New Mexico landowners seek right to restrict streambed access

Amanda Pampuro

DENVER (CN) — New Mexico landowners with non-navigable waters running through their property asked the 10th Circuit on Friday to revive their lawsuit challenging a state law that prevents them from keeping the public from trespassing on streambeds.

“State officials are enforcing the law in a way that violates a citizen’s constitutional rights,” argued Pacific Legal Foundation attorney Christopher Kieser.

Kieser’s clients include Erik Briones, Richard Jenkins and Roland Rivera, whose family has owned land along the Pecos River in San Miguel County since New Mexico became a state in 1912. Lucia Sanchez and her brother, Michael, ranch along a knee-deep stretch of the Rio Tusas in Rio Arriba County, where their family has lived since 1942.

They believed their property rights included the ability to bar trespassers from streambeds, even though the water itself is public under New Mexico law.

But in 2022, the New Mexico Supreme Court ruled in Adobe Whitewater Club of New Mexico v. New Mexico State Gaming Commission that the state had long misapplied its own law and that the public has the right to access streambeds and streams.

The landowners argue that opening their private streambeds up to the public counteracts conservation efforts and unduly strips them of their private property without compensation.

The landowners, two of whom have been prosecuted for restricting access to their property, filed a federal lawsuit on June 25, 2024. A judge dismissed the case in January 2026, ruling the court lacked jurisdiction and that the plaintiffs lacked standing. The landowners appealed.

U.S. Circuit Judge Carolyn McHugh said those facing prosecution likely had standing but questioned whether a federal court could override the state’s interpretation of its own constitution.

“You have an order from the state supreme court saying you never had a right, so nothing was taken,” said McHugh, who was attending the hearing remotely. “Are you asking us to overrule the New Mexico Supreme Court on what the New Mexico Constitution means?”

From the state’s view, however, nothing was taken, because the landowners never owned the streambeds, just as they never owned the streams.

“In New Mexico, the public owns the water, and there has never been a right to exclude the public from accessing the water,” argued New Mexico attorney James Grayson.

Joe Biden-appointed U.S. Circuit Judge Richard Federico asked Grayson to pay out his easiest path to victory.

“It’s standing, finding that they lack standing,” Grayson said.

Obama-appointed U.S. Circuit Judge Gregory Phillips rounded out the panel, which did not indicate when or how it would decide that case.