Active: Federal lawsuit filed to challenge New Mexico’s legalized trespassing

Lucía Sanchez is a rural New Mexico rancher and land planner for a local tribal government. She and her brother Miguel, who is a sheriff’s deputy, own land in Rio Arriba County, where they raise a few dozen cattle. A national forest surrounds most of the property, and the Rio Tusas Creek runs through it. The non-navigable, knee-deep creek is considered by locals to be a good fishing spot. 

Lucía’s property (above) has belonged to her family since 1942. For decades her family has raised livestock there, with each new generation taught how to be caring and responsible stewards of the land.  Lucía feels a profound connection to the property, and it offers a tangible link to her heritage. 

For many years, all branches of state government supported landowners’ rights in dealing with public intrusion, enabling Lucía to continue her family’s longtime stewardship of the land and protection of its resources. Control over public access was especially important when anglers and others arrived, unannounced and uninvited, to use the streambed on her private land. 

A 2022 decision by the New Mexico Supreme Court stripped away this right, the result of a petition filed by a group of non-profits led by the Adobe Whitewater Club of New Mexico. The groups asked the court to invalidate new regulations that allowed the New Mexico Department of Game & Fish to issue certificates confirming owners’ rights to exclude the public from private streambeds.  

The court ruled that the state’s public trust doctrine guarantees the public’s right to walk or wade in privately held riverbeds simply by virtue of the existing public right to fish or recreate in public waters. As a result, the court invalidated the regulation and the handful of certificates already issued. 

sanchez cows

Now, Lucía can only watch as trespassers take fish from her stream by the dozens. They also leave their trash behind and, despite her best cleanup efforts, Lucía’s cattle have eaten the trash and become sick. She knows she can do nothing without incurring the wrath of New Mexico’s attorney general and his aggressive pursuit of landowners who try to keep trespassers at bay. 

As Lucía puts it, “Everyone knows they’re allowed to be there.” 

While Lucía still holds title to her streambeds, she lost the right to exclude trespassers from using them. Simply put, the state’s highest court turned private property into public property without compensation. 

However, the right to own and use private land without interference from the public is not just critical and sacred to Lucía, the Constitution protects this right for everyone.  

The U.S. Supreme Court’s 2021 decision in Cedar Point Nursery v. Hassid made it clear that the government cannot force property owners to allow public trespassers on their private land without just compensation. Doing so is an unconstitutional property taking, even if the private land in question happens to be a streambed.  

Represented at no charge by Pacific Legal Foundation, Lucía and Miguel have joined Erik Briones, Richard Jenkins, and Roland Rivera in fighting back. Their federal lawsuit challenges New Mexico’s illegal taking of their right to exclude trespassers from their private, non-navigable streambeds. 

What’s At Stake?

  • The right to control who can and who cannot use one’s private property is a fundamental part of property rights. The government cannot force private property owners to allow the public to trespass on their property.
  • A state cannot transform private property into public property without just compensation.

Case Timeline

June 25, 2024
U.S. District Court - District of New Mexico