[00:00:00] Speaker 00:
The next case for oral argument is Sanchez versus Torres, docket 25-2009.

[00:00:09] Speaker 00:
Counsel.

[00:00:09] Speaker 01:
Good morning, Your Honors, and may it please the Court, Chris Keizer, for appellants.

[00:00:13] Speaker 01:
I'd like to try to reserve two minutes for rebuttal.

[00:00:16] Speaker 01:
My clients are New Mexico landowners who hold title to the beds of non-navigable streams running through their land.

[00:00:22] Speaker 01:
For decades, they had the right to exclude the public from walking and waiting on those stream beds.

[00:00:27] Speaker 01:
Until 2022, all three branches of New Mexico government recognized these rights, and my client, Mr. Briones, even had signs from the Game Commission and the Department of Game and Fish issued to that effect only a few years ago.

[00:00:39] Speaker 01:
The defendants here, the commissioners, the director of the Department of Game and Fish, and the attorney general all flipped their position only after the New Mexico Supreme Court for the first time in state history

[00:00:51] Speaker 01:
declared that the state constitution's public water clause guarantees public access to walk and wait on these privately owned stream beds.

[00:01:00] Speaker 01:
After that decision, the state officials began cracking down on property owners who still wish to exercise their right to exclude.

[00:01:07] Speaker 01:
The attorney general has already sued two of my clients and threatens more action while the commission and the department have warned stream bed owners not to display even the signs that the agencies themselves issued only a few short years ago.

[00:01:19] Speaker 01:
Is it cracking down or just enforcing the law?

[00:01:23] Speaker 01:
Your Honor, that's precisely what they're doing.

[00:01:24] Speaker 01:
They're enforcing state law and that's exactly why this is a classic ex parte young case.

[00:01:30] Speaker 01:
The streamboat owners allege that New Mexico has taken their right to exclude by essentially defining it out of existence because New Mexico can't be sued for inverse condemnation

[00:01:38] Speaker 01:
in federal court, the owner sued the officials who enforced state law through ex parte young.

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They've already enforced the law.

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They threaten to enforce more in the future.

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This is exactly the function of ex parte young.

[00:01:50] Speaker 01:
When state officials are enforcing state law in such a way that it violates a citizen's federal constitutional rights, the citizen may obtain prospective injunctive relief to stop further violations, and that's all we seek in this case.

[00:02:03] Speaker 00:
I think the... What is the federal constitutional right that we could announce in view of the New Mexico Supreme Court's ruling on which I think its word is final?

[00:02:12] Speaker 01:
The New Mexico Supreme Court's ruling, Your Honor, is a final ruling as a matter of state law.

[00:02:17] Speaker 01:
And we don't contest that Adobe Whitewater is a pronouncement of state law.

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This court, of course, has no power to overrule Adobe Whitewater.

[00:02:25] Speaker 01:
But this is just like any ex parte young case.

[00:02:28] Speaker 01:
When a state legislature passes a law and someone challenges it under ex parte young, the enforcement of that law, and the federal court finds that those rights were violated,

[00:02:42] Speaker 01:
It doesn't go back and then cross out the state law or overrule it.

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It just says you can enforce that law against these parties.

[00:02:50] Speaker 00:
It sounds like you're saying there's a higher right than the right that New Mexico has recognized, a higher federal right.

[00:02:59] Speaker 00:
What is that right?

[00:03:01] Speaker 01:
And what's its source, more importantly?

[00:03:04] Speaker 01:
The right to exclude is the right, as the Supreme Court has most recently recognized in Cedar Point nursery, the right to exclude is one of the most fundamental property rights.

[00:03:13] Speaker 01:
And in here, essentially, what the state officials are doing is enforcing a public easement on these private stream beds.

[00:03:22] Speaker 01:
It's exactly what happened in Cedar Point where the Supreme Court held

[00:03:27] Speaker 01:
that it was a taking of the right to exclude to require the growers in that case to allow union organizers onto their property 120 days per year.

