Sanchez v. Torrez

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 21, 2026
• Docket: 25-2009
• Status: Published

Opinion

Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS April 21, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

LUCIA F. SANCHEZ; MICHAEL F. SANCHEZ, JR.; ERIK BRIONES; RICHARD JENKINS; ROLAND RIVERA,

Plaintiffs - Appellants,

v. No. 25-2009

RAÚL TORREZ, in his official capacity as Attorney General of New Mexico; RICHARD STUMP, in his official capacity as Chair of the New Mexico State Game Commission; SHARON SALAZAR HICKEY, in her official capacity as Vice- Chair of the New Mexico State Game Commission; TIRZIO LOPEZ, in his official capacity as a member of the New Mexico State Game Commission; GREGG FULFER, in his official capacity as a member of the New Mexico State Game Commission; DR. SABRINA PACK, in her official capacity as a member of the New Mexico State Game Commission; EDWARD GARCIA, in his official capacity as a member of the New Mexico State Game Commission; FERNANDO CLEMENTE, JR., in his official capacity as a member of the New Mexico State Game Commission; MICHAEL SLOANE, in his official capacity as Director of the New Mexico Department of Game & Fish,

Defendants - Appellees. _________________________________ Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 2

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:24-CV-00646-KWR-LF) _________________________________

Christopher M. Kieser, Pacific Legal Foundation, Sacramento, California (Jeremy Talcott, Pacific Legal Foundation, Sacramento, California; and Mark L. Ish, Felker, Ish, Ritchie, Geer & Winter, P.A., Santa Fe, New Mexico, with him on the briefs), for Plaintiffs-Appellants.

James W. Grayson, Chief Deputy Attorney General, New Mexico Department of Justice, Santa Fe, New Mexico (Raúl Torrez, New Mexico Attorney General; and Mark T. Baker, Matthew E. Jackson, and Abigail L. Pace, Peifer, Hanson, Mullins & Baker, P.A., Albuquerque, New Mexico, with him on the brief), for Defendants-Appellees. _________________________________

Before PHILLIPS, McHUGH, and FEDERICO, Circuit Judges. _________________________________

McHUGH, Circuit Judge. _________________________________

The Plaintiffs-Appellants in this appeal are five New Mexico landowners: Lucia

F. Sanchez, Michael F. Sanchez Jr., Roland Rivera, Erik Briones, and Richard Jenkins

(collectively, “the Landowners”). The Landowners each hold title to non-navigable

streambeds of the Rio Tusas or Pecos River in New Mexico. The Landowners assert that

they once held the right to exclude members of the public from walking or wading in

their private streambeds but that the New Mexico Supreme Court changed established

property law and eliminated this right to exclude. Accordingly, the Landowners claim the

New Mexico Supreme Court’s decision amounted to a judicial taking of their right to

exclude without just compensation in violation of the Fifth Amendment.

The district court concluded the Landowners lacked standing and that their claims

were barred by sovereign immunity. It therefore dismissed their Complaint under Federal

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Rule of Civil Procedure 12(b)(1) based on a lack of subject matter jurisdiction. Although

we conclude the Landowners have standing and that sovereign immunity does not bar

their claims, establishing our jurisdiction to hear this matter, we affirm the dismissal of

the Landowners’ Complaint for failure to state a claim under Rule 12(b)(6).

I. BACKGROUND

A. Factual Background 1

In 1907, before New Mexico became a state, the territorial legislature enacted a

statute declaring that all “natural waters flowing in streams and watercourses . . . belong

to the public and are subject to appropriation for beneficial use.” N.M. Stat. Ann. § 72-1-

1 (1907). When New Mexico achieved statehood in 1912, this provision was incorporated

into the state constitution as Article XVI, Section 2. See State ex rel. State Game Comm’n

v. Red River Valley Co., 182 P.2d 421, 461 (N.M. 1945). That provision reads in full:

The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state. Priority of appropriation shall give the better right. N.M. Const. art. XVI, § 2. We refer to Article XVI, Section 2 as the public waters

provision.

In 1945, the New Mexico Supreme Court sought to interpret the public waters

provision of its constitution in State ex rel. State Game Commission v. Red River Valley

Co. Specifically, the court considered whether the public had a constitutional right to fish

Because this matter comes to us following a motion to dismiss, we rely on the 1

Complaint’s allegations for our account of the factual background. 3 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 4

and recreate in non-navigable waters found on privately owned land—there, a portion of

a reservoir. Red River Valley, 182 P.2d at 424–26. The court concluded that the public

waters provision was merely declaratory of the law as it had always existed under

Spanish-Mexican law and as it had continued after American acquisition. Id. at 427–29.

The waters were, and always had been, public. Id. at 434. Having found that all

“unappropriated waters from ‘every natural stream, perennial or torrential, within the

state of New Mexico’” were public, the court then concluded that, because the public’s

right to fish in and use public waters was well established, the public likewise had a right

to fish in the public, non-navigable waters that ran through private property. Id. at 430–31

(quoting N.M. Const. art. XVI, § 2). However, because the state owned a portion of the

reservoir through which land the public would access these waters, “[t]he question of

right of use, or trespass upon, the lands . . . bordering upon the lake area in question [was]

not involved” in the court’s decision. See id. at 426–27.

In the years following Red River Valley, the New Mexico Department of Game

and Fish (“the Department”) issued fishing proclamations informing the public that the

right to fish and recreate in public waters did not give individuals a right to trespass on

privately owned land. For example, in 1991 the Department issued a proclamation

containing a section entitled “Private Lands, Trespass, Stream Beds, Access” in which it

directed the public to “[o]btain permission before fishing on private lands” and warned

that the proclamation should not be construed as authorizing “entry into or onto any

privately owned property, including stream beds, without the landowner’s permission.”

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App. at 37. Later, in 1998, the Department issued a proclamation with an “Access for

Fishing” section containing similar language. App. at 48.

In 2015, the New Mexico state legislature passed a law congruent with the

Department’s prior understanding of the rights conferred by the public waters provision.

The law required individuals engaged in “hunting, fishing, trapping, camping, hiking,

sightseeing, the operation of watercraft or any other recreational use” to receive express

permission in writing from the person in control of private property if the individuals

wished to “walk or wade onto private property through non-navigable public water or

access public water via private property.” N.M. Stat. Ann. § 17-4-6(C) (2015).

In 2018, the New Mexico Game Commission (“the Commission”) issued

implementing regulations for this law, allowing landowners “to be issued a certificate and

signage by the director and the commission that recognizes that within the landowner’s

private property is a segment of a non-navigable public water, whose riverbed or

streambed or lakebed is closed to access without written permission from the landowner.”

N.M. Admin. Code § 19.31.22.6 (repealed 2022). Once the landowner was issued a

certificate, the landowner became eligible to receive signs from the Commission

informing the public that individuals were required to receive written permission before

walking or wading in non-navigable public waters on private property. Id.

§ 19.31.22.13(C)–(D). These signs would then act as “prima facie evidence that the

property subject to the sign is private property, subject to the laws, rules, and regulations

of trespass.” Id. § 19.31.22.13(F). One of the Landowners in this case, Mr. Briones,

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received such a certification along with Department-issued trespassing signs for his

property.

These implementing regulations, however, were soon challenged. And in 2022, the

New Mexico Supreme Court in Adobe Whitewater Club of New Mexico v. New Mexico

State Game Commission, 519 P.3d 46, 56 (N.M. 2022), invalidated the regulations as an

unconstitutional infringement on the public’s right to use public water. Looking to Red

River Valley, the court held that the public waters provision of the New Mexico

Constitution granted the public, in addition to a right to fish and recreate in public waters,

a right to touch the privately owned beds of public waters because “[w]alking and wading

on the privately owned beds beneath public water is reasonably necessary for the

enjoyment of many forms of fishing and recreation.” Id. at 49, 53. The court emphasized,

however, that the scope of the public’s right includes only uses reasonably necessary to

the utilization of the water itself. Id. at 56. And it noted that any use of the riverbeds and

banks for these purposes must have minimal impact. Id. Notwithstanding its extension of

the reasoning in Red River Valley, the court stressed that the public had no right to

“trespass on privately owned land to access public water, nor trespass on privately owned

land from public water.” Id. at 53.

