Article XVI, Section 2 by impermissibly interfering with the
public’s constitutional right to use public water and that the Commission lacks the
authority under Section 17-4-6(C) to promulgate the Regulations. In its answer brief, the
Commission concedes the Regulations conflict with Article XVI, Section 2.

{8} This Court granted leave for Intervenor-Respondents (“Intervenors”), who are
owners of private property over which nonnavigable waters flow, to intervene.
Intervenors argue mandamus should be denied because the Regulations do not
privatize or close public waters, but instead express the existing right to exclude
trespassers on privately owned riverbeds.
II. DISCUSSION

A. Mandamus Is Appropriate

{9} Before addressing Petitioners’ constitutional challenges to the Regulations, we
explain the basis for our exercise of original mandamus jurisdiction. Article VI, Section 3
of the New Mexico Constitution gives this Court “original jurisdiction in . . . mandamus
against all state officers, boards and commissions” and the “power to issue writs of
mandamus . . . and all other writs necessary or proper for the complete exercise of its
jurisdiction.” “Although relief by mandamus is most often applied to compel the
performance of an affirmative act by another where the duty to perform the act is clearly
enjoined by law, the writ may also be used in appropriate circumstances in a prohibitory
manner to prohibit unconstitutional official action.” State ex rel. Sugg v. Oliver, 2020-
NMSC-002, ¶ 7, 456 P.3d 1065 (internal quotation marks and citation omitted). “In
considering whether to issue a prohibitory mandamus, we do not assess the wisdom of
the public official’s act; we determine whether that act goes beyond the bounds
established by the New Mexico Constitution.” Am. Fed’n of State, Cnty. & Mun. Emps.
v. Martinez, 2011-NMSC-018, ¶ 4, 150 N.M. 132, 257 P.3d 952.

{10} Petitioners and Intervenors disagree about whether mandamus is the proper
vehicle to address the fate of the Regulations. To resolve such disagreements, this
Court applies a multifactor test to evaluate whether mandamus is appropriate.
Mandamus is a discretionary writ that will lie when there is a purely legal issue “that (1)
implicates fundamental constitutional questions of great public importance, (2) can be
answered on the basis of virtually undisputed facts, and (3) calls for an expeditious
resolution that cannot be obtained through other channels such as a direct appeal.”
State ex rel. Sandel v. N.M. Pub. Util. Comm’n, 1999-NMSC-019, ¶ 11, 127 N.M. 272,
980 P.2d 55; see also NMSA 1978, § 44-2-5 (1884).

{11} In applying the Sandel factors, we conclude that mandamus is appropriate. First,
the scope of the public’s ownership rights in the natural waters of New Mexico and the
competing real property interests of private landowners implicates a question of great
public importance. Second, whether it is unconstitutional for the Regulations to restrict
the recreating public from accessing public waters flowing over private property and
whether the Commission may promulgate the Regulations in the first place are both
legal questions that can be decided on undisputed facts. Third, the importance of the
constitutional issue and the need for clarification on public water access and private
property ownership merits an expeditious resolution that this Court is uniquely
positioned to provide. Therefore, we determine all three Sandel factors are met and that
mandamus is appropriate in this case.

B. Natural Water Within the State Belongs to the Public But the Beds May Be
Privately Owned

{12} Having determined that prohibitory mandamus is an appropriate vehicle to
address Petitioners’ claims, we begin by reviewing the relevant law on public ownership
rights in state waters and private ownership rights in the beds that lie beneath those
waters. Such a review is necessary for understanding why the Regulations’ threshold
for closing public access, which is based on navigability, is irrelevant to the scope of the
right of the public to use public waters under Article XVI, Section 2.

{13} In 1907, the Territorial Legislature enacted the Water Code that declared, “All
natural waters flowing in streams and watercourses, whether such be perennial, or
torrential, within the limits of the state of New Mexico, belong to the public and are
subject to appropriation for beneficial use.” NMSA 1978, § 72-1-1 (1907). This was a
declaration of “prior existing law, always the rule and practice under Spanish and
Mexican dominion.” Red River, 1945-NMSC-034, ¶ 21 (internal quotation marks and
citation omitted). The prior-appropriation doctrine was then incorporated into the New
Mexico 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
and to be subject to appropriation for beneficial use, in accordance with
the laws of the state. Priority of appropriation shall give the better right.

