NM Stream Access Law Upheld by SCOTUS

[MBWCC]

The US Supreme Court just upheld NM constitutional right for anglers to access streams on private land. This is great news for. anglers arguing that state access laws are indeed constitutional.

U.S. Supreme Court Dismisses Lawsuit Challenging New Mexico Stream Access Law

 

[salmonoid]

How so? It only confirms that in New Mexico, the constitutional definition adopted in 1911 of who owns every natural stream, torrential, or perennial water is indeed the public and that private landowners can't block access to users who are in those public waters. I'm not sure there is much more you can extrapolate to other states in that type of a ruling, as access rights vary widely.

 

[MBWCC]

How so? It only confirms that in New Mexico, the constitutional definition adopted in 1911 of who owns every natural stream, torrential, or perennial water is indeed the public and that private landowners can't block access to users who are in those public waters. I'm not sure there is much more you can extrapolate to other states in that type of a ruling, as access rights vary widely.

As each state was granted statehood the US government required that the state hold all navigable waterways in public trust. The supreme court previously upheld that doctrine. However, the current court has shown it isn't particularly enamored with precedent, hence any SCOTUS opinion from the current court upholding stream access is a good sign.

A good article giving some of the factual basis can be found in this article describing a stream access legal battle waging in Colorado. In that case a gentleman is essentially claiming that Colorado has failed its duty as required by its grant of statehood, albeit he is approaching the situation from a different angle.

https://www.denverpost.com/2022/02/03/colorado-rivers-public-access-case/

This article does a slightly better job of describing the federal issue.

Public Access to Water Flowing Through Private Property - Water Education Colorado

By Larry Morandi A Denver Post article written by Jason Blevins resurrects a water issue left unresolved in Colorado for nearly 40 years. “Who owns the bottom of the river?” asks a lawsuit brought by a fisherman, Roger Hill, against a landowner, Mark Warsewa, who has blocked Hill’s access to...

www.watereducationcolorado.org

The SCOTUS ruling in the case of NM suggests SCOTUS, if asked, would find Colorado has failed its requirements, and, by example, all other states must do likewise.

Which is all good news to flyfishers everywhere.

 

[jeffroey]

I find this a fascinating topic. It explains at least for me why some of PAs trickles are considered "navigable".

Contrary to the CO article linked that seems to imply the burden of proof of "navigable at statehood" is on the plaintiff, I seem to recall seeing a list of PA rivers classed as "navigable" by the state.

In other words, in the CO case plaintiff has to prove what's nav. In PA, has the state formally done that? Anybody know?

 

[tomgamber]

As mentioned earlier if it's navigable in fact, it's navigable by law.

 

[wgmiller]

“However, the current court has shown it isn't particularly enamored with precedent….”

That’s an understatement!

 

[MBWCC]

I find this a fascinating topic. It explains at least for me why some of PAs trickles are considered "navigable".

Contrary to the CO article linked that seems to imply the burden of proof of "navigable at statehood" is on the plaintiff, I seem to recall seeing a list of PA rivers classed as "navigable" by the state.

In other words, in the CO case plaintiff has to prove what's nav. In PA, has the state formally done that? Anybody know?

PA law allows that a stream that has ever been used for commercial transport is deemed navigable. The list you saw regarding PA streams is likely the list PA DCNR compiled & published. The rivers & streams listed reflect the rivers for which the state has found evidence of commercial use. The data was compiled during the court battle regarding the Little Juniata. The state has not declared the listed rivers to be navigable, only that the state has found evidence of commercial use.

 

[tomgamber]

As mentioned earlier if it's navigable in fact, it's navigable by law.

And yes, It is that simple.

 

[pcray1231]

Here's the DCNR's list in map form.

Public Streambeds

Explore Pennsylvania's public streambeds with the DCNR Public Streambeds web mapping application!

www.gis.dcnr.state.pa.us

Again, this is what the DCNR considers to be navigable and therefore a public streambed, and can't be posted. The DCNR list carries no legal water. If there's a disagreement on any stream, on the list or not, it's up to a judge. The courts have said evidence of past commercial use is the determinator. The DCNR took it upon themselves to search for evidence of past commercial use, mostly based on declarations of public highway in the 1800's. This is their list. So, if one of the streams is posted, and you trespass, and fight it in court on grounds of navigation. The DCNR says you can likely find the evidence the judge should be looking for on these streams. But it's still up to the judge.