Although the regulations were an unconstitutional limitation on the public’s right

to recreate in public waters, the court read N.M. Stat. Ann. § 17-4-6(C), the underlying

statute, to avoid the constitutional question. Id. at 56–57. The court found two possible

interpretations of the law: “(1) the public cannot walk or wade onto private property

(excluding the beds of public water) from public water” and cannot cross over private

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property to reach those waters or “(2) the public cannot walk or wade onto private

property (including the beds of public water) from public water” and cannot cross over

private property to reach those waters. Id. Finding that the latter interpretation would be

unconstitutional but that the former would raise no constitutional question, the court

adopted the former interpretation and thus did not invalidate the underlying law. Id.

The New Mexico Supreme Court then rejected arguments that its recognition of a

public right to access riverbeds and banks would be a taking of streambed owners’ right

to exclude, without compensation, in violation of the Fifth Amendment. Id. at 57. First, it

concluded that the New Mexico Constitution’s public waters provision and “the public’s

easement in public water stem from prior existing law recognized by the United States

government,” which was “only declaratory of prior existing law, always the rule and

practice under Spanish and Mexican dominion.” Id. (quoting Red River Valley, 182 P.2d

at 427). Accordingly, the waters were and always had been public. Id. And the

landowners’ ownership interest had always been subject to a preexisting easement held

by the public. Id. at 57–58. The court held that it had merely clarified the scope of that

easement and that nothing had been taken from the landowners. Id. at 58.

Following this decision, New Mexico officials took steps to enforce Adobe

Whitewater’s holding. The Commission repealed the regulations allowing streambeds to

be certified as private, 33 N.M. Reg. 485 (Mar. 22, 2022), and sent letters to owners of

previously certified streambeds informing them that their certificates were void. The

letters directed landowners to take down any signage referencing certification or

restricting public access to the water as well as directing them to remove barriers limiting

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access to public water on their property. New Mexico Attorney General Raúl Torrez has

also sought to enforce Adobe Whitewater—having brought a now-settled enforcement

action against Plaintiff Mr. Briones asserting his use of signs and fencing impermissibly

restricted access to the Pecos River. Plaintiff Mr. Jenkins has likewise received informal

threats of enforcement.

B. Procedural Background

The Landowners thereafter filed their Complaint against state officials responsible

for enforcing Adobe Whitewater’s holding: the New Mexico attorney general, the director

of the New Mexico Department of Game and Fish, and various members of the New

Mexico State Game Commission (collectively, “the New Mexico Officials”). The

Landowners claim that Adobe Whitewater’s holding and the New Mexico Officials’

enforcement of that holding amount to a taking of the Landowners’ property—that is,

their right to exclude—for public use without just compensation in violation of their Fifth

and Fourteenth Amendment rights as enforceable under 42 U.S.C. § 1983. The

Landowners requested an injunction barring the New Mexico Officials from taking any

action preventing them from exercising their right to exclude or from taking any action

penalizing the Landowners for exercising that right. They also sought a declaratory

judgment asserting that Adobe Whitewater’s holding declaring a public right to wade and

walk in the Landowners’ private streambeds amounts to an unconstitutional taking of

their right to exclude.

The New Mexico Officials filed a motion to dismiss, asserting that the

Landowners lacked standing to bring their claims and that the Landowners’ claims were

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barred by sovereign immunity under the Eleventh Amendment. In the motion, the New

Mexico Officials further argued that the court should abstain from deciding a matter of

New Mexico law, that the Landowners failed to state a claim for relief, and that

Mr. Briones’s claim was barred by the Rooker-Feldman doctrine, as set forth in Rooker v.

Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v.

Feldman, 460 U.S. 462 (1983), based on a consent decree that he entered in his state

enforcement action.

The district court granted the motion to dismiss, concluding that the Landowners

lacked standing and that sovereign immunity barred their claims. Although the district

court held that the Landowners had each alleged an injury in fact based on a credible

threat of prosecution, it found that the Landowners failed to meet the other elements of

standing under Article III of the U.S. Constitution: traceability and redressability. As to

redressability, the court concluded that the requested injunction preventing enforcement

of the decision in Adobe Whitewater would not remedy the Landowners’ injuries because

the New Mexico Constitution itself forbids the Landowners from excluding the public

from their streambeds, and the public would retain its right in the absence of state

enforcement. Furthermore, the district court determined that the Landowners’ injuries

were not traceable to the challenged state enforcement because an independent third

party—the New Mexico Supreme Court—was responsible for the Landowners’ loss of

With respect to the Eleventh Amendment, the district court held that sovereign

immunity precluded it from exercising jurisdiction. Although the court recognized that

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lawsuits for prospective injunctive relief under Ex parte Young, 209 U.S. 123 (1908), do

not offend sovereign immunity, it held that the Landowners’ claims were nonetheless

barred because their requested relief would have the effect of requiring the payment of

funds from New Mexico’s treasury. The court reasoned that the New Mexico Officials

would be constitutionally bound to enforce the public’s right to access these private

streambeds and would thereby be required to provide just compensation for the public

easement. Finally, the district court added that the Eleventh Amendment barred the

lawsuit based on the Landowners’ failure to exhaust state-law remedies.

Because the district court dismissed all claims on jurisdictional grounds, it did not

address whether the Landowners stated a claim for a Fifth Amendment taking. The

district court entered judgment dismissing all claims. This appeal followed.

II. DISCUSSION

We begin by addressing the jurisdictional arguments considered by the district

court as well as those raised by the parties on appeal. Because we conclude that none of

these jurisdictional grounds bar the Landowners’ claims, we then address whether the

Landowners’ Complaint states a claim for a Fifth Amendment taking.

A. Standing

The district court held that the Landowners had alleged a credible threat of

prosecution and an adequate injury in fact for purposes of standing. But because the

Landowners’ alleged loss of property rights was caused by the New Mexico Supreme

Court—not the New Mexico Officials—the district court held that the Landowners’

injury was not traceable to the New Mexico Officials in this case. Furthermore, the court

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concluded that the Landowners’ injury was not redressable by a favorable decision

because the public had other ways to enforce their public right to access the Landowners’

streambed in the absence of state enforcement.

While the court correctly identified a credible threat of enforcement as an injury in

fact, it mistakenly analyzed traceability and redressability with reference to a different

injury—the loss of the Landowners’ right to exclude. Although the alleged loss of

property rights was not caused by the New Mexico Officials, the threat of enforcement is.

And although the Landowners’ requested injunction would not return their lost property

right or prevent enforcement by the public, it would redress the threat of prosecution by

officials with special enforcement authority. Thus, partial redressability was available

and, as we explain, is sufficient for standing.

1. Standard of Review

Article III permits federal courts to decide only “Cases” or “Controversies.” U.S.

Const. art. III, § 2. To establish Article III standing to sue, a plaintiff must establish that

(1) “it has suffered an injury in fact”; (2) “the injury is fairly traceable to the challenged

action of the defendant”; and (3) “it is likely . . . that the injury will be redressed by a

favorable decision.” People for Ethical Treatment of Prop. Owners v. U.S. Fish &

Wildlife Serv., 852 F.3d 990, 996–97 (10th Cir. 2017) (quotation marks omitted). We

review a district court’s determination of standing de novo. Nova Health Sys. v. Gandy,

416 F.3d 1149, 1154 (10th Cir. 2005).

An injury in fact is “an invasion of a legally protected interest which is . . .

concrete and particularized and . . . actual or imminent, not ‘conjectural’ or

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‘hypothetical.’” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal citations

and quotation marks omitted). The mere presence of an unconstitutional law that inhibits

constitutionally protected conduct or interests is not an actual or imminent injury.

Winsness v. Yocom, 433 F.3d 727, 732 (10th Cir. 2006). However, a plaintiff need not wait

until a statute is enforced against him. Id. “[A] plaintiff satisfies the injury-in-fact

requirement where he alleges ‘an intention to engage in a course of conduct arguably

affected with a constitutional interest, but proscribed by [law], and there exists a credible

threat of prosecution thereunder.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159

(2014) (quoting Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979)). In other words, a

plaintiff’s protected activities “must be inhibited by an objectively justified fear of real

consequences, which can be satisfied by showing a credible threat of prosecution or other

consequences following from the [law’s] enforcement.” Winsness, 433 F.3d at 732

(internal quotation marks omitted).