[00:03:39] Speaker 01:
It's exactly the same thing.

[00:03:40] Speaker 03:
You describe the right as the ownership interest, but the right is

[00:03:52] Speaker 03:
not to have it taken without just compensation, right?

[00:03:58] Speaker 03:
That's the constitutional issue.

[00:04:00] Speaker 01:
That's correct.

[00:04:01] Speaker 01:
So it's the right to exclude, which cannot be taken without just compensation.

[00:04:07] Speaker 03:
And just as in Cedar Point, where... It's not the right to exclude, it's the right... If you have a right, it can't be taken without compensation.

[00:04:17] Speaker 01:
Whatever your right is.

[00:04:18] Speaker 01:
Correct, Your Honor.

[00:04:19] Speaker 01:
Just as in Cedar Point, when the growers there... So you got a decision from...

[00:04:25] Speaker 03:
You got a decision from the state Supreme Court saying that you never had such a realm.

[00:04:33] Speaker 03:
And that means nothing was taken.

[00:04:37] Speaker 03:
So there would be no need for just compensation.

[00:04:41] Speaker 03:
Are you asking us to overrule the state of New Mexico Supreme Court decision on what the New Mexico Constitution means?

[00:04:51] Speaker 01:
Of course not, Your Honor.

[00:04:52] Speaker 01:
You have no power to do that.

[00:04:54] Speaker 01:
What we're asking for is to understand that a state cannot simply define a right that has existed for years out of existence, whether it's through a judicial proclamation, through a legislation, or through executive action like in Cedar Point.

[00:05:10] Speaker 03:
And so, just the... But you're ignoring what I'm saying.

[00:05:18] Speaker 03:
They didn't do that.

[00:05:19] Speaker 03:
What they said was,

[00:05:20] Speaker 03:
It never existed the way you were defining it and that we never even said that in our prior decision.

[00:05:28] Speaker 03:
And so in order for us to, you know, I do think you're standing.

[00:05:34] Speaker 03:
So, but in order for you to have a cognizable claim, I don't know what we can do if the state Supreme Court has held

[00:05:47] Speaker 03:
that the right you claim has been taken without just in compensation, you never have ever in the state of New Mexico.

[00:05:56] Speaker 01:
Your honor, this is why the Supreme Court in Cedar Point and Tyler versus Henneman County has emphasized that the states are not the final expositor of property rights.

[00:06:05] Speaker 01:
And it's asked lower courts to look to things like the tradition of the right being recognized in the past.

[00:06:13] Speaker 01:
And here we have exactly that.

[00:06:14] Speaker 01:
Our complaint alleges decades of proclamations from the Department of Game and Fish and the Game Commission recognizing the right to exclude.

[00:06:27] Speaker 01:
Then there's a 2015 statute that recognizes the right to exclude.

[00:06:31] Speaker 01:
and the 2018 administrative rule.

[00:06:35] Speaker 04:
Council, can I pick up the thread with Tyler, in particular, that case?

[00:06:39] Speaker 04:
Sure.

[00:06:40] Speaker 04:
The Supreme Court said, I think you correctly noted, that state law is not the final word on property rights.

[00:06:47] Speaker 04:
And one of the things you look to is historical practice.

[00:06:51] Speaker 04:
Even though here, Adobe Whitewater says, well, they never had the right.

[00:06:54] Speaker 04:
We're just now making explicit what the Constitution's always said, but that right never existed.

[00:06:59] Speaker 04:
Is it your argument, though, that the historical practice within the state that always did recognize a right, the Supreme Court said never existed, is enough under Tyler to conclude here that when we look beyond just Adobe Whitewater, there may be other sources that give rise to a takings claim?

[00:07:18] Speaker 01:
Yes, Your Honor, and one of those sources is the Supreme Court, the New Mexico Supreme Court's decision in Red River Valley, which I recognize that the Adobe Whitewater Court just viewed themselves as applying Red River Valley, but if you look at the Red River Valley opinion, and it's the reason why the Department and the Commission had taken their position on the right to exclude for all those years, because Red River Valley is a decision about public water, not about the land beneath the water.