N.M. Const. art. XVI, § 2 (emphasis added).

{14} In 1945, this Court determined that Article XVI, Section 2, combined with
prestatehood law, established a public right to recreate in the waters of New Mexico and
that this right is equal to the right of the owners of the land near the water. Red River,
1945-NMSC-034, ¶ 59 (holding that a landowner with private property bordering and
below public water had “no right of recreation or fishery distinct from the right of the
general public”). In Red River, we addressed whether a landowner who owned land on
both sides of Conchas Lake, deemed nonnavigable water, could exclude others from
fishing in boats on the lake. Id. ¶¶ 1-13. We acknowledged ownership in the banks and
beds of a body of water may be private but emphasized that such ownership does not
change the fact that the water, next to the banks and above the beds, is public. Id. ¶ 37.

{15} In analyzing the permissible uses of public water, this Court rejected limiting the
public’s right to those of traditional navigation. See id. ¶ 36 (“[U]ses of public water are
not to be confined to the conventional ones first known and enjoyed.”). In support of the
rejection, we noted the historical expansion of the public’s use of public water:

At one time, public waters were thought of only as they afforded rights of
navigation to the height of tide water; later they were extended to include
all clearly navigable streams, and later still, to streams which would be
used, not for boats of commerce, but only for the floating of logs and other
items of commerce; and, later has come the recreational use where the
strict test of navigability earlier applied is less rigidly adhered to.

Id. ¶ 35. With this historical backdrop, we concluded that the scope of the public’s right
to use public waters is a matter of New Mexico law and that such right includes fishing
and recreation. Id. ¶¶ 35-37, 59. The conclusion that state law governs the scope of the
right of the public to use public waters over private beds tracks with federal law. See
PPL Mont., LLC v. Montana, 565 U.S. 576, 604 (2012) (“[T]he [s]tates retain residual
power to determine the scope of the public trust over waters within their borders, while
federal law determines riverbed title.”).

{16} Under federal law, title to land under nonnavigable waters remains with the
United States, United States v. State of Utah, 283 U.S. 64, 75 (1931), and title to land
under navigable waters rests with the states. Utah Div. of State Lands v. United States,
482 U.S. 193, 196 (1987). This rule that the states “hold title to the beds under
navigable waters has [its] origins in English common law.” PPL Mont., LLC, 565 U.S. at
589. In England, there was a distinction “between waters subject to the ebb and flow of
the tide (royal rivers) and nontidal waters (public highways).” Id. “With respect to royal
rivers, the Crown was presumed to hold title to the riverbed and soil, but the public
retained the right of passage and the right to fish in the stream.” Id. For public highways,
“the public also retained the right of water passage; but title to the riverbed and soil, as
a general matter, was held in private ownership.” Id.

{17} The tide-based distinction was ill-suited for the United States, and by the late
nineteenth century, the prevailing doctrine for determining title to riverbeds was
“navigability in fact.” Id. at 590. The question of navigability for determining riverbed title
is governed by federal law, which provides that public rivers are navigable in fact “when
they are used, or are susceptible of being used, in their ordinary condition, as highways
for commerce.” Id. at 591-92 (internal quotation marks and citation omitted). That said,
the beds to both navigable waters and nonnavigable waters—whether title is vested in
the state or the United States—are still subject to state law under the “public trust
doctrine.” Id. at 603-04; see also Red River, 1945-NMSC-034, ¶ 259 (opinion on second
motion for rehearing) (“These waters are publici juris and the state’s control of them is
plenary; that is, complete; subject no doubt to governmental uses by the United
States.”).

{18} The public trust doctrine “concerns public access to the waters above . . . beds
for purposes of navigation, fishing, and other recreational uses.” PPL Mont., LLC, 565
U.S. at 603. The public trust doctrine is a matter of state law subject only to
governmental regulation by the United States under the Commerce Clause and
admiralty power. Id. at 604. “Under accepted principles of federalism, the [s]tates retain
residual power to determine the scope of the public trust over waters within their
borders, while federal law determines riverbed title.” Id.; see also State ex rel. Erickson
v. McLean, 1957-NMSC-012, ¶ 23, 62 N.M. 264, 308 P.2d 983 (“The state as owner of
water has the right to prescribe how it may be used.”).