To meet the traceability requirement, “there must be a causal connection between

the injury and the conduct complained of,” and the injury must not be “the result of the

independent action of some third party not before the court.” Lujan, 504 U.S. at 560

(quotation marks and brackets omitted) (quoting Simon v. E. Ky. Welfare Rights Org., 426

U.S. 26, 41–42 (1976)). Finally, redressability turns on the “connection between the

alleged injury and the judicial relief requested.” Allen v. Wright, 468 U.S. 737, 753 n.19

(1984). “[I]t must be likely, as opposed to merely speculative, that the injury will be

redressed by a favorable decision.” Lujan, 504 U.S. at 561 (internal quotation marks

omitted) (quoting Simon, 426 U.S. at 38, 43). Yet complete redressability of the plaintiff’s

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injuries is not required. A plaintiff need show only that a favorable decision would

redress “an injury,” not “every injury.” Larson v. Valente, 456 U.S. 228, 243 n.15 (1982)

(emphasis in original).

2. Analysis

a. Injury in fact

The district court determined that the Landowners had suffered an injury in fact

for purposes of standing. In particular, the court determined that, while not all the

Landowners had faced adverse action by the state, each faced a credible threat of

prosecution. Because the Landowners had pointed to actions in which the New Mexico

attorney general sought to enforce Adobe Whitewater “against similarly situated

landowners who do not permit public access to their streambeds,” the Landowners had

shown “a sufficiently credible threat of prosecution to justify prospective relief.” App.

at 178.

The New Mexico Officials argue that no such injury has been established because

Adobe Whitewater held that the Landowners never held their claimed property right.

Thus, they argue that the Landowners never lost a property right, and so they have not

suffered an injury.

Where, as here, the alleged injury is the threatened enforcement of a law, the

Supreme Court has held that a plaintiff satisfies the requirement to show an injury in fact

where he alleges “an intention to engage in a course of conduct arguably affected with a

constitutional interest, but proscribed by [law], and there exists a credible threat of

prosecution thereunder.” Babbitt, 442 U.S. at 298. While a history of prior prosecution

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may support a finding that the threat is credible, see Susan B. Anthony List, 573 U.S.

at 164, a showing of past enforcement is not required, see Babbitt, 442 U.S. at 302.

In a pre-enforcement lawsuit, drawing the line as to where a credible threat of

enforcement begins is often not a simple task. Compare Doctor John’s, Inc. v. City of

Roy, 465 F.3d 1150, 1154, 1156 (10th Cir. 2006) (concluding that an adult bookstore

faced a credible threat of prosecution under a city ordinance requiring licensing of

“sexually oriented businesses” when the city sent letter stating that bookstore must

complete an application for license or “appropriate legal action will be commenced”),

with Mink v. Suthers, 482 F.3d 1244, 1254–55 (10th Cir. 2007) (finding no credible threat

of prosecution when district attorney authored a “no file” letter disavowing any intent to

prosecute under challenged criminal-libel statute, even though the “no file” letter

“conceivably might not bind other district attorneys”). Still, showing a credible threat of

enforcement is not a high bar. We have noted that “[t]he threat of prosecution is generally

credible where the defendant ‘has not disavowed any intention of invoking’ the statute

against the plaintiff.” Rocky Mountain Gun Owners v. Polis, 121 F.4th 96, 110 (10th

Cir. 2024) (quoting Babbitt, 442 U.S. at 302).

In the case at bar, the Landowners allege that they “seek to assert the traditional

right New Mexicans have had to exclude trespassers from their privately-held

streambeds.” App. at 16. They contend they have put up signs warning the public that the

streambeds are private, put up “fences that block trespassers from wading down the river

from adjacent areas,” and verbally confronted trespassers. Id. at 25–26.

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Having taken these actions, the Landowners assert that they face a threat of future

prosecution because “[t]he New Mexico Attorney General, the New Mexico Game

Commission, and the Department of Game & Fish have taken action against property

owners who continue to exercise their right to exclude.” Id. at 15. These actions include

“suing Plaintiff Briones and, through a designated representative, issuing threats to

Plaintiff Jenkins for exercising their right to exclude the public from their private

streambeds.” Id. at 20. Indeed, Mr. Briones has already faced an enforcement action by

the New Mexico attorney general seeking to enjoin him from using barriers and threats to

prevent the public from accessing his streambeds. Accordingly, the Landowners state

they are fearful of future enforcement actions if they continue to assert their right to

exclude.

The Landowners have easily pleaded an intention to engage in a course of conduct

that is arguably proscribed by the New Mexico Constitution and Adobe Whitewater.

Further, they have shown that the threat of enforcement they face is credible if they

continue to exclude the public. Mr. Briones has already faced an enforcement action. And

while factual dissimilarity can lessen the likelihood of a credible threat, all Landowners

in this matter appear to be similarly situated to Mr. Briones. Cf. D.L.S. v. Utah, 374 F.3d

971, 973–75 (10th Cir. 2004) (finding no credible threat of enforcement of a sodomy

statute against an unmarried man who occasionally engaged in prohibited but consensual

conduct with an unmarried woman where the prosecutor assured the plaintiff he would

not be prosecuted for his conduct and the plaintiff pointed to only one instance of past

enforcement for dissimilar conduct involving a minor). Most importantly, the New

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Mexico Officials have not disavowed their intention to enforce the Adobe Whitewater

mandate against the Landowners.

The New Mexico Officials’ argument that the claimed right to exclude never

existed—while relevant to the merits of the Landowners’ taking claims—does not

undermine the Landowners’ alleged injury. “For purposes of standing, we must assume

the [Landowners’] claim[s] ha[ve] legal validity.” See Initiative & Referendum Inst. v.

Walker, 450 F.3d 1082, 1093 (10th Cir. 2006); see also Warth v. Seldin, 422 U.S. 490, 500

(1975) (noting that “standing in no way depends on the merits of the plaintiff’s

contention that particular conduct is illegal”). Furthermore, the Landowners face another

injury independent of their claimed property right. Regardless of the merits of their

lawsuit, there is no question that the Landowners face a credible threat of enforcement for

engaging in conduct arguably proscribed by the New Mexico Constitution. Accordingly,

the Landowners have alleged a cognizable injury for purposes of standing.

b. Traceability

Despite finding an injury, the district court held that the Landowners did not meet

the other requirements of standing. As to traceability, the court concluded that the

Landowners’ injury is not traceable to the challenged conduct of the New Mexico

Officials. Specifically, the district court noted that the Landowners “lost their right to

exclude the public from their private streambeds not because of any action taken by the

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[New Mexico Officials]” but instead because “the New Mexico Supreme Court—an

independent third party—decided that its constitution required it.” App. at 180.

The Landowners argue that traceability in a pre-enforcement action requires only

that the defendants have authority to enforce the complained-of law. They maintain that

the district court erred because traceability does not require the defendant to have caused

the law to go into effect. Rather, because the New Mexico Officials enforce Adobe

Whitewater’s holding through prosecutions, the Landowners contend their injury of

threatened prosecutions is caused by the New Mexico Officials.

To meet the traceability requirement, “there must be a causal connection between

the injury and the conduct complained of,” and the injury must not be “the result of the

independent action of some third party not before the court.” Lujan, 504 U.S. at 560

(internal quotation marks and brackets omitted) (quoting Simon, 426 U.S. at 41–42). “It is

well-established that when a plaintiff brings a pre-enforcement challenge to the

constitutionality of a particular [law], the causation element of standing requires the

named defendants to possess authority to enforce the complained-of [law].” Bronson v.

Swensen, 500 F.3d 1099, 1110 (10th Cir. 2007).

In conducting its traceability analysis, the district court relied on the Seventh

Circuit case Pavlock v. Holcomb, 35 F.4th 581 (7th Cir. 2022). The Pavlock court

considered claims by landowners asserting that the Indiana Supreme Court, in holding

that the landowners’ title extended only to the high-water mark of Lake Michigan rather

than the low-water mark, had taken their property without just compensation. 35 F.4th at

583. Without addressing the merits of the plaintiffs’ claims, the Seventh Circuit held that

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the plaintiffs lacked standing to bring their claims. Id. As to traceability, the court stated

that the plaintiffs’ claimed injury of the loss of property between the high- and low-water

marks was not caused by the named state defendants. Id. at 590. Rather, the plaintiffs’

claimed property was “held in public trust because the Indiana Supreme Court, an

independent actor, settled the . . . dispute as a matter of state law.” Id.

The Pavlock court noted the plaintiffs’ traceability problem could not be avoided

by suing the executive officials entrusted with enforcing the law. “[T]he state’s

enforcement or non-enforcement ha[d] no effect on the underlying title to the land.” Id.

And the court emphasized that, aside from the loss of their property right, the complaint

had not alleged that the Indiana Supreme Court’s decision “ha[d] caused any further

injury that they have not already experienced as a result of the decision itself.” Id.