[00:07:44] Speaker 01:
In fact, when it denied the

[00:07:46] Speaker 01:
the rehearing motion, it was careful to distinguish between those things.

[00:07:51] Speaker 01:
It said that it's not a trespass to fish from a boat above the owner when the stream beds are privately owned, but it would be a trespass to walk and wade.

[00:08:02] Speaker 01:
Now, they didn't explicitly say it would be a trespass to walk and wade, but that's the implication there, and that's exactly what the executive agencies picked up on in issuing their proclamations

[00:08:14] Speaker 01:
And then that was made explicit in 2015 via legislation and in 2018 via the rule that allowed the certification and the signage to be issued.

[00:08:24] Speaker 01:
So by 2022, it was clear that the political branches understood in New Mexico that there was a right to exclude.

[00:08:32] Speaker 01:
And Adobe Whitewater, of course, held that it didn't change the law in such a manner to commit a taking.

[00:08:40] Speaker 01:
The state Supreme Court is not the final word on that.

[00:08:44] Speaker 01:
Federal courts are the final word on whether a taking has occurred.

[00:08:48] Speaker 01:
And so here, you know, my clients were not parties to Adobe Whitewater.

[00:08:52] Speaker 01:
After 2022, they have experienced these enforcement actions, and that is what gives us standing.

[00:08:58] Speaker 01:
And it's the enforcement actions themselves.

[00:09:01] Speaker 01:
I think a lot of the argument sort of misunderstands what Young actually does.

[00:09:07] Speaker 01:
The source of the state law

[00:09:09] Speaker 01:
doesn't actually matter.

[00:09:10] Speaker 01:
It could be an executive proclamation, a rule like in Cedar Point, it could be a statute like in Young itself, and it could be the state constitution or a judicial interpretation of the constitution.

[00:09:22] Speaker 01:
In any event, it's the enforcement that is what matters.

[00:09:25] Speaker 01:
And here, my clients only seek to restrain the enforcement of

[00:09:31] Speaker 01:
what is now considered to be New Mexico law.

[00:09:35] Speaker 01:
And of course, New Mexico, if they want to have these public rights, they can have them.

[00:09:40] Speaker 01:
And as Judge McHugh pointed out, they could pay just compensation for these rights.

[00:09:44] Speaker 01:
Just as Justice Breyer pointed out in his dissent in Cedar Point, that injunction could be dissolved if

[00:09:53] Speaker 01:
that the state decides it wants to pay for the rights that it took.

[00:09:58] Speaker 01:
But that hasn't happened.

[00:09:59] Speaker 01:
And so that is why, under Nick, we're entitled to a federal forum.

[00:10:04] Speaker 01:
And the only remedy we can get in a federal forum is prospective injunctive relief.

[00:10:09] Speaker 01:
And that's why we sought that in this case.

[00:10:16] Speaker 01:
So I want to move on to the sovereign immunity.

[00:10:19] Speaker 01:
question, I think that it's kind of intertwined with the standing and ex parte young, but I think the district court on sovereign immunity, it assumed that the state officials would not be able to comply with an injunction, but that's just wrong under ex parte young.

[00:10:37] Speaker 01:
the state officials would have to comply if there is an injunction issued.

[00:10:41] Speaker 01:
And therefore, there's no way that this case could result in draining the state treasury.

[00:10:46] Speaker 01:
And it's just a classic ex parte young case.

[00:10:49] Speaker 03:
And nor do we have to go to... The state could choose, right?

[00:10:57] Speaker 03:
The state could choose to continue to enforce it and compensate.

[00:10:59] Speaker 01:
That's correct.

[00:11:00] Speaker 03:
But they wouldn't have to.

[00:11:01] Speaker 01:
That's correct.

