Recreational users have won most of these cases in the Rocky Mountain states, as courts have decided that public ownership of water gives the public a right to access the state’s waters. 

Colorado was the first to put such language in its constitution, and several others followed suit, including Wyoming, New Mexico and Montana. Other states, including Utah, have such language in statutes.

But the beds and banks of many Western streams belong to the owners of adjoining lands unless the land along a stream is government-owned. That leads many landowners to see a stream as part of their property, while paddlers and anglers view it as a public resource.

Recently, the New Mexico Supreme Court further defined access, ruling that the public has the right to stand on privately owned streambeds to boat through or fish — a loss to landowners who want to exclude the public.

New Mexico decided the first case about recreational use of water that flows through private land in 1945, when its supreme court ruled that the public has a constitutional right to float on waters that are owned by the public. Dissenting judges complained about destroying property rights, but the precedent was set.

Other state courts have reached similar decisions about their state’s public ownership laws. First, Wyoming, then Idaho, Utah and Montana all found that the public has a right to float the state’s waters because the public owns them. But specifics vary, especially about public rights to touch privately owned streambeds. For example, there is a right to wade in Montana but not Wyoming. 

Only Colorado rejected public access, as a divided court in 1979 saw public ownership of water as less meaningful than ancient property rules favoring landowners. Because Colorado has no public right to touch private streambeds, an angler is suing to have the upper Arkansas River declared “navigable” — meaning the state would own its beds and banks.

This issue flared up in New Mexico when the State Game Commission under then-Gov. Susana Martinez (R)) adopted a rule allowing a landowner to close off waters flowing through their property if the commission approved the landowner’s petition.  

The rule was always legally dubious, but it took New Mexico’s recent Supreme Court decision to overturn it. The court ruled unanimously that the right of public access includes walking and wading on privately owned streambeds as “reasonably necessary” for fishing and other recreational uses.

Not surprisingly, New Mexico’s recreation community loved the recent decision, while landowners did not. Gov. Michelle Lujan Grisham (D) seemed relieved that the issue was decided, though not necessarily thrilled with the outcome.

Her spokesperson told the Albuquerque Journal that the ruling “provides needed clarity on the issues of stream access.” The governor had not advocated for public access, and was widely seen as having axed two Game Commissioners for their pro-access positions.

State elected officials and agencies have rarely led the charge for public access in the Rocky Mountain states. Except for the early New Mexico case, all lawsuits have been brought by recreational users, not state agencies. Sadly, elected officials are often reluctant to support access despite the popularity of outdoor recreation, perhaps because of the influence of wealthy streamside landowners.

That leaves the courts to play a crucial role, although they do not always get the last word. In Utah, the legislature soon curtailed the public rights recognized by its supreme court in 2008.

Disagreements continue about what waters are, and should be, open to the public. But except in Colorado, the Rocky Mountain courts have not allowed landowners to exclude recreational users, largely because the law declares that water belongs to the public.

The recent New Mexico decision is the latest to affirm that public ownership means public access.

Reed Benson is a contributor to Writers on the Range, writersontherange.org, an independent nonprofit dedicated to spurring lively conversation about the West. He is a longtime kayaker and a law professor at the University of New Mexico, focusing on water law and policy.

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I eyed the 100 feet of sheer sandstone rising out of the water. For much of the past half-century, boats that entered upper Fiftymile Canyon in Glen Canyon National Recreation Area could blithely float over Gregory Natural Bridge with about 40 feet of clearance.

Not anymore. Two decades of drought had diminished the lake, and motorized river traffic could no longer float overtop.

Now, however, a new passageway to Fiftymile’s inner sanctum was possible. That gave me a chance to become (possibly) the first person to pass under Gregory Natural Bridge since the archway was drowned 52 years ago.

Doing so would require swimming underwater while holding my breath, something I’d practiced over a decade and a half of visiting coral reefs. I’m far from a professional free diver, but I have been known to spend a minute or two communing with croaking toadfish 50 feet beneath the waves.

I filled my lungs one last time and plunged down, scissor-kicking my way into the bracing, turbid water.

I’d spent the previous week with 11 other Alaskans in southeastern Utah, negotiating the rapids of the Escalante River, an underappreciated gem that used to join the Colorado River but now feeds into Lake Powell. The Escalante has traditionally been considered navigable only during its spring flood. But word had trickled out that pack-rafts and patience could get you down the last 40 miles of it before it reached Lake Powell, even during low flows.

Upriver in the town of Escalante, a water gauge gave a reading of just half a cubic foot per second for much of our journey, which began at Fence Canyon, 40 miles down the river. Only the cumulative output of spring-fed side canyons kept us moving.

When we arrived at Lake Powell’s “full pool line,” where the reservoir used to start when Glen Canyon Dam was at capacity, we were in for a shock. It would have been impossible to guess that water once covered the banks; now, cottonwoods three stories tall bordered the river.

It would take us another day and a half of increasingly arduous travel to finally enter Lake Powell.

As the shoreline vegetation shrank, then disappeared, we gave up trying to float and began walking our boats. The braided river channel was choked with sediment that broke off from the banks in basketball-sized chunks. A rock pinnacle called Explorer Island was ringed with cracked mud studded with dry buoys.

I’ve worked as a field ecologist for almost as long as the Western Rockies have been in a state of drought, but I’ve never seen a place so clearly in the throes of change. In 36 hours, we’d rewound the tape on 20 years of ecological succession — from riparian forest back to mud.

We were ready to quit sloshing through the Escalante River when we finally reached the depleted reservoir and our rented houseboat. Then it took us less than an hour to reach our goal, the place where Gregory Natural Bridge lurked beneath us. There, time compressed as I dropped underwater and passed through a shimmering boundary between the sun-warmed surface layer and the colder depths. Only then did the top of the archway come into view.

As I passed under it at about 15 feet, there was more overhanging sandstone. Low visibility obscured what was ahead, but I decided to trust my lungs and finned forward, following the gradual rise of the rock above me.

A diffuse glow became refracted light and then sunshine as I splashed back into the day. I was just 50 feet upstream, but once under the bridge and out the other side, I was in a world removed from where I had taken my last breath.

It was quiet, with no sound of boats or people. Around me rose a red-rock panorama that had been hidden away for years. It was glorious.

True, it might be a tragedy for flat-water recreationists and businesses if climate change and over-allocation of water rights in the West doom Glen Canyon Dam, letting loose the Colorado River.

But I can attest there would be marvels for visitors, and what a boon for nature that would be.

Tim Treuer is a contributor to Writers on the Range, writersontherange.org, a nonprofit dedicated to spurring lively conversation about the West. He lives in Alaska and is a writer and ecologist.

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