Notwithstanding the district court’s reliance on Pavlock, the claimed injury in that

case was materially different than the injuries in the case at hand. In Pavlock, the

plaintiffs alleged no injury other than the loss of property itself and did not point to any

specific enforcement action creating a separate injury. The causation problem in Pavlock

resulted, not only because the executive defendants did not cause the loss of property

rights, but also because they did not cause any other injury. Here, however, the

Landowners allege more than a lost property right. Indeed, the principal injury alleged is

the threat of a future enforcement action if the Landowners continue their efforts to

exclude the public.

The district court correctly identified this threat of prosecution as an adequate

injury in fact. Yet its traceability analysis relied instead on the loss of the right to exclude

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as the relevant injury. Courts must analyze traceability with reference to the plaintiff’s

injury in fact. See Lujan, 504 U.S. at 560. While the loss of the Landowners’ right to

exclude may have been caused by the New Mexico Supreme Court as an independent

third party not before the court, no such traceability problem exists with respect to the

threat of enforcement. There is no question that the New Mexico Officials have authority

to enforce Adobe Whitewater by bringing actions against violating landowners. The

Landowners’ injury of threatened prosecution is therefore fairly traceable to the New

Mexico Officials. See Bronson, 500 F.3d at 1110 (“[W]hen a plaintiff brings a pre-

enforcement challenge to the constitutionality of a particular [law], the causation element

of standing requires the named defendants to possess authority to enforce the

complained-of [law].”).

c. Redressability

Turning to redressability, the district court concluded that the Landowners’ injury

would not be redressed by a favorable decision enjoining state officials from enforcing

the decision in Adobe Whitewater. Because the New Mexico Constitution itself forbids

landowners from excluding the public from their streambeds, the district court reasoned

that the public would still have a right to access those streambeds, and the Landowners

would be without a legal remedy to restrict access. Even if the state officials ceased

enforcement of the Adobe Whitewater directive, the court noted that “the public has other

ways to preserve its constitutional right to recreate in public waters (for example, by

court order or going to the local sheriff).” App. at 179. In sum, the court concluded that

“[a]bsent constitutional amendment or the New Mexico Supreme Court reversing its

19 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 20

position, landowners remain powerless to remove members of the public from their

streambeds with or without executive enforcement, and therefore, their injury will

remain.” Id. at 180.

The Landowners argue that, because their claimed injury is one of enforcement by

the New Mexico Officials and not an injury caused by trespassers, their injury would be

redressed by the requested injunction. Furthermore, they contend that an injury need only

be partially redressable to qualify for Article III standing.

Redressability turns on the “connection between the alleged injury and the judicial

relief requested.” Allen, 468 U.S. at 753 n.19. “[I]t must be likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.” Lujan, 504 U.S.

at 561 (internal quotation marks omitted). However, the Supreme Court has rejected

interpretations of the rule that demand complete redressability, stressing that a plaintiff

need show only that a favorable decision would redress “an injury,” not “every injury.”

Larson, 456 U.S. at 243 n. 15 (emphasis in original). Nor must any one injury be

completely redressable so long as a favorable decision would “alleviate the injury to

some extent.” See Consumer Data Indus. Ass’n v. King, 678 F.3d 898, 903 (10th

Cir. 2012); see also Massachusetts v. EPA, 549 U.S. 497, 526 (2007).

Here again, the district court mistakenly analyzed redressability of the

Landowners’ lost right to exclude rather than the threat of prosecution. While an

injunction preventing the New Mexico Officials from enforcing Adobe Whitewater may

not return the Landowners’ right to exclude, it would redress the risk of state prosecution.

Thus, it would redress “an injury.” Larson, 456 U.S. at 243 n.15.

20 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 21

Furthermore, in noting that the public could also enforce its right to access the

Landowners’ streambeds, the district court appears to have reasoned that a threat of

enforcement must be completely redressable by a favorable decision. But we have never

required that an injury be completely redressable. See Consumer Data Indus. Ass’n, 678

F.3d at 903. And, where the named defendants have special authority to enforce the

challenged law, we have rejected arguments that shared enforcement authority with the

public defeats redressability. See id. at 905–06 (holding that shared enforcement authority

with private litigants would not defeat redressability where a pre-enforcement lawsuit is

brought against officials with special enforcement authority, such as the attorney

general); cf. Nova Health Sys., 416 F.3d at 1157 (holding that an injury was not

redressable in a lawsuit against administrators of public health institutions where those

administrators had no greater authority to enforce the law than other private litigants).

The New Mexico Officials in this case include individuals with special authority

to enforce Adobe Whitewater, such as the New Mexico attorney general. The fact that

private litigants may also have a right to individually enforce their rights does not

undermine the special threat of enforcement posed by the New Mexico Officials, which is

redressable by a favorable decision. Because the Landowners have demonstrated an

injury, traceability, and redressability, they possess standing to bring their claims.

B. Sovereign Immunity

The district court held that the Landowners’ claims were barred by Eleventh

Amendment sovereign immunity because their claims cannot be properly characterized as

prospective falling within the Ex parte Young exception. Specifically, the court assumed

21 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 22

that a favorable ruling would require the New Mexico Officials to pay compensation out

of an obligation to enforce the public waters provision. The district court also held that

the Eleventh Amendment barred the Landowners’ claims for the additional reason that

they failed to exhaust state-law remedies. Lastly, while not addressed by the district court,

the New Mexico Officials ask us to alternatively hold that the Landowners’ claims are

barred as the equivalent of a quiet title action under Idaho v. Coeur d’Alene Tribe of

Idaho, 521 U.S. 261 (1997).

We disagree with the reasoning of the district court and reject the New Mexico

Officials’ argument that Coeur d’Alene bars the Landowners’ claims. The Landowners

seek only an injunction on future enforcement, which is not the functional equivalent of

damages for past deprivations of their right to exclude. Thus, their relief requested is

properly characterized as prospective and falls within the Ex parte Young exception.

Furthermore, if the Landowners were to succeed on the merits of their claims, we are

unpersuaded that the New Mexico Officials would be obligated to pay compensation as

opposed to merely ceasing enforcement of Adobe Whitewater.

Because the Supreme Court has overruled its prior exhaustion requirement, the

Landowners’ claims were not barred for failure to exhaust state remedies. And although

the Eleventh Amendment bars claims for damages in federal court where there is an

adequate state-law remedy, we decline to extend such a requirement to claims for

injunctive relief within the Ex parte Young exception. Finally, we reject the New Mexico

Officials’ argument that this case is the functional equivalent of a quiet title action barred

by Coeur d’Alene.

22 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 23

The Eleventh Amendment states, “The Judicial power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted against

one of the United States by Citizens of another State, or by Citizens or Subjects of any

Foreign State.” U.S. Const. amend. XI. The Eleventh Amendment has been read broadly

to bar “suits against a state in federal court commenced by citizens of that state or citizens

of another state.” Elephant Butte Irrigation Dist. of N.M. v. Dep’t of Interior, 160 F.3d

602, 607 (10th Cir. 1998). Thus, the amendment stands for “the privilege of the sovereign

not to be sued without its consent.” See Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S.

247, 253 (2011). This privilege extends to arms of the state and state officials who are

sued for damages in their official capacity. See Peterson v. Martinez, 707 F.3d 1197, 1205

(10th Cir. 2013). Once asserted, sovereign immunity acts as “a jurisdictional bar that

precludes unconsented suits in federal court against a state and arms of the state.” Id.

That said, “Eleventh Amendment immunity ‘is not absolute.’” Hendrickson v.

AFSCME Council 18, 992 F.3d 950, 965 (10th Cir. 2021) (quoting Port Auth. Trans-

Hudson Corp. v. Feeney, 495 U.S. 299, 304 (1990)). An exception to sovereign immunity

recognized in Ex parte Young “allows certain private parties to seek judicial orders in

federal court preventing state executive officials from enforcing state laws that are

contrary to federal law.” Whole Woman’s Health v. Jackson, 595 U.S. 30, 39 (2021)

(citing Ex parte Young, 209 U.S. at 159–60). “In determining whether the doctrine of Ex

parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a

straightforward inquiry into whether the complaint alleges an ongoing violation of federal

23 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 24

law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub.

Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (citation, brackets, and internal quotation

marks omitted).

a. Prospective relief

The district court ruled that the Ex parte Young exception to sovereign immunity

could not apply because the requested injunction “effectively (and impermissibly)

requires the payment of funds from the State’s treasury.” App. at 182. Because state

officials take an oath to support the state constitution, the district court reasoned that the

New Mexico Officials would “have no choice but to continue enforcing the public’s

constitutional right to recreate in public waters.” Id. If this enforcement amounted to a

taking as alleged, the district court concluded that the New Mexico Officials would be

required to pay the Landowners compensation using funds from the state treasury. Only

through this compensation could the New Mexico Officials continue to enforce the public

waters provision consistently with the U.S. Constitution.