[00:11:03] Speaker 01:
Sorry.

[00:11:03] Speaker 01:
I'm sorry, Judge, with you.

[00:11:05] Speaker 03:
I'm sorry, but if the state enforcers would have no right to enforce a law that's been struck down as unconstitutional by the federal court?

[00:11:20] Speaker 01:
That's correct, Your Honor.

[00:11:21] Speaker 01:
So there's no way in which the relief that we seek is not prospective, and that's why it is properly sought under Ex parte Young.

[00:11:29] Speaker 01:
And the argument the district court and my friend on the other side make about having to go to state court first

[00:11:35] Speaker 01:
seems to be, they cite Williamson County, which is a case that's been overruled.

[00:11:41] Speaker 01:
There are cases, like this court's case in Williams, that say that if retrospective relief is being sought and the state courts are open to hearing that case, then you do have to go to state court.

[00:11:57] Speaker 01:
But that is not a case about prospective relief under Ex parte Young.

[00:12:01] Speaker 01:
That's just a garden variety sovereign immunity case.

[00:12:05] Speaker 01:
And so here, we don't have to go to state court.

[00:12:08] Speaker 01:
We have a right to a federal forum under Nick.

[00:12:13] Speaker 03:
I was a little confused by those cases because it's a little hard to tell in some of them.

[00:12:21] Speaker 03:
whether you're saying you have a requirement to exhaust essentially in the state court, or if it's just a decision saying that equitable relief is not available if you have an adequate remediated law.

[00:12:37] Speaker 03:
And I think it matters here because one is jurisdictional and one is not.

[00:12:43] Speaker 01:
Yes, Your Honor, you don't have to...

[00:12:46] Speaker 01:
You don't have to exhaust because, Nick, over rural Williamson County, there's no more state litigation requirement.

[00:12:52] Speaker 01:
As far as the other, wait, I'm sorry, what was the second part of your question?

[00:12:57] Speaker 03:
I just wanted to make sure.

[00:13:02] Speaker 01:
So the reason we're entitled to equitable relief is the same reason that the growers in Cedar Point were entitled to an injunction and ultimately did get one because they were suing state officials who can't be sued for inverse condemnation and that's why they're entitled to equitable relief.

[00:13:22] Speaker 01:
I'd like to try to reserve.

[00:13:23] Speaker 04:
Counsel, before you sit down, you're invoking ex parte young and the primary justification I hear for it is your prayer for relief in which you are asking for permanent injunctions.

[00:13:35] Speaker 04:
But what about the declaratory relief you seek where you want the district court to declare that defendants essentially have committed a per se taking of plaintiff's right to exclude

[00:13:49] Speaker 04:
If that is declared, is there any other option they have at that point other than to provide just compensation?

[00:13:57] Speaker 01:
Yes, Your Honor.

[00:13:57] Speaker 01:
They can just continue to not enforce the law against my clients and then it wouldn't be a taking because we don't have a right to any retrospective relief.

[00:14:06] Speaker 01:
We only have a right to perspective relief and that's all we saw.

[00:14:10] Speaker 04:
So you don't think it makes any difference whether it's a declaration or an injunction?

[00:14:14] Speaker 01:
I think the declaratory relief goes hand in hand with the injunction, but I don't think it makes a difference as far as that goes, no.

[00:14:21] Speaker 01:
I'd like to try to reserve my remaining 45 seconds.

[00:14:23] Speaker 01:
Thank you.

[00:14:33] Speaker 02:
Good morning, Your Honors.

[00:14:33] Speaker 02:
May it please the Court?

[00:14:35] Speaker 02:
I'm James Grayson, to represent the appellees in this case.

[00:14:39] Speaker 02:
The New Mexico Supreme Court rejected the same takings argument that is being made by the appellants in this case because, quote, any title by interveners was already subject to the public's easement in public waters.

[00:14:55] Speaker 02:
Today, we merely clarify the scope of that easement by making explicit what was already implicit in Red River.

