Varela, 040114 NMAGO, AGO 14-04

• Docket Nº: AGO 14-04
• Case Date: April 01, 2014
• Court: New Mexico

The Honorable Luciano "Lucky" Varela AGO 14-04 Opinion No. 14-04 New Mexico Attorney General Opinions Attorney General of New Mexico April 1, 2014          GARY K. KING, Attorney General          OPINION OF GARY K. KING, Attorney General          ALBERT J. LAMA, Chief Deputy Attorney General          Stephen R. Farris, Assistant Attorney General          The Honorable Luciano "Lucky" Varela          New Mexico State Representative          1709 Callejon Zenaida          Santa Fe, NM 87501          QUESTION:          May a private landowner exclude others from fishing in a public stream that flows across the landowner's property?^[1]          CONCLUSION:          No. A private landowner cannot prevent persons from fishing in a public stream that flows across the landowner's property, provided the public stream is accessible without trespass across privately owned adjacent lands.^[2]          BACKGROUND:          New Mexico is a prior appropriation state. Under the prior appropriation doctrine, recognized in most western states, a user acquires a right to water by diverting that water and applying it for a beneficial use. Under the corollary rule of priority, the relative rights of water users are ranked in the order of seniority. See Colorado v. New Mexico, 459 U.S. 176, 179 (1982). This is pertinent to the question asked because in accordance with this doctrine, the Territory of New Mexico and later the State of New Mexico declared that all the waters in the state belong to the public. In 1907, when the Territorial Legislature enacted the Water Code, it declared:

All the 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. A watercourse is hereby defined to be any river, creek arroyo, canyon draw or wash, or any other channel having definite banks and bed with visible evidence of the occasional flow of water.

See NMSA 1978, § 72-1-1 (1907, as amended through 1941). The Water Code of 1907 was merely declaratory of the law existing at that time. Hagerman Irrigation Co. v. McMurry, 1911-NMSC-021, ¶ 4, 113 P. 823, 824. The prior appropriation doctrine was subsequently incorporated in 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.

N.M. Const, art. XVI, § 2.          By contrast, some states follow the riparian doctrine, which entitles the owner of land contiguous to a watercourse to have that water flow by or through the owner's land "undiminished in quantity and unpolluted in quality," except that any such owner may make whatever use of the water that is reasonable with respect to the needs of other water users. Colorado, 459 U.S. at 179. Riparian ownership of water has never been recognized in New Mexico. Hagerman Irrigation Co., 191 l-NMSC-021, ¶ 6, 113 P. at 825, and prior appropriation continues to be the law in this state.          Even though the New Mexico Constitution declares all the waters in the state to be public, there continues to be some confusion and misunderstanding of what this means for public waters crossing the private property of a landowner. The question addressed in this opinion arises from the tension between the rights of the public and the rights of private landowners.          ANALYSIS:          The New Mexico Supreme Court addressed a question similar to that presented here in 1945. The question decided in State ex rel. State Game Commission v. Red River Valley Company was whether the public had the right "when properly authorized by the State Game Commission, to participate in fishing and other recreational activities in the waters in question" even though the banks on both sides of those waters were owned by a private company via patent from the U.S. government.^[3] 1945-NMSC-034, ¶4, 51 N.M. 207, 212. The Supreme Court answered the question in the affirmative. While the holding in Red River is nearly 70 years old, it has never been successfully challenged or overturned.          In Red River, the landowner sought to exclude others from fishing in boats in Conchas Lake where the landowner owned the land on both sides of the lake. The New Mexico Supreme Court held that "the waters in question were, and are, public waters; and that appellee [landowner] has no right of recreation or fishery distinct from the right of the general public."...