{19} Thus, while the federal “navigability” test is used to determine title to the beds
beneath water, such a test is irrelevant when determining the scope of public use of
public waters. Mont. Coal. for Stream Access, Inc. v. Curran, 682 P.2d 163, 170 (Mont.
1984) (“Navigability for use is a matter governed by state law. It is a separate concept
from the federal question of determining navigability for title purposes.”). Moreover,
“[p]rivate ownership of the land underlying natural lakes and streams does not defeat
the [s]tate’s power to regulate the use of the water or defeat whatever right the public
has to be on the water.” J.J.N.P. Co. v. State, 655 P.2d 1133, 1137 (Utah 1982). This is
why, in Red River, we could reject the traditional navigability test—the test applied by
the Regulations—for determining public use and instead conclude that the scope of
public trust to waters in New Mexico includes fishing and recreation. 1945-NMSC-034,
¶¶ 35, 43, 48. New Mexico is not alone in concluding title to the beds beneath water is
immaterial in determining the scope of public use. Montana, Idaho, Iowa, Minnesota,
North Dakota, Oregon, Utah, Wyoming, and South Dakota have all recognized public
ownership and use of water is distinct from bed ownership. See Parks v. Cooper, 2004
SD 27, ¶ 46, 676 N.W. 2d 823 (describing the states—including New Mexico—where
the public trust doctrine applies to water independent of ownership of the underlying
land).

{20} With the understanding that state law governs the scope of the public’s right to
use waters and that public use within New Mexico includes fishing and recreation, we
now turn to the merits of Petitioners’ claims. First, we address the constitutionality of the
Regulations and Section 17-4-6(C). We then consider Intervenors’ argument on judicial
taking.

C. The Regulations Are Unconstitutional

{21} Petitioners challenge the constitutionality of the Regulations and the
Commission’s authority under Section 17-4-6(C) to promulgate the Regulations. “We
review questions of statutory and constitutional interpretation de novo.” Tri-State
Generation & Transmission Ass’n, Inc. v. D’Antonio, 2012-NMSC-039, ¶ 11, 289 P.3d
1232.

{22} Petitioners argue the Regulations are unconstitutional because Article XVI,
Section 2 and this Court’s decision in Red River implicitly recognize the public’s right to
use streambeds and banks. Petitioners contend that if the public cannot use
streambeds and banks in the exercise of its right to public waters, as a practical matter,
the public “could enjoy no fishing or recreational rights upon much of the public water of
this state.” Red River, 1945-NMSC-034, ¶ 43. On the other hand, Intervenors argue that
when a member of the public walks or wades in a river where the bed is privately
owned, that person is a trespasser, and only when a landowner bars a person from
floating upon public water that can be used without walking and wading does the
landowner interfere with the person’s right to use the water. Intervenors contend
because the Regulations merely reiterate the existing right to exclude trespassers on
privately owned riverbeds, they are constitutional. We are not persuaded by Intervenors’
arguments.

{23} We conclude under Article XVI, Section 2 and our holding in Red River that the
public has the right to recreate and fish in public waters and that this right includes the
privilege to do such acts as are reasonably necessary to effect the enjoyment of such
right. See Hartman v. Tresise, 84 P. 685, 692 (Colo. 1905) (Bailey, J., dissenting)
(“[T]he people have the right of way in the bed of the stream for all purposes not
inconsistent with the constitutional grant.”); see also Galt v. State, 731 P.2d 912, 915
(Mont. 1987) (“The public has a right of use up to the high water mark, but only such
use as is [reasonably] necessary to utilization of the water itself.”); Conatser v. Johnson,
2008 UT 48, ¶ 26, 194 P.3d 897 (holding that the public’s easement includes touching
riverbeds because “touching the water’s bed is reasonably necessary for the effective
enjoyment of” the easement). Walking and wading on the privately owned beds beneath
public water is reasonably necessary for the enjoyment of many forms of fishing and
recreation. Having said that, we stress that the public may neither trespass on privately
owned land to access public water, nor trespass on privately owned land from public
water. See Red River, 1945-NMSC-034, ¶ 32 (“Access to this public water can be, and
must be, reached without such trespass.”).