In Edelman v. Jordan, 415 U.S. 651 (1974), the Supreme Court acknowledged a

class of cases that do not fall within the Ex parte Young exception. Actions for injunctive

relief against a state official may nonetheless be barred by sovereign immunity “[w]hen

the action is in essence one for the recovery of money from the state.” Id. at 663 (quoting

Ford Motor Co. v. Dep’t of Treasury, 323 U.S. 459, 464 (1945)). The Court called for a

practical consideration of whether the relief requested looked more like one for damages

for past conduct or truly prospective relief. Where the relief requested is “measured in

24 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 25

terms of a monetary loss resulting from a past breach of a legal duty on the part of the

defendant state officials” and the result of the injunction is “in practical effect

indistinguishable . . . from an award of damages against the State,” the Eleventh

Amendment will bar the lawsuit. Id. 668–69.

A claim was therefore barred where the plaintiffs sought an injunction requiring

the state to pay retroactive monetary reimbursement of withheld assistance benefits. See

id. at 655–56, 665. However, the Court made clear that fiscal consequences to the state

from future compliance with a judicial decree are insufficient to bar the claim. See id.

at 667–68. So long as the fiscal consequences are the necessary result of prospective

compliance with the law, rather than a means to achieve “reparation for the past,” the

doctrine of Ex parte Young would apply. See id. at 665, 667–68. “Such an ancillary effect

on the state treasury is a permissible and often an inevitable consequence of the principle

announced in Ex parte Young . . . .” Id. at 668.

As a threshold matter, the Landowners’ requested injunction does not effectively

seek compensation for a past wrong such that it falls within the reasoning of Edelman.

The Landowners do not seek compensation for past deprivations of their right to exclude.

Rather, the Landowners request a prospective injunction against future deprivations of

their right to exclude without compensation. Thus, the Landowners’ claims fall within the

Ex parte Young exception to sovereign immunity by “alleg[ing] an ongoing violation of

federal law and seek[ing] relief properly characterized as prospective.” See Verizon Md.,

Inc., 535 U.S. at 645 (internal citation omitted).

25 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 26

Furthermore, we are not persuaded that the duty to uphold the New Mexico

Constitution would require the New Mexico Officials to pay compensation if Adobe

Whitewater were declared an unconstitutional taking. Instead, the New Mexico

government would have the choice of providing just compensation or abandoning efforts

to enforce Adobe Whitewater’s holding. Unless and until the state government decided to

provide compensation, the New Mexico Officials would not only have no obligation to

enforce Adobe Whitewater, but they would have no authority to do so.

“A property owner has an actionable Fifth Amendment takings claim when the

government takes his property without paying for it.” Knick v. Twp. of Scott, 588 U.S.

180, 185 (2019). “A later payment of compensation may remedy the constitutional

violation that occurred at the time of the taking, but that does not mean the violation

never took place.” Id. at 193. Because Adobe Whitewater does not provide for

compensation to the Landowners, a determination that the decision took the Landowners’

property would render Adobe Whitewater’s holding unconstitutional.

Yet if the Adobe Whitewater holding were unconstitutional, the New Mexico

Officials would have no obligation or authority to enforce it. Indeed, the lack of authority

to enforce state laws that come into conflict with federal law is the foundational principle

behind Ex parte Young. There, the Supreme Court held that a lawsuit seeking an

injunction against future or ongoing violations of federal law was not really a lawsuit

against the state because, when an official acts contrary to federal law, he acts outside of

his state authority. See Ex parte Young, 209 U.S. at 159–60 (“If the act which the state

attorney general seeks to enforce be a violation of the Federal Constitution, the officer, in

26 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 27

proceeding under such enactment, comes into conflict with the superior authority of that

Constitution, and he is in that case stripped of his official or representative character and

is subjected in his person to the consequences of his individual conduct.”).

Therefore, the practical effect of granting the Landowners’ requested injunction

would be to halt enforcement of Adobe Whitewater’s holding. New Mexico could then

decide whether to provide compensation and apply the law constitutionally or to simply

abandon its enforcement efforts. Because the Landowners allege a violation of federal

law and their requested relief is properly characterized as prospective, Edelman does not

bar their claims.

b. State-law remedies

The district court separately held that the Eleventh Amendment bars the

Landowners’ claims because they failed to exhaust state remedies, and “New Mexico

courts provide ample takings remedies.” App. at 186 & n.4. As outlined in Williamson

County Regional Planning Commission v. Hamilton Bank of Johnson City, 473 U.S. 172,

194–95 (1985), the Supreme Court once required exhaustion of state-law remedies before

bringing a taking claim, reasoning that no unconstitutional taking had occurred until state

remedies had been exhausted and the state had denied compensation. The Court,

however, overruled the exhaustion requirement in Knick v. Township of Scott, holding that

a Takings Clause violation occurs the moment property is taken without compensation.

588 U.S. at 190.

While the district court acknowledged that Williamson County had been overruled

in part by Knick, it nonetheless cited Williamson County as if the state exhaustion

27 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 28

requirement were still in effect. And it faulted the Landowners for not first bringing their

claim in state court. Accordingly, the district court erred when it determined that

Williamson County barred the Landowners’ claims because of their failure to exhaust

state-law remedies.

The New Mexico Officials acknowledge that Knick overruled the Supreme Court’s

prior exhaustion requirement. However, they maintain that Knick had no impact on

sovereign immunity’s separate ban on asserting taking claims against a state in federal

court where the state provides a remedy. They therefore argue that sovereign immunity

bars this lawsuit because New Mexico offers adequate state-law remedies.

We have held that sovereign immunity bars a taking claim against a state unless

there is no adequate remedy in state court. Williams v. Utah Dep’t of Corr., 928 F.3d

1209, 1213–14 (10th Cir. 2019). Because Knick involved a lawsuit against a municipality,

the Eleventh Amendment was not implicated. See Couser v. Gay, 959 F.3d 1018, 1023

(10th Cir. 2020) (noting that Eleventh Amendment immunity does not extend to

municipalities). And we held in Williams v. Utah Department of Corrections that Knick

had no impact on this separate sovereign immunity bar. However, the principal request

for relief that we analyzed in Williams was for damages. 928 F.3d at 1211. There, we

found that the plaintiff had failed to state a claim for prospective relief falling within the

Ex parte Young exception. Id. at 1214–15.

The New Mexico Officials argue that this sovereign immunity bar to taking claims

also applies to lawsuits brought under Ex parte Young where there is an adequate remedy

under state law. In support of their argument, the New Mexico Officials cite language

28 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 29

from Knick assuring states that federal courts will not enjoin their activities so long as

state law provides a means of obtaining compensation. After overruling the exhaustion

requirement, the Supreme Court in Knick reassured governments that their actions would

not be invalidated every time they failed to provide compensation in advance of a taking.

Knick, 588 U.S. at 185. “So long as the property owner has some way to obtain

compensation after the fact, governments need not fear that courts will enjoin their

activities.” Id.

But a fuller review of Knick’s discussion belies the suggestion that this is

supportive of the New Mexico Officials’ argument. The Court explained that Williamson

County had relied on past cases denying requests for injunctive relief where there was an

adequate remedy at law. See Knick, 588 U.S. at 194–95, 198–202 (citing cases). For

example, the Court in Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1016–20 (1984),

vacated the district court’s judgment enjoining enforcement of a law for violating the

Takings Clause because an arbitration mechanism provided a means to obtain

compensation, and the Tucker Act was available to challenge the sufficiency of

compensation. The Court stated that the district court erred in enjoining the law because

“[e]quitable relief is not available to enjoin an alleged taking of private property for a

public use . . . when a suit for compensation can be brought against the sovereign

subsequent to the taking.” Id. at 1016, 1019. To the extent that Williamson County relied

on this equitable principle, the Court in Knick reasoned “[t]hat much is consistent with

our precedent.” 588 U.S. at 195. “[T]he availability of subsequent compensation meant

29 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 30

that such an equitable remedy was not available.” Id. at 198. Lack of entitlement to an

injunction, however, did not mean that no taking violation had occurred. Id. at 199.