[00:15:02] Speaker 02:
The fundamental flaw in the plaintiff's claim in this case is that there is no underlying federal right that is being asserted.

[00:15:11] Speaker 02:
In New Mexico, the public owns the water, and there is not and there has never been a right to exclude the public from enjoying recreation and fishing on those waters.

[00:15:25] Speaker 03:
So in Adobe is what the court's talking about, incidental use of say the banks or touching the bottom.

[00:15:37] Speaker 03:
You don't take the position that people can just

[00:15:40] Speaker 03:
walk over private property to get to these waters, do you?

[00:15:45] Speaker 02:
No, Your Honor.

[00:15:46] Speaker 02:
And in fact, the New Mexico Supreme Court was very clear that that cannot be done.

[00:15:50] Speaker 02:
The New Mexico Supreme Court was clear about that in Red River as well.

[00:15:53] Speaker 02:
That was the trespassing that the New Mexico Supreme Court mentioned in 1945.

[00:15:58] Speaker 02:
It was crossing private property to get to the water.

[00:16:01] Speaker 02:
And in Red River, the court was talking about a lake, and the lake could be accessed by other means.

[00:16:07] Speaker 02:
People didn't have to go through the plaintiff's property in that case in order to access the lake.

[00:16:16] Speaker 02:
There was a separate dock.

[00:16:18] Speaker 02:
And that also explains why the court didn't address the beds in the banks.

[00:16:23] Speaker 02:
That was not an issue in that case because it was a lake and it was accessed by boats and the fishing was done by boat.

[00:16:30] Speaker 02:
What the New Mexico Supreme Court determined is essentially it's not a very large leap to say that an easement must provide access in order to use the land for the purpose of the easement.

[00:16:45] Speaker 02:
And here the easement, the purpose of the easement is recreation and fishing.

[00:16:49] Speaker 02:
And so the New Mexico Supreme Court went no further than to say the public has to have access to the water in order to have recreation and fishing.

[00:16:56] Speaker 00:
Meaning you can stand waist deep with your waders

[00:16:59] Speaker 02:
That's correct, Your Honor.

[00:17:02] Speaker 02:
And the court said that has to be only used as reasonably necessary and was very careful to implement a balance between private property rights and trespass and the public's right to water.

[00:17:18] Speaker 03:
What do we do with the fact that it seems like

[00:17:26] Speaker 03:
Whatever Red River, whatever Adobe says Red River meant, it looks like that agencies in the state may have interpreted it more broadly than the Supreme Court now says it intended.

[00:17:41] Speaker 03:
What do we do with the fact of there were regulations in place, that there were signs that were approved, and all of that in terms of the property owner's interest in the land?

[00:17:56] Speaker 02:
Yes, Your Honor, I think that's a very important question.

[00:17:58] Speaker 02:
And I think the Supreme Court, New Mexico Supreme Court, did address that in Adobe Whitewater, both in saying that the administrative regulations were ultra-various and unconstitutional under the New Mexico Constitution, and in saying that they're holding in Red River

[00:18:12] Speaker 02:
And there was an extensive analysis of the holding in Red River and the discussion of dissents in the Colorado case that was relied upon by the New Mexico Supreme Court in 1945 in order to reach the conclusion that it was implicit in that holding in Red River that the public could access the banks and the beds to the extent reasonably necessary.

[00:18:33] Speaker 02:
So that was always the law in New Mexico.

[00:18:35] Speaker 02:
It was misinterpreted by

[00:18:37] Speaker 02:
the administrative agency in a manner that was ultra-various because the New Mexico Supreme Court also said that the statute that was passed in 2015 was interpreted in a constitutional manner to mean someone could not cross land and then wade and walk in the water.

[00:18:54] Speaker 02:
They had to walk or wade from a public access point.

[00:18:58] Speaker 02:
And that is the trespassory right that landowners retain.

[00:19:02] Speaker 04:
Counsel, you began your presentation by saying that they're invoking the right that they never had.