{24} Article XVI, Section 2 declares that the natural waters of New Mexico “belong to
the public and [are] subject to appropriation for beneficial use, in accordance with the
laws of the state.” Thus, individuals have no ownership interest in those natural waters,
only the right to put the water to certain uses. See N.M. Const. art. XVI, § 3; see also
Snow v. Abalos, 1914-NMSC-022, ¶ 11, 18 N.M. 681, 140 P. 1044 (“The water in the
public stream belongs to the public. The appropriator does not acquire a right to specific
water flowing in the stream, but only the right to take therefrom a given quantity of
water, for a specified purpose.”). As reflected above, this is true whether the public
water is navigable or nonnavigable. A determination on navigability only goes to who
has title to the bed below the public water, Red River, 1945-NMSC-034, ¶¶ 18, 37, not
to the scope of public use.

{25} The state, as a trustee, regulates the water for the benefit of the people. See
State ex rel. Bliss v. Dority, 1950-NMSC-066, ¶ 11, 55 N.M. 12, 225 P.2d 1007.

Public ownership is founded on the principle that water, a scarce and
essential resource in this area of the country, is indispensable to the
welfare of all the people; and the [s]tate must therefore assume the
responsibility of allocating the use of water for the benefit and welfare of
the people of the [s]tate as a whole.

J.J.N.P., 655 P.2d at 1136. “A corollary of the proposition that the public owns the water
is the rule that there is a public easement over the water regardless of who owns the
water beds beneath the water.” Id. In New Mexico, we have recognized that the scope
of the public’s easement in state waters includes fishing and recreational activities. Red
River, 1945-NMSC-034, ¶¶ 26, 59. The question now is should the scope of the public’s
easement be interpreted narrowly and limited to those activities which may be
performed upon the water, as argued by Intervenors, see Day v. Armstrong, 362 P.2d
137 (Wyo. 1961), or should the scope of the public’s easement be interpreted broadly to
include lawful activities that utilize the water, as argued by Petitioners, see Conatser,
2008 UT 48, ¶ 15.

{26} In Day, the Wyoming Supreme Court limited the scope of the public’s easement
to a “right of flotation” upon the water and such activities “as a necessary incident to”
flotation. 362 P.2d at 146, 151. There, a member of the public sought a declaration that
he had a right to fish “either from a boat floating upon the river waters, or while wading
the waters, or walking within the well-defined channel of” the North Platte River where it
crossed privately owned land. Id. at 140. The Day Court declined to interpret the scope
of the public’s easement to include walking and wading on the bed of a river for fishing,
but held that the public could fish while floating. Id. at 146. The Day Court reasoned that
because the right of flotation had long since been enjoyed by the public through floating
logs and timber, it “was but a right of passage” for floating in a craft. Id. at 146-47. The
right to hunt, fish, and engage in other lawful activities were all modified by the right to
float, id., meaning they could be done as long as the person was floating and only with
“minor and incidental use of the lands beneath” water. Id. This narrow servitude
interpretation was rejected in Conatser, 2008 UT 48, ¶ 15.

{27} In Conatser, the Utah Supreme Court held that the scope of the public’s
easement included the right of the public to engage in all recreational activities that
utilize the water. Id. ¶¶ 11-28. 1 The plaintiffs in Conatser sought a declaration that the
public’s easement allows the public to walk and wade on the beds of public waters. Id.
¶¶ 1, 2. The district court held that the public’s easement was like that in Day and that
the public only had a right to be “upon the water.” Id. ¶ 2 (internal quotation marks
omitted). The Utah Supreme Court reversed the district court, reasoning that where Day
limits the easement’s scope, Utah had expanded the scope to recreational activities. Id.
¶¶ 2, 13-16. “Thus, the rights of hunting, fishing, and participating in any lawful activity
are coequal with the right of floating and are not modified or limited by floating, as they
are in Day.” Id. ¶ 14. The Conatser Court then concluded, “In addition to the
enumerated rights of floating, hunting, and fishing, the public may engage in any lawful
activity that utilizes the water . . . [and] touching the water’s bed is reasonably
necessary for the effective enjoyment of those activities.” Id. ¶ 25.