We are not convinced that Knick’s discussion of state-law remedies reflects a

jurisdictional bar for taking lawsuits that otherwise fall within the requirements of Ex

parte Young. Rather, the Court’s assurances in Knick reflect the well-settled principle that

equitable remedies are unavailable where there is an adequate legal remedy. See Sanders

v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1144 (10th Cir. 2012) (“As tradition

goes, the equitable power of the courts is available only when legal remedies are

demonstrably inadequate.”).

Indeed, a panel of this court recently reached this same conclusion and rejected the

argument now made by the New Mexico Officials. In Teva Pharmaceuticals USA, Inc. v.

Weiser, No. 24-1035, 2025 WL 2555552, at *2–3 & n.3 (10th Cir. Sep. 5, 2025)

(unpublished), 2 we declined to analyze the availability of state-law remedies within our

Ex parte Young analysis for taking claims. Rather, we opted to conduct our established

“straightforward inquiry” of whether the plaintiff “seeks relief properly characterized as

prospective.” See id. (quoting Verizon, 535 U.S. at 645). The panel noted that whether

relief could be properly characterized as prospective and whether injunctive relief was

ultimately warranted were separate questions. Id. at *3. “While a court may not award

injunctive relief unless no adequate remedy at law exists, Ex parte Young allows [a]

Plaintiff to seek it.” Id.

2 We cite unpublished cases for their persuasive value only and do not treat them as binding authority. See United States v. Ellis, 23 F.4th 1228, 1238 n.6 (10th Cir. 2022). 30 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 31

We are persuaded by the reasoning in Teva Pharmaceuticals that plaintiffs

asserting taking claims need satisfy only our established Ex parte Young inquiry. While

legal remedies under New Mexico law may prevent a federal court from awarding the

Landowners’ requested equitable relief in the form of injunction, sovereign immunity will

not prevent them from seeking such a remedy.

c. Coeur d’Alene

Although the district court did not address this issue, the New Mexico Officials

argue that the Landowners’ claims are additionally barred by the exception to Ex parte

Young announced in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997).

In Coeur d’Alene, the Supreme Court held the Eleventh Amendment barred a

lawsuit by an Indian tribe against state officials, where the tribe sought a declaration of its

entitlement to the exclusive use, occupancy, and right to quiet enjoyment of submerged

lands claimed by the State of Idaho. 521 U.S. at 265, 281–82. The Court justified its

rejection of Ex parte Young on the basis that the tribe’s suit was equivalent to a quiet title

action and the relief sought would erase the state’s regulatory authority over the disputed

land. Id. at 282. The Court explained that the relief requested would shift “substantially

all benefits of ownership and control” from the state to the tribe and would entail

“consequences going well beyond the typical stakes in a real property quiet title action.”

Id. Indeed, the state would be stripped of all regulatory jurisdiction over land “long

deemed . . . to be an integral part of its territory.” Id. These concerns were magnified

because the land in question was submerged, and states have historically had especially

31 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 32

strong sovereign interests in navigable waters and the lands underlying them. See id.

at 283–84.

We have noted, however, that Coeur d’Alene is an “extreme and unusual

case,” Harris v. Owens, 264 F.3d 1282, 1293 (10th Cir. 2001) (quotation marks omitted),

limited to the sorts of “literal land grab effort[s]” that would divest a state of its sovereign

authority over its lands. See Hill v. Kemp, 478 F.3d 1236, 1259–60 (10th Cir. 2007)

(instructing courts to conduct the “straightforward inquiry” outlined in Verizon and noting

that “[n]othing in [the lawsuit] call[ed] to mind the sort of literal land grab effort made by

the plaintiffs in Coeur d’Alene”); see also Tarrant Reg’l Water Dist. v. Sevenoaks, 545

F.3d 906, 913 (10th Cir. 2008) (“To the extent it is even appropriate to draw comparisons

to Coeur d’Alene after Verizon Maryland’s instructions . . . . a favorable judgment in this

case would not entitle [the plaintiff] to appropriate Oklahoma water in the same way that

a quiet title action conclusively determines the parties’ rights to real property.”); Va. Off.

for Prot. & Advoc., 563 U.S. at 255–57 (rejecting the argument that Coeur d’Alene

applies outside of circumstances seeking to “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”

(quoting Coeur d’Alene, 521 U.S. at 282) (quotation marks and ellipses omitted)).

In this case, the Landowners’ claims are nothing like the literal land grab effort

seen in Coeur d’Alene and would not divest New Mexico of sovereign authority. Indeed,

there is no dispute that the Landowners claim title to the streambeds at issue or that New

Mexico will continue to have regulatory authority over those streambeds. The only

dispute concerns whether the public can continue to have a limited easement to use the

32 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 33

Landowners’ private streambeds for recreation. Accordingly, Coeur d’Alene does not bar

the Landowners’ claims.

C. Rooker-Feldman Doctrine

Also on appeal, the New Mexico Officials argue that the Rooker-Feldman doctrine

bars Mr. Briones’s claims because he was subject to a final order from a state court when

the Landowners filed their lawsuit. The Landowners argue that, because they do not

challenge Mr. Briones’s consent decree and do not ask the federal courts to overturn it,

the doctrine does not bar Mr. Briones’s claims.

The Rooker-Feldman doctrine establishes, as a question of subject matter

jurisdiction, that only the United States Supreme Court has appellate authority to review a

state-court decision. See Bruce v. City and County of Denver, 57 F.4th 738, 746 (10th

Cir. 2023); 28 U.S.C. § 1257(a) (establishing Supreme Court jurisdiction to review

certain “[f]inal judgments or decrees rendered by the highest court of a State in which a

decision could be had”). The doctrine bars lower federal courts from reviewing claims

where “(1) the plaintiff lost in state court, (2) the state court judgment caused the

plaintiff’s injuries, (3) the state court rendered judgment before the plaintiff filed the

federal claim, and (4) the plaintiff is asking the district court to review and reject the state

court judgment.” Bruce, 57 F.4th at 746.

But Rooker-Feldman “does not deprive a federal court of jurisdiction to hear a

claim just because it could result in a judgment inconsistent with a state-court judgment.”

Mayotte v. U.S. Bank Nat’l Ass’n for Structured Asset Inv. Loan Tr. Mortg. Pass-Through

Certificates, Series 2006-4, 880 F.3d 1169, 1174 (10th Cir. 2018). Rather, barred claims

33 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 34

under Rooker-Feldman are “those ‘complaining of injuries caused by state-court

judgments.’” Campbell v. City of Spencer, 682 F.3d 1278, 1283 (10th Cir. 2012) (quoting

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). “In other

words, an element of the claim must be that the state court wrongfully entered its

judgment.” Id. Although claim or issue preclusion may prevent parties from relitigating

the same issues on the same facts as were resolved in a state court judgment, there is no

jurisdictional bar to doing so under Rooker-Feldman. Mayotte, 880 F.3d at 1174.

Here, Mr. Briones’s claim rests on actions taken by the New Mexico Supreme

Court that precede the entry of judgment in March 2024. Mr. Briones entered a consent

decree prohibiting him from erecting barriers, putting up signs, and using threats to keep

the public from exercising their right to recreate in public waters. But Mr. Briones’s claim

in this litigation can be proven without mention of his consent decree. And in asking for

an injunction barring future enforcement of the public’s right to recreate in his

streambeds, Mr. Briones does not ask this court to review or invalidate the state court

judgment in his case.

Nor are Mr. Briones’s injuries caused by the state court judgment. Rather than

looking to past enforcement as his injury, Mr. Briones seeks only to enjoin future

enforcement of the Adobe Whitewater holding, which does not involve the prior state

court judgment. The fact that a judgment in federal court may be inconsistent with the

consent decree does not preclude his claim. Accordingly, Mr. Briones’s claim is not

barred under Rooker-Feldman.

34 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 35

D. Abstention

Finally with respect to the jurisdictional arguments, the New Mexico Officials

argue that principles of comity between state and federal governments preclude us from

exercising jurisdiction over cases involving important state interests. They argue that

“New Mexico has a strong interest in interpreting its own constitution, resolving issues of

state property law, retaining control over its natural resources, and preserving public

access to those resources grounded in the public trust that has existed through tribal,

Spanish, and territorial times.” Appellees’ Br. at 41. Accordingly, the New Mexico

Officials maintain that “[a] federal court contradicting a considered determination by a

State’s highest court of the scope of state property and state constitutional rights would be

an unseemly intrusion on state sovereignty.” Id.

Federal courts have a “virtually unflagging obligation . . . to exercise the

jurisdiction given them.” Colo. River Water Conservation Dist. v. United States, 424 U.S.

