Adobe Whitewater Club of N.M. v. N.M. State Game Comm'n, S-1-SC-38195

CitationS-1-SC-38195
Case DateSeptember 01, 2022
CourtSupreme Court of New Mexico

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.

No. S-1-SC-38195

Supreme Court of New Mexico

September 1, 2022


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

MICHAEL E. 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

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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
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(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

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"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.

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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

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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...

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