{28} Red River did not require this Court to address whether the scope of the public’s
easement includes the touching of privately owned beds beneath public water. 1945-
NMSC-034, ¶ 4. Instead the question was whether the public’s easement included the
right of the public “to participate in fishing and other recreational activities in” public
waters. Id. Similar to the easement in Conatser, this Court held that the public’s
easement is not limited to flotation or traditional navigability, but is broad and includes
the right to “general outside recreation, sports, and fishing.” Id. ¶¶ 35, 48, 59. We
conclude that implicit in our holding is the privilege to do such acts as are reasonably
necessary to effect the enjoyment of such enumerated rights. The majority’s opinion in
Red River facilitates such a conclusion for the reasons below.

{29} First, Red River rejected the common-law rule that the owner of the land beneath
water held title to the water as well as possessed an exclusive right to fish in the portion
of the waters that flow through the land. Id. ¶¶ 13, 36. To prohibit those acts reasonably
necessary to enjoy the right to recreation and fishing, such as the touching of beds and
banks, effectively reinstates the common-law rule granting landowners the exclusive
right of fishery—even if only for waters the Regulations deem nonnavigable. See
19.31.22.6 NMAC (1/22/2018) (allowing landowners to receive a certificate recognizing

1The Utah legislature subsequently limited the scope of the public’s easement. See Utah Code Ann. §
73-29-102 (2010).
that there are segments of “non-navigable public water” within the landowner’s property
whose riverbed or streambed or lakebed is closed to public access).

{30} Second, Red River rejected the majority holding in Hartman, 84 P. 685, because
it was contrary to “the better reason and the great weight of authority.” Red River, 1945-
NMSC-034, ¶¶ 38-40. In Hartman, the majority concluded that the common-law rule—
the owner of a streambed has the exclusive right of fishing in the stream that flows
through their land—applied and that there was no “public right of fishery.” 84 P. at 687.
On the other hand, the dissent, the views with which Red River agreed, 1945-NMSC-
034, ¶ 38, stated that “a public river is a public highway, and this is its distinguishing
characteristic; that the right to common of fishery was vested in the people in all public
rivers.” Hartman, 84 P. at 689 (Bailey, J., dissenting). The Hartman dissent elaborated,
“where the land belongs to one party and the water to another, the right of fishery
follows the ownership of the water; and where the public has an easement in the water
. . . fishing goes with the easement as an incident thereto, for the reason that the waters
are public.” Id. at 690 (Bailey, J., dissenting). In discussing the portion of the Colorado
constitution similar to our Article XVI, Section 2, the Hartman dissent stated, “if the
streams themselves are public, and the water belongs to the people, the people have
the right of way in the bed of the stream for all purposes not inconsistent with the
constitutional grant.” Hartman, 84 P. at 692 (Bailey, J., dissenting). Compare Colo.
Const. art. XVI, § 5 (declaring waters of natural streams as property of the public,
“dedicated to the use of the people of the state”), with N.M. Const. art. XVI, § 2
(declaring unappropriated water of natural streams as “belong[ing] to the public . . . for
beneficial use”). Thus, in favoring the view of the dissent in Hartman, we implicitly
condoned the public’s use of beds under public water as that use is reasonably
necessary to effect the enjoyment of the public’s easement.

{31} Finally, both the holding of the majority and the criticism from the dissent in Red
River suggest that the public’s right to use public waters includes such acts as are
reasonably necessary to effect enjoyment of the right to recreation and fishing. Red
River held that “[b]roadly speaking, the rule in this country has been that the right of
fishing in all waters, the title to which is in the public, belongs to all the people in
common.” 1945-NMSC-034, ¶ 48 (internal quotation marks and citation omitted). With
this holding, echoing the dissent in Hartman, Red River again implicitly condones the
use of beds beneath public water. Justice Bickley’s dissent in Red River criticized the
majority’s holding that the public’s easement included use of the beds beneath public
water:

[T]he majority feel that it is appropriate to declare that each individual
member of the public has . . . [a] right to fish in the unappropriated waters
from every natural stream . . . within the state of New Mexico without the
consent of the owners of the lands through which such streams flow and
of the banks and beds of such streams because they say that the fact that
such waters belong to the public is sufficient answer to the protests of
such property owners.
Id. ¶ 70 (Bickley, J., dissenting) (fourth alteration in original) (internal quotation marks
omitted); see also id. ¶ 177 (Sadler, J., dissenting) (criticizing the majority for stating that
access to public water must be done without trespass but then establishing a rule that
allows trespass onto banks and beds). This criticism of the majority’s holding also
suggests the dissent’s recognition of the implicit right to do such acts as are reasonably
necessary for the enjoyment of the public’s easement.

