Public Access Related to Navigable Water – Colorado & New Mexico
Interestingly enough, Colorado and New Mexico are facing similar challenges to certain aspects of their water laws. Both challenges are in regards to navigable waterways.
In Colorado, a private citizen, Roger Hill, filed a lawsuit in 2018 claiming a right to fish from the stream beds of navigable waterways based on the principle of “equal footing doctrine”. This doctrine provides that when Colorado entered the UNion it did so on an “equal footing” with other states. Therefore waterways that were or could have been used for trade at the time of statehood are considered navigable. As such the Supreme Court has held that the land under navigable lakes, streams and rivers “ is a title held in trust for the people of the state that they may enjoy the navigation of water, carry commerce over them, and have liberty of fishing therein, freed from the obstruction or interference of private parties. However Colorado has never declared any waterways “navigable” for title purposes. Currently you would be deemed a trespasser simply by floating over a riverbed if the private property extends to the centerline of the river.
If Roger HIll succeeds with his suit, this would no longer be the case for any waterway that is deemed “navigable”. Roger Hill won his latest appeal in January and the suit has been remanded to the lower court. This suit is worthy of watching as it will have major implications if successful.
In New Mexico, a rule passed in 2017 allowed private landowners to certify rivers and streams that passed through their property as “non-navigable” and thereby cut off public access. This would be at odds with the holding under the state constitution the public owns the water in streams and rivers and has the right to use for recreational purposes subject to the rights of prior appropriation water rights.
In an ongoing legal battle, private landowners are fighting to keep the rule in place after several outdoor advocacy groups succeeded in getting the state to place a moratorium on the certification process which was in conflict with the state constitution according to the advocacy groups’ attorneys.
The state constitution states “ the unappropriated water of every natural stream within New Mexico’s borders belong to the public”. The constitution makes no reference to “non-navigable” waters limiting public access to waters. Therefore, according to the outdoor advocacy groups’ attorneys the rule to certify a stream or river as “non-navigable” and cut off private access is counter to the state constitution.
The case currently sits at the State Supreme Court. This case is also worthy of watching as it would have major implications in regards to private property rights and public access to rivers and streams.
John Hayter
970-389-3010
**disclaimer – This is not to be consider legal advice and is for informational purposes only. Always consult tax and /or legal professionals for real estate legal and financial matters.