800, 817 (1976). While this obligation is not absolute, the Supreme Court has cautioned

that, outside of exceptional circumstances it has identified when abstention is appropriate,

federal courts “should not refuse to decide a case in deference to the States.” Sprint

Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 72–73 (2013) (internal quotation marks and

brackets omitted). “Abstention from the exercise of federal jurisdiction is the exception,

not the rule.” Colo. River, 424 U.S. at 813.

The New Mexico Officials make no attempt to demonstrate that any of the

recognized abstention doctrines apply to this case. Instead, they rely entirely on an appeal

to general principles of comity between the states and the federal government.

35 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 36

Accordingly, we find that this argument was inadequately briefed and decline to consider

it. See Fed. R. App. P. 28(a)(8)(A), 28(b) (requiring the argument section of both the

appellant’s and appellee’s brief to contain “contentions and the reasons for them, with

citations to the authorities . . . on which the [they] rel[y]”); Bronson, 500 F.3d at 1104

(“[W]e routinely have declined to consider arguments that are not raised, or are

inadequately presented, in [a party’s] . . . brief.”).

E. Judicial Takings

Having determined that the Landowners have standing and that sovereign

immunity does not bar their claims, we turn to whether the Landowners’ Complaint states

a claim for a Fifth Amendment taking. We note that while the district court did not reach

this issue, the Landowners ask us to “decide whether the complaint states a claim for

relief rather than remanding for this determination.” Appellants’ Br. at 42. n.12. “Where

an issue has been raised, but not ruled on, proper judicial administration generally favors

remand for the district court to examine the issue initially.” Pac. Frontier v. Pleasant

Grove City, 414 F.3d 1221, 1238 (10th Cir. 2005). However, “[t]o prevent cases from

needlessly bouncing back and forth between district and appellate courts, this court is

entitled to affirm a district court on alternative grounds that court didn’t consider if those

grounds are adequate, apparent in the record, and sufficiently illuminated by counsel on

appeal.” Walton v. Powell, 821 F.3d 1204, 1212 (10th Cir. 2016).

All those requirements are met here. The Landowners fail to show their claimed

right to exclude was established such that their property rights were taken as opposed to

merely clarified. We therefore assume without deciding that the Fifth Amendment

36 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 37

protects against judicial takings and affirm on the alternative ground that the Landowners

fail to state a claim for relief. 3

When determining whether a complaint states a claim for relief, we apply the

standards of Federal Rule of Civil Procedure 12(b)(6). To survive a Rule 12(b)(6) motion

to dismiss, a plaintiff’s complaint must allege sufficient facts “to state a claim to relief

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A

3 The dissent expresses concern that, by affirming on this alternative ground, we deprive the Landowners of an opportunity to amend their Complaint. In support, it cites to our general rule that “a party should be granted an opportunity to amend his claims prior to a dismissal with prejudice.” See Sheldon v. Vermonty, 269 F.3d 1202, 1207 n.5 (10th Cir. 2001). The Landowners, however, have not requested leave to amend at any point in this litigation. See Calderon v. Kan. Dep’t of Soc. & Rehab. Servs., 181 F.3d 1180, 1186 (10th Cir. 1999) (“[A] court need not grant leave to amend when a party fails to file a formal motion.”). Furthermore, our decision today does not have the effect of dismissing the Landowners’ Complaint with prejudice. Although dismissal under Rule 12(b)(6) is ordinarily a dismissal with prejudice, a district court may specify that such a dismissal is without prejudice. See Fed. R. Civ. P. 41(b); see also Orr v. Clements, 688 F.3d 463, 465 (8th Cir. 2012) (stating that a dismissal under Rule 12(b)(6) “can be rendered without prejudice if the court so specifies”); Carter v. Norfolk Cmty. Hosp. Ass’n, 761 F.2d 970, 974 (4th Cir. 1985) (“A district court’s dismissal under Rule 12(b)(6) is, of course, with prejudice unless it specifically orders dismissal without prejudice. That determination is within the district court’s discretion.”); Rollins v. Wackenhut Servs., Inc., 703 F.3d 122, 132 (D.C. Cir. 2012) (Kavanaugh, J., concurring) (“[U]nder Rules 41(b) and 12(b)(6), a district court has discretion to dismiss a complaint without prejudice when the district court concludes that the circumstances so warrant.”). Here, in making its ruling on jurisdictional grounds, the district court dismissed the Landowners’ claims without prejudice. See Fed. R. Civ. P. 41(b). Our affirmance does not change the nature of the district court’s dismissal. Indeed, in the absence of a cross-appeal, we are precluded from altering the judgment to benefit a nonappealing party. See Greenlaw v. United States, 554 U.S. 237, 244 (2008). This rule bars us from altering a dismissal without prejudice to one with prejudice. June v. Union Carbide Corp., 577 F.3d 1234, 1248 n.8 (10th Cir. 2009). Thus, our decision today does not bar the Landowners from pursuing their claims in the future if they come forward with additional factual allegations. 37 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 38

claim is facially plausible “when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a

probability requirement, but it asks for more than a sheer possibility that a defendant has

acted unlawfully.” Id. (internal quotation marks omitted).

In our Rule 12(b)(6) analysis, we “disregard conclusory statements and look only

to whether the remaining, factual allegations plausibly suggest the defendant is liable.”

Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012). “The court’s function

on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might

present at trial . . . .” Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010) (quotation

marks omitted). Rather, “[w]e accept all well-pled factual allegations as true and view

these allegations in the light most favorable to the nonmoving party.” Id. Where the

appeal is from a decision granting a motion to dismiss, we review de novo whether a

complaint states a claim for relief under Rule 12(b)(6). 4 Brown v. City of Tulsa, 124 F.4th

1251, 1263 (10th Cir. 2025).

2. Legal Background The Takings Clause of the Fifth Amendment states that “private property [shall

not] be taken for public use, without just compensation.” U.S. Const. amend. V. What

counts as “property” depends both on existing “state law” and on “‘traditional property

law principles,’ plus historical practices and [Supreme Court] precedents.” Tyler v.

4 Here, the district court did not reach the issue of whether the Complaint failed to state a claim under Rule 12(b)(6). 38 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 39

Hennepin Cnty., 598 U.S. 631, 638 (2023) (quoting Phillips v. Wash. Legal Found., 524

U.S. 156, 167 (1998)). While actions by legislative and executive bodies are frequently

the subject of taking claims, it remains unsettled whether the Takings Clause protects

against judicial decisions affecting an individual’s property rights.

In 2010, the Supreme Court considered this question in Stop the Beach

Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702

(2010). There, the Court examined whether a decision by the Florida Supreme Court,

which allowed the state to restore eroded beaches and claim title to the newly added land,

amounted to an unconstitutional taking without compensation. Id. at 709–12. Specifically,

beachfront property holders argued that the decision took their rights to further additions

to their property through sediment deposits (accretions) and their right to have their

property touch the water. Id. at 711–12.

Florida law provided that the state held submerged lands in trust for the public. Id.

at 707. Beachfront property holders—known as littoral landowners—owned land down to

the mean high-water line. Id. at 707–08. Under Florida common law, littoral landowners

automatically took title to additional land added through accretions, the gradual addition

of land through natural depositing of sediment. Id. at 708. But littoral landowners did not

take title to land added through avulsions, a sudden change to the land on the beach

through, for example, a hurricane. Id. at 708–09. Thus, when an avulsion has added new

land, the littoral owner would no longer own the land down to the mean high-water mark

and would have no further rights to land added through accretion. Id. at 709.

39 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 40

Florida passed a law that would allow the state to restore eroded beaches and set

an erosion control line as a littoral landowner’s new property line, thereby eliminating

littoral landowners’ rights to future additions to their land through accretions and

eliminating their right to have their land touch the water. Id. at 709–10. The Florida

Supreme Court concluded that this law was not an unconstitutional taking of littoral

landowners’ property, holding that the doctrine of avulsion permitted the state to reclaim

the restored beach. Id. at 712.

The U.S. Supreme Court granted certiorari to consider whether the Florida

Supreme Court’s decision took property without just compensation in violation of the

Takings Clause of the Fifth Amendment. Id. at 707, 712. While all eight participating

justices 5 concurred in the judgment that the Florida Supreme Court’s decision was not a

taking, id. at 706, 733, no opinion commanded a majority of the Court, leaving the status

of judicial-taking claims in doubt.