{32} Based on the aforementioned, and because we did not limit the scope of the
public’s easement to floating as in Day, we conclude that the public may engage in such
acts as are reasonably necessary for the enjoyment of fishing and recreation. Because
the Regulations close access to public water based on a finding of nonnavigability,
something Red River, 1945-NMSC-034, ¶¶ 18, 37, expressly rejected, the Regulations
are unconstitutional. To the extent that the Regulations could be interpreted as closing
access only to public water where walking and wading is involved, as argued by
Intervenors, the Regulations would still be an unconstitutional limitation on the public’s
right to recreate and fish in public waters.

{33} We emphasize that the scope of the public’s easement includes only such use as
is reasonably necessary to the utilization of the water itself and any use of the beds and
banks must be of minimal impact. “The real property interests of private landowners are
important as are the public’s property interest in water. Both are constitutionally
protected. These competing interests, when in conflict, must be reconciled to the extent
possible.” Galt, 731 P.2d at 916. That is, the right of the public and the right of the
landowner “are not absolute, irrelative, and uncontrolled, but are so limited, each by the
other, [so] that there may be a due and reasonable enjoyment of both.” Conatser, 2008
UT 48, ¶ 20 (internal quotation marks and citation omitted).

{34} Since we conclude that the Regulations are an unconstitutional limitation on the
public’s right to recreate and fish in public waters, we must determine whether Section
17-4-6(C), the statute purportedly giving the Commission authority to promulgate the
Regulations, can be read to avoid constitutional concerns. If so, we must read it as such
and conclude that the Commission lacked statutory authority to promulgate the
Regulations.

D. Section 17-4-6(C) Can Be Read to Avoid Constitutional Concerns

{35} Petitioners argue that Section 17-4-6(C) must be read to avoid constitutional
concerns and in doing so, the statute provides no support for the Regulations.
Petitioners contend that because the Commission is created and authorized by statute it
is limited to the authority expressly granted or necessarily implied by those statutes, and
it cannot promulgate regulations that conflict with the only constitutional reading of
Section 17-4-6(C). We agree.

{36} “It is, of course, a well-established principle of statutory construction that statutes
should be construed, if possible, to avoid constitutional questions.” Lovelace Med. Ctr.
v. Mendez, 1991-NMSC-002, ¶ 12, 111 N.M. 336, 805 P.2d 603; see also Allen v.
LeMaster, 2012-NMSC-001, ¶ 28, 267 P.3d 806 (“[C]ourts will avoid deciding
constitutional questions unless required to do so.”). Put another way, we should “avoid
an interpretation of a . . . statute that engenders constitutional issues if a reasonable
alternative interpretation poses no constitutional question.” Gomez v. United States, 490
U.S. 858, 864 (1989).

{37} Section 17-4-6(C) provides that no person “shall walk or wade onto private
property through non-navigable public water or access public water via private property
unless the private property owner or lessee or person in control of private lands has
expressly consented in writing.” Section 17-4-6(C) can be interpreted one of two ways:
(1) the public cannot walk or wade onto private property (excluding the beds of public
water) from public water, and the public cannot gain access to public water by crossing
over private property, or (2) the public cannot walk or wade onto private property
(including the beds of public water) from public water, and the public cannot gain access
to public water by crossing over private property. The former raises no constitutional
question. Red River reiterated several times that trespass onto privately owned lands is
not permitted. 1945-NMSC-034, ¶¶ 32, 43, 48, 56. The latter would, like the
Regulations, be an unconstitutional limitation on the public’s right to recreate and fish in
public waters.

{38} Because Section 17-4-6(C) can be construed to avoid a constitutional question
and the Regulations conflict with that constitutional reading, we conclude not only that
the Regulations are unconstitutional, but also that the Commission lacked the authority
to promulgate the Regulations. See Qwest Corp. v. N.M. Pub. Regul. Comm’n, 2006-
NMSC-042, ¶ 20, 140 N.M. 440, 143 P.3d 478 (“Agencies are created by statute, and
limited to the power and authority expressly granted or necessarily implied by those
statutes.”).