[00:19:08] Speaker 04:
But why isn't that a merits question?

[00:19:11] Speaker 02:
Your Honor, I think it's both a merits question and a standing question because they have to plausibly allege a right in order to establish standing.

[00:19:19] Speaker 02:
And they haven't done so in this case.

[00:19:21] Speaker 02:
So whether the court decides that as a matter of standing or whether it decides that as a matter of 12b6, it's the same.

[00:19:28] Speaker 04:
Well, but the argument, as I understand it, is that even though Adobe Whitewater may say that they have no right to exclude this public easement access, but we don't just look to state law under Tyler versus Hennepin County.

[00:19:43] Speaker 04:
And in fact, historical practice, federal court precedents also inform this decision as well.

[00:19:54] Speaker 04:
I read your response to obviously and rightfully rely heavily upon Adobe Whitewater.

[00:19:59] Speaker 04:
What about other sources of law that a district court may look at to give rise to a property right that could be subject to a takings claim?

[00:20:09] Speaker 02:
That's the problem, Your Honor, with the assertion here that state law is not the only source of a property right under the Takings Clause, is because they've identified no other source.

[00:20:21] Speaker 02:
They haven't identified riparian water rights.

[00:20:23] Speaker 02:
They haven't identified federal property rights.

[00:20:25] Speaker 02:
Those were both dealt with in Red River and rejected.

[00:20:29] Speaker 02:
There is only a state water right.

[00:20:32] Speaker 02:
And what they're claiming is that the New Mexico Supreme Court misinterpreted that state water right.

[00:20:38] Speaker 02:
And so this is the problem that the Seventh Circuit confronted in the Pavlok case as well, because the Indiana Supreme Court in that case had said, since 1816, the land has been the state's up to the high watermark of Lake Michigan.

[00:20:53] Speaker 02:
And it was a retroactive assessment of state law.

[00:20:58] Speaker 02:
And the Seventh Circuit said, there's no way for us to grant relief without saying that the Supreme Court was wrong on a matter of state law.

[00:21:06] Speaker 03:
In that case, the Seventh Circuit decided on the standing, didn't they?

[00:21:11] Speaker 02:
They did, Your Honor.

[00:21:12] Speaker 02:
They did.

[00:21:14] Speaker 03:
But it's very different, because in that case, the only injury they argued was the loss of these inches of property.

[00:21:26] Speaker 03:
Here, the injury that's asserted is the fear of prosecution.

[00:21:34] Speaker 03:
It seems to me they clearly have stated an injury for standing purposes.

[00:21:40] Speaker 03:
You may have a good merits question, so I guess I'm following on on Judge Federico's argument.

[00:21:45] Speaker 03:
But with regard to injury for purposes of standing, isn't it true that if you have a realistic risk of being prosecuted for violating the law, that you've got standing?

[00:22:01] Speaker 02:
Your Honor, the realistic prospect of prosecution or enforcement relates to the right.

[00:22:08] Speaker 02:
So the right underlies that.

[00:22:09] Speaker 02:
It has to be a plausible allegation of a right.

[00:22:13] Speaker 02:
And that's why the Seventh Circuit said, non-enforcement will not change the content of the underlying law itself.

[00:22:20] Speaker 03:
So non-enforcement... In the Seventh Circuit case, there was no risk of enforcement that was argued as the

[00:22:29] Speaker 03:
injury for purposes of standing.

[00:22:31] Speaker 03:
The only injury, they argued, for purposes of standing was the loss of that length.

[00:22:39] Speaker 03:
Right?

[00:22:40] Speaker 03:
And Your Honor, I... Here, we have made a separate injury.

[00:22:44] Speaker 03:
I guess, I think they have standing, and I think it's a mass question.

[00:22:51] Speaker 02:
And your honor, like I said a few minutes ago, I think the court could decide this under 12b6 because there are no facts alleged that would support a state source of the property right in this case.

