Cody Barnes


Every state has a public trust doctrine that protects commonly owned natural resources. Under the doctrine, the state has a fiduciary duty to maintain the resources and ensure the public can use them. Generally, if the state breaches its fiduciary duty, the public can sue. Yet, New Mexico has trust issues. In Sanders-Reed v. Martinez, the New Mexico Court of Appeals expanded the resources within New Mexico’s public trust but made it inept in the same breath. The court extended the trust to encompass air, water, and all other natural resources. However, it then severely limited the state’s protection of those resources by removing the public’s cause of action under the doctrine in many instances. Without a cause of action, there is neither a mechanism to enforce the state’s public trust duties nor is there anything to incentivize the state to protect the entrusted resources. In short, without enforcement, the resources can easily be misused and abused. New Mexico’s public trust now protects the entrusted resources in name only. This Comment outlines how the state’s doctrine operates regarding one entrusted resource: water. It illustrates that there are very limited instances in which the public can sue the state for breaching a public trust duty and proposes two possible solutions. First, the legislature could address the issue directly; it could pass a law which gives the public a legal right to sue the state for breaching any public trust duty. Alternatively, the state could pass the so-called “Green Amendment,” a proposed constitutional amendment that creates a fundamental right to “pure water” and “clean air,” which would give the public a legal right under the New Mexico Civil Rights Act to sue the state.

Included in

Law Commons



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.