E. Because Article XVI, Section 2 Is Declaratory of Prior Existing Law, Our
Holding in This Case Is Not a Judicial Taking

{39} As a final matter, we address Intervenors’ argument that our conclusion—that the
public has a right to engage in such acts that utilize public water and are reasonably
necessary for the enjoyment of fishing and recreation—amounts to a judicial taking.
Intervenors contend that because they can trace title to the riverbeds back to the United
States the riverbeds cannot be subject to the public’s easement. We are not persuaded.

{40} As reflected above, Article XVI, Section 2 and the public’s easement in public
water stem from prior existing law recognized by the United States government. In Red
River, we began by analyzing whether Article XVI, Section 2’s declaration that the
waters of New Mexico “belong to the public” applied to the waters above nonnavigable
streams. 1945-NMSC-034, ¶¶ 16-19. This Court determined that even though the
landowner in Red River could trace his title to the land under the nonnavigable water to
an early Mexican grant and Article XVI, Section 2 could not deprive the title of any right
which may have vested prior to 1911, the constitutional declaration still applied because
it was “only declaratory of prior existing law, always the rule and practice under Spanish
and Mexican dominion.” Red River, 1945-NMSC-034, ¶ 21 (internal quotation marks
and citation omitted). “The doctrine of prior appropriation, based upon the theory that all
waters subject to appropriation are public,” applied “before New Mexico came under
American sovereignty and continu[ed] thereafter.” Id. ¶¶ 22, 26.

{41} Thus, the waters at issue are public waters and always have been. Id.; see also §
17-4-6(C) (referring to nonnavigable waters as “public water”). Intervenors’ argument
that the landowners can trace their title to the riverbeds back to the United States is
immaterial. Even if Intervenors can trace their title back to the United States—as is the
case with nonnavigable waters under the federal navigable-in-fact test—this does not
change that the owner of the land must “yield its claim of right to so reserve as against
use by the public.” Red River, 1945-NMSC-034, ¶ 23; see also id. ¶ 24 (“[T]he United
States government . . . has always recognized the validity of local customs and
decisions in respect to the appropriation of public waters.”); id. ¶ 259 (opinion on second
motion for rehearing) (“These waters are publici juris and the state’s control of them is
plenary; that is, complete; subject no doubt to governmental uses by the United
States.”). As succinctly stated by the Attorney General,

Based on Red River and subsequent cases construing New Mexico law, it
is clear that even if a landowner claims an ownership interest in a stream
bed, that ownership is subject to a preexisting servitude (a superior right)
held by the public to beneficially use the water flowing in the stream.

N.M. Att’y Gen. Op. 14-04 (April 1, 2014). Thus, any title held by Intervenors was
already subject to the public’s easement in public waters. See Red River, 1945-NMSC-
034, ¶ 45 (providing that when the United States confirmed title to the lands in question,
it did not “destroy, or in any manner limit, the right of the general public to enjoy the
uses of public waters”); see also Pub. Lands Access Ass’n v. Bd. of Cnty. Comm’rs,
2014 MT 10, ¶ 70, 373 Mont. 277, 321 P.3d 38 (concluding that under the Montana
Constitution and the public trust doctrine, nothing had been taken from the riparian
owner because he “never owned a property right that allowed him to exclude the public
from using its water resource”); cf. State v. Wilson, 2021-NMSC-022, ¶¶ 52-56, 489
P.3d 925 (describing how there is no taking when the owner’s title was already barred
under existing law from using the land a certain way). Today we merely clarify the scope
of that easement by making explicit what was already implicit in Red River.

III. CONCLUSION

{42} We conclude that the Regulations are an unconstitutional infringement on the
public’s right to use public water and that the Commission lacked the legislative
authority to promulgate the Regulations. We hold that the public has the right to
recreate and fish in public waters and that this right includes the privilege to do such
acts as are reasonably necessary to effect the enjoyment of such right.

{43} IT IS SO ORDERED.

MICHAEL E. VIGIL, Justice

WE CONCUR:
C. SHANNON BACON, Chief Justice

DAVID K. THOMSON, Justice

JULIE J. VARGAS, Justice

BRIANA H. ZAMORA, Justice