[00:23:03] Speaker 02:
They've relied on administrative regulations, but the Game Commission and the Department of Game and Fish do not decide property rights.

[00:23:09] Speaker 02:
They have no authority to declare that these individuals own or have the right to exclude property owners from their property.

[00:23:17] Speaker 02:
So it's not a reasonable expectation on

[00:23:19] Speaker 02:
the property owner's part.

[00:23:21] Speaker 02:
This was not a matter that had been judicially decided until 2022.

[00:23:25] Speaker 02:
And at that point, the New Mexico Supreme Court decided as a matter of state law that that had always been the law in the state.

[00:23:32] Speaker 02:
And there's simply no grounds in the complaint to go behind that assessment, whether it's through history, whether it's through traditional property law.

[00:23:40] Speaker 02:
And in fact, the New Mexico Supreme Court's holding

[00:23:43] Speaker 02:
is actually a proper application of a principle articulated in Cedar Point itself.

[00:23:49] Speaker 02:
In Cedar Point, Chief Justice Roberts said, many government authorized physical invasions will not amount to takings because they are consistent with long-standing background restrictions on property rights.

[00:24:02] Speaker 02:
The government does not take a property interest when it merely asserts a pre-existing limitation upon a landowner's right.

[00:24:10] Speaker 02:
And that's exactly what happened here.

[00:24:12] Speaker 02:
Now, this is not the Ipsodixit that is alleged from Tyler or from Webb's Famous Pharmacies.

[00:24:20] Speaker 02:
In both of those cases, there was private property recognized by the state, and there was the state then changing the law to say that the property would be treated as public for a particular reason.

[00:24:33] Speaker 02:
In Webb's famous pharmacies, it was because the money was held by the court until it was dispersed, and it was considered public money during that time.

[00:24:45] Speaker 02:
In Tyler, it was because a law was passed saying that arrears in property tax could allow the state to take the property even in excess of those taxes.

[00:24:56] Speaker 02:
In both of those situations, there was an existing property right

[00:25:00] Speaker 02:
that was changed.

[00:25:01] Speaker 02:
And in both of those cases, the Supreme Court said there was an appropriation by the state.

[00:25:07] Speaker 02:
Here there was no appropriation because there was never a right that existed.

[00:25:13] Speaker 02:
And an appropriation is what is necessary to allege a takings.

[00:25:18] Speaker 04:
Council, can I pivot to the sovereign immunity part of this case?

[00:25:23] Speaker 04:
You, in your response brief, as I recall, relied upon Williams, a case that talked about sovereign immunity's application in a takings case.

[00:25:34] Speaker 04:
But does that case speak at all to the exceptions to sovereign immunity, like the one invoked here?

[00:25:40] Speaker 02:
Your Honor, reading Williams, it does appear to be a damages case.

[00:25:45] Speaker 02:
It's unclear how Williams applies to an ex parte Young situation.

[00:25:52] Speaker 02:
There was a 28-J letter that was submitted with an unpublished opinion from this court, Teva Pharmaceuticals, that seems to indicate that Williams does not apply to ex parte Young.

[00:26:05] Speaker 02:
I think that's a complicated question.

[00:26:07] Speaker 02:
And I think that's not something that's been substantially developed in the law at this point, based on the change in the law effected by the Supreme Court.

[00:26:17] Speaker 02:
And so I think there are easier paths in this case toward affirmance.

[00:26:22] Speaker 02:
And essentially, that's what the Seventh Circuit said in padlock as well, is that there are complicated questions with sovereign immunity, especially with court of lane.

[00:26:34] Speaker 02:
The appellants here have suggested that Coeur d'Alene is only about cases with two sovereigns.

[00:26:39] Speaker 02:
Reading Coeur d'Alene, it never says that.

[00:26:42] Speaker 02:
The only place it talks about two sovereigns is to say that

[00:26:45] Speaker 02:
that the court had rejected the notion that the 11th Amendment did not apply to suits between two sovereigns.

