Five New Mexico landowners sued state officials, including the Attorney General and members of the State Game Commission, alleging that a 2022 New Mexico Supreme Court decision, Adobe Whitewater Club of New Mexico v. New Mexico State Game Commission, constituted a judicial taking of their property rights. The landowners held title to non-navigable streambeds of the Rio Tusas or Pecos River. They claimed the state court's ruling, which granted the public a right to walk and wade on private streambeds to access public water, eliminated their established right to exclude the public without just compensation. The district court had dismissed the case, finding the landowners lacked standing and that sovereign immunity barred the claims. The Tenth Circuit reviewed these jurisdictional hurdles before addressing the merits of the takings claim.
The Tenth Circuit first addressed the jurisdictional barriers raised by the district court. Regarding standing, the court rejected the district court's finding that the injury was not traceable to the defendants. While the loss of the property right was caused by the state supreme court, the threat of prosecution was caused by the state officials enforcing that decision. The court found this threat was a concrete injury that was redressable by an injunction against the officials, satisfying the requirements of Article III. On sovereign immunity, the court held that the Ex parte Young exception applied. The landowners sought prospective relief to stop future enforcement, which does not functionally require the state to pay funds from its treasury for past conduct. The court also rejected arguments that the case was barred by the Rooker-Feldman doctrine or principles of abstention. Turning to the merits, the court assumed without deciding that the Fifth Amendment protects against judicial takings, citing the plurality opinion in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. Under that framework, a judicial decision is not a taking if it merely clarifies or elaborates on property entitlements that were previously unclear. The court analyzed whether the landowners had an established right to exclude the public. It found that the New Mexico Supreme Court's prior decision in Red River Valley and the Adobe Whitewater decision itself indicated that the public's right to access water included an easement to touch the streambeds. The court concluded the landowners failed to plausibly allege that their claimed right to exclude was established under state law or traditional property principles, as the state court's decision was a clarification of the scope of the public easement, not a taking of a new right.
The dismissal of the landowners' claims was affirmed without prejudice, meaning they may refile their lawsuit if they can develop new factual allegations that plausibly establish an existing property right to exclude the public. The decision reinforces the principle that judicial decisions clarifying the scope of public easements in water rights do not constitute takings, even if they limit a landowner's ability to exclude others from streambeds. State officials are not barred from enforcing the public's right to access public waters, provided they do not take property without compensation.
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