Non-navigable water on private land? No problem for public access. At least in the eyes of government.
Lucia Sanchez’s 80-acre ranch is crossed by a knee-high, non-navigable stream, and for decades, her family could preclude trespass up and down the flow. No more. The public has a right to Lucia Sanchez’s private property—so decrees the state.
“Property rights were once sacred here,” she says. “You always had to ask permission before you went on someone’s land. Now, the government has given people open-ended access to non-navigable streams. I have cattle all around the water and now I deal with the public coming at will and not knowing who they are. If I stop them, I could be the one prosecuted.”
Sanchez, along with other landowners, is fighting back with a lawsuit: “When property rights go,” she warns, “all your other rights eventually go with them.”
Private to Public
An absence of “common sense,” Sanchez contends, has forced her to court. “How many people across our country have non-navigable creeks, ditches, streams, or tributaries on their land? Should those be fully accessible to the public? Of course not.”
Fifth-generation producer Sanchez lives in northern New Mexico’s Rio Arriba County. Along with her brother, Michael, she runs cattle on 80 acres. The siblings work off-farm in public works and law enforcement. “We’re average people with one goal: protect our family legacy,” she says. “We rotate our livestock between here in New Mexico and another piece of family land in New Mexico just below the Colorado border, and like our family before us, we do whatever it takes to stay on the farm.”
With national forest surrounding most of the property, Sanchez’s acreage is a scenic mix of flatland and woodland, split by the Rio Tusas Creek spanning the entire parcel. She has title to the Rio Tusas streambed on her ground.
In 2022, the public gained access to the creek—and by proxy her entire operation—in the name of recreation or fishing, backed by the New Mexico State Game Commission.
Sanctity of private property, Sanchez contends, is gone, replaced by trash and insecurity. “It’s a stream that’s so non-navigable that you can’t even float it. There’s no way to even access it without crossing my fence and my land to get to the water. Despite what the government claims, the public comes across my land to get to the water—and it’s all approved by the state.”
“I can’t even keep a fence up on the water now or I get prosecuted, but if my cattle get out, I’m liable. I want everyone to know: The government doesn’t pay or mitigate liability, but it’s turned my private property into a public park.”
Real World
In 2022, following a lawsuit headed by the Adobe Whitewater Club of New Mexico (along with NM Wildlife Federation and NM Chapter of Backcountry Hunters & Anglers) against the New Mexico State Game Commission (NMSGC), the New Mexico Supreme Court gave the public access to private, non-navigable streambeds.
(New Mexico Department of Game and Fish declined Farm Journal interview requests.)
“Where water was navigable, the public always had full rights to cross it or go down it,” says Jeremy Talcott, Sanchez’s attorney with Pacific Legal Foundation (PLF). “After 2022, the public could access non-navigable spots that were private. Many of these people don’t respect the land and now the landowners deal with people disputing the peace, enjoyment, productive use, or environmental quality of ranching and similar activities. Previously, the landowners could put up signs or wire mesh gates across to prevent trespass. Now they can’t.”
For decades prior to the court decision, state government officials supported private property owners. In 1991, NMSGC instructed the public to “obtain permission before fishing on private lands” and stated, “nothing in this proclamation will be construed to authorize entry into or onto any privately owned property, including stream beds, without the landowner’s permission.”
In 1998, NMSGC instructed the public to “obtain permission before entering into or onto private lands, including streambeds.”
In 2015, the New Mexico state legislature again backed private land rights, declaring: “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…”
Further, NMSGC gave landowners declarative signs to post on private property recognizing “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.”
That was then, this is now: Posting those same department-issued signs is a breach of the law. “Anyone and everyone suddenly can come onto privately owned, non-navigable streambeds,” Sanchez says. “You can be armed; you can be a thief; you can be on drugs. If the landowner confronts you, all you do is say, ‘I’m fishing.’”
“And who believes the public will stick strictly to the water? No, sometimes they cut across private acres or wander around,” Sanchez adds. “The landowner has everything to lose. One lawsuit and I’m ruined. One hothead to cut my fences and shoot my cows and I’m ruined. All these are possibilities in the real world—opposite of the government fantasy.”
Fifth Amendment
In June 2024, represented by PLF, Sanchez and her brother, Michael, filed a complaint in U.S. District Court and sued Raul Torrez, state attorney general; Richard Stump, NMSGC chair; and seven other NMSGC officials. Three landowners in San Miguel County who have acreage around the non-navigable Pecos River, also joined in the suit: Erik Briones, Richard Jenkins, and Roland Rivera.
The lawsuit alleges violations of the Fifth Amendment’s taking clause, explains PLF attorney Talcott. “There are multiple branches of New Mexico government suddenly changing what has long been private into public. The U.S. Supreme Court repeatedly has held that when you change private into public, the Constitution says you must pay just compensation.”
However, Sanchez is not seeking compensation, Talcott adds. “We are seeking injunctive relief, where a court tells state agencies they can’t take these enforcement actions. Landowners must have the right to exclude.”
Long Battle
On Jan. 16, 2025, a federal judge dismissed Sanchez’s case, writing: “Absent constitutional amendment or the New Mexico Supreme Court reversing its position, landowners remain powerless to remove members of the public from their streambeds with or without executive enforcement, and therefore, their injury will remain.”
The case likely will move to the U.S. Court of Appeals for the Ninth Circuit.
Talcott says the issue could land before the U.S. Supreme Court. “These are the same issues we see in other cases whether there’s water or not. How far do public rights extend? The issues in Lucia Sanchez’s case speak to a lot of people. She’s not denying anyone in the public the right to recreate; she is preserving private property rights.”
Sanchez is ready for a long battle. “We’re already at threat to fires because the government refuses to thin the forest. Now, the water is a danger too because the state will penalize and prosecute us because we try to protect our land and herds from people sometimes cutting fences, dumping trash, and tearing up the terrain on UTVs and ATVs, all while they talk about nature and the environment.”
“The loss of private property rights can happen to anyone in this country,” Sanchez concludes. “Your rights are also under threat. I’m not afraid of this fight and to keep my mouth shut would be a travesty. I will not stay silent.”
For more from Chris Bennett (@ChrisBennettMS or cbennett@farmjournal.com or 662-592-1106), see:
Corn and Cocaine: Roger Reaves and the Most Incredible Farm Story Never Told
Cottonmouth Farmer: The Insane Tale of a Buck-Wild Scheme to Corner the Snake Venom Market