[00:26:54] Speaker 03:
So it's not a two.

[00:26:55] Speaker 03:
Well, the court of litmus is quite different.

[00:26:59] Speaker 03:
It essentially would divest the state of any ownership over the land at all and any right to regulate it, right?

[00:27:09] Speaker 02:
Your Honor, that's correct.

[00:27:10] Speaker 02:
It is an ownership case.

[00:27:12] Speaker 02:
In this case, however, what we're talking about is public water.

[00:27:16] Speaker 02:
And there is a sovereign interest by the state of New Mexico in public water.

[00:27:21] Speaker 02:
It is held in public trust.

[00:27:23] Speaker 02:
And that is something that was discussed in Coeur d'Alene.

[00:27:25] Speaker 02:
And in fact, Coeur d'Alene was about one lake in Idaho.

[00:27:29] Speaker 02:
This case is about all of the streams in New Mexico.

[00:27:33] Speaker 02:
All of the streams in New Mexico are public and is the state's sovereign interest to act in the public trust to protect the public's access to that water for recreation and for fishing.

[00:27:47] Speaker 02:
So this is, your honor, one of those special circumstances that does fit that Coeur d'Alene mold.

[00:27:53] Speaker 02:
But like I said, as in Pavlok, the court has easier paths.

[00:27:58] Speaker 02:
and standing is one of those paths.

[00:28:01] Speaker 04:
You mentioned the easier path.

[00:28:03] Speaker 04:
From the state's perspective, what's the easiest path this court could take to affirmance?

[00:28:08] Speaker 02:
Your Honor, I think it's actually

[00:28:12] Speaker 02:
any component of standing.

[00:28:14] Speaker 02:
I think all components of standing require the fundamental prerequisite of a plausible assertion of a right.

[00:28:22] Speaker 02:
And if that doesn't exist, there's no injury in fact, there's no causation, there's no adjustability for the reasons we discussed in the brief.

[00:28:30] Speaker 02:
I did want to say on the too sovereign point for Coeur d'Alene,

[00:28:34] Speaker 02:
that the appellants relied on Stewart.

[00:28:37] Speaker 02:
And I wanted to clarify how the Supreme Court characterized Coeur d'Alene and Stewart.

[00:28:43] Speaker 02:
Because what the appellants say is that the quiet title language from Coeur d'Alene is dicta.

[00:28:50] Speaker 02:
But in Stewart, the court said that we determined that the suit was the functional equivalent of a quiet title suit against Idaho, and it would extinguish the state's control over a vast reach of lands and waters long deemed by the state to be an integral part of its territory.

[00:29:08] Speaker 02:
Your Honors, the streams in New Mexico are an integral part of the state's sovereignty, and the state asks this court to affirm.

[00:29:20] Speaker 01:
Thank you, Council.

[00:29:23] Speaker 01:
Thank you, Your Honors.

[00:29:24] Speaker 01:
I only have 42 seconds.

[00:29:25] Speaker 01:
I just want to make one quick point about Red River Valley and just in general about Tyler and sources of state law.

[00:29:34] Speaker 01:
There are many different sources of state law, and Red River Valley was merely one of them.

[00:29:38] Speaker 01:
But Red River Valley was clear that it interpreted the public water clause to allow fishing in the public water, which the public water has always been public,

[00:29:47] Speaker 01:
But it also clarified that no person has the right to approach public water through private property or to fish in public water while on private property, which would be the stream beds here, without consent of the owner.

[00:30:03] Speaker 01:
That's exactly where the executive and legislative got their positions from.

[00:30:08] Speaker 01:
It didn't come out of nowhere.

[00:30:09] Speaker 01:
Thank you, Your Honors.

[00:30:10] Speaker 00:
I ask the court to reverse.

[00:30:12] Speaker 00:
Thank you, counsel, for your helpful and excellent arguments.

[00:30:15] Speaker 00:
The court, you were excused and the case submitted.