Writing for a four-justice plurality, Justice Scalia suggested that the Fifth

Amendment protects property owners against judicial takings. “If a legislature or a

court declares that what was once an established right of private property no longer

exists, it has taken that property, no less than if the State had physically appropriated it or

destroyed its value by regulation.” Id. at 715. Justice Scalia reasoned that “[t]here is no

textual justification for saying that the existence or the scope of a State’s power to

expropriate private property without just compensation varies according to the branch of

Justice Stevens did not participate in the decision. Stop the Beach 5

Renourishment, Inc. v. Fla. Dep’t. of Env’t Prot., 560 U.S. 702, 733 (2010). 40 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 41

government effecting the expropriation.” Id. at 714. Rather, using common sense, “[i]t

would be absurd to allow a State to do by judicial decree what the Takings Clause forbids

it to do by legislative fiat.” Id. Importantly for our purposes, the plurality opinion

distinguished between decisions that change property law, which would be

unconstitutional without compensation, and those that merely clarify property law, which

would be permissible. “[I]nsofar as courts merely clarify and elaborate property

entitlements that were previously unclear, they cannot be said to have taken an

established property right.” Id at 727.

Two opinions concurring in part and concurring in the judgment, however,

expressed doubt about the idea that a judicial decision could give rise to a Fifth

Amendment taking, but they found it unnecessary to decide the issue. First, Justice

Kennedy’s concurrence in part and concurrence in the judgment, joined by Justice

Sotomayor, drew attention to difficulties with applying the Takings Clause to judicial

decisions. Among other things, Justice Kennedy noted the difficult questions that would

arise regarding how judicial-taking claims could be brought and what remedies would be

available to prevailing parties. Id. at 740–41. While he ultimately considered the question

unnecessary to decide in that case, Justice Kennedy suggested that the Due Process

Clause might be a better vehicle for the Court’s concerns, opining that “[t]he Court would

be on strong footing in ruling that a judicial decision that eliminates or substantially

changes established property rights, which are a legitimate expectation of the owner, is

‘arbitrary or irrational’ under the Due Process Clause.” Id. at 736–37.

41 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 42

In the second concurrence in part and concurrence in the judgment, Justice Breyer,

joined by Justice Ginsburg, likewise thought the question of judicial takings was better

left to another day. Id. at 742. While expressing no opinion on the soundness of the

plurality’s ultimate conclusions, Justice Breyer warned that unnecessarily deciding the

issue “would invite a host of federal taking claims without the mature consideration of

potential procedural or substantive legal principles that might limit federal interference in

matters that are primarily the subject of state law.” Id. at 743. Justice Breyer thereby

raised comity and federalism concerns, noting that recognizing claims for judicial takings

“would create the distinct possibility that federal judges would play a major role in the

shaping of . . . state property law.” Id. at 744.

Notwithstanding these disagreements, the Court unanimously concluded that the

landowners had not met their burden to show that, prior to the decision, “littoral-property

owners had rights to future accretions and contact with the water superior to the State’s

right to fill in its submerged land” and take title to those lands pursuant to the doctrine of

avulsion. Id. at 730. The landowners had failed to show that there was an exception to the

state’s right to avulsions when the state caused the sudden addition of land, and prior case

law suggested that no such exception existed. Id. Accordingly, even if judicial decisions

could form the basis for a Fifth Amendment taking, the Court held that the Florida

Supreme Court did not invalidate an established property right, and its decision was

therefore not an unconstitutional taking. See id. at 733.

42 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 43

3. Analysis

The Landowners assert that, prior to Adobe Whitewater, all three branches of the

New Mexico government recognized that owners of non-navigable streambeds had the

right to exclude trespassers. Thus, the Landowners argue that the New Mexico Supreme

Court contravened established property law and took their right to exclude when it held

that the public had a right to walk and wade in private streambeds.

Addressing the merits of the Landowners’ claims, we are faced with the difficult

question of whether the Takings Clause protects against judicial takings. In the nearly

sixteen years since Stop the Beach Renourishment, no court has definitively answered

this question. Instead, courts have avoided the issue. Many courts, including several of

our sister circuits, have assumed the validity of judicial-taking claims without deciding

the issue and held that plaintiffs failed to state a claim for a judicial taking. See, e.g.,

Wells Fargo Bank, N.A. v. Mahogany Meadows Ave. Tr., 979 F.3d 1209, 1215–16 (9th

Cir. 2020) (declining to answer whether the Fifth Amendment protects against judicial

takings when “nothing in Nevada law” showed that plaintiffs had an established right to

disputed property); Petrie ex rel. PPW Royalty Tr. v. Barton, 841 F.3d 746, 756 (8th

Cir. 2016) (opting not to decide whether a claim for a judicial taking can be brought

where it “would have failed” anyway). Others have disposed of their cases through

jurisdictional and procedural bars, never reaching the merits. See, e.g., Pavlock, 35 F.4th

at 588–90 (holding that landowners along the banks of Lake Michigan lacked standing to

bring their judicial-taking claims because the Indiana Supreme Court rather than the

named defendants had caused the loss of the landowners’ property rights); Petro-Hunt,

43 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 44

L.L.C. v. United States, 862 F.3d 1370, 1384–85 (Fed. Cir. 2017) (affirming the Court of

Federal Claims’ dismissal of the plaintiff’s judicial-taking claim because the court

“lack[ed] jurisdiction to review the merits of a decision rendered by a federal district

court”).

We take a similar approach here because, even if judicial-taking claims exist, the

Landowners have failed to state a claim for a judicial taking as outlined in Stop the Beach

Renourishment’s plurality opinion. The Landowners bear the burden of demonstrating

that their rights were sufficiently established before Adobe Whitewater such that this

decision amounted to a judicial taking. See Stop the Beach Renourishment, 560 U.S.

at 730 (“There is no taking unless petitioner can show that, before the Florida Supreme

Court’s decision, littoral-property owners had rights to future accretions and contact with

the water superior to the State’s right to fill in its submerged land.”); Robbins v.

Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (“The burden is on the plaintiff to frame

a ‘complaint with enough factual matter (taken as true) to suggest’ that he or she is

entitled to relief.” (quoting Twombly, 550 U.S. at 556)). The Landowners’ allegations in

this case are plainly insufficient.

In his plurality opinion, Justice Scalia maintained that courts do not take

established property rights where they “merely clarify and elaborate property entitlements

that were previously unclear.” Stop the Beach Renourishment, 560 U.S. at 727. In doing

so, he emphasized that we owe substantial deference to state courts. Id. at 726 n.9. “A

property right is not established if there is doubt about its existence; and when there is

doubt we do not make our own assessment but accept the determination of the state

44 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 45

court.” Id. The Landowners’ Complaint does not plausibly allege that Adobe Whitewater

changed established law as opposed to clarifying of the scope of the public’s easement to

use public water.

As the Landowners concede, whether their property rights were established is a

question of law. See Tompkins v. United States Dep’t of Veterans Affs., 16 F.4th 733, 739

n.7 (10th Cir. 2021) (“The existence of a property interest is . . . a question of law, not

one of fact.”); Tarabishi v. McAlester Reg’l Hosp., 827 F.2d 648, 652 (10th Cir. 1987)

(“Whether the facts establish a property interest is a question of law.”); see also Anderson

v. United States, 23 F.4th 1357, 1362 (Fed. Cir. 2022) (“Whether a taking occurred is a

legal question based on factual underpinnings. . . . [D]etermining the scope of a

compensable property interest is a question of law.”). The Landowners argue that every

branch of the New Mexico government recognized their right to exclude the public. We

address each of the Landowners’ factual allegations in support of this historic recognition

in turn.

Addressing recognition by the courts, the Landowners point to a statement in the

denial of a motion for rehearing in Red River Valley. In that order, the New Mexico

Supreme Court considered and rejected various arguments suggesting that the owners of

land below public waters had exclusive rights to the water under the riparian system. Red

River Valley Co., 182 P.2d at 457, 461. After rejecting these arguments, the court

reiterated some of the reasons for its initial decision and attempted to pacify concerns

about the reach of its holding, stating that

45 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 46

no person has the right to approach public water through private property, or fish in public water while on private property without the consent of the owner; but he may fish in public water if he does not trespass upon the lands of another; and fishing in public water from a boat is not a trespass upon the property of the owner of the underlying land.

Id. at 464. Notably, however, the Landowners fail to cite to a single New Mexico case

rejecting the argument that the public has an incidental right to access private streambeds

and banks for the purpose of using public water.

The court in Red River Valley explicitly declined to consider the question of

private land touching public waters. See id. at 427 (“The question of right of use,

or trespass upon, the lands of appellee bordering upon the lake area in question is

not