Right to Recreation Vs. Private Property
Did the government just make trespassing in certain cases legal? That’s the contention of several agricultural land owners in New Mexico that claim the government allowing the general public unprecedented access to private, non-navigable water streambeds is in violation of their rights to hold private property. The public has always had full rights to cross or travel navigable water, but non-navigable waters on private land were considered private property and land owner permission was required to access the water. Further, land owners could erect fences and post signage concerning private property and restricted access. A change came in 2022 after the New Mexico Supreme Court ruled in favor of the Adobe Whitewater Club of New Mexico, allowing anyone access to privately owned, non-navigable streambeds.
The Rio Tusas Creek is a stream in New Mexico that travels through several cattle ranches; it is shallow stream with approximately knee-high water and unable to support any type of “whitewater” or recreational activity beyond fishing. The owners of these operations are increasingly concerned about the impact of this ruling. They are experiencing an increased number of incidents where the general public enter the property trying to access the stream, do not stick to the streambeds, have the potential to encounter free roaming cattle, and disrespect the land. Further, land owners are no longer allowed to erect fencing that prevents the public from entering the creek areas – the fencing that also serves to keep their cattle contained. In 2024, several property owners filed a complaint in US District Court, suing the state attorney general. In early 2025, a federal judge dismissed the case, but the parties intend to pursue the matter in the US Court of Appeals.
If the public’s access to privately owned, non-navigable streambeds continues to be upheld, the loss of private property rights could spread and impact other private land owners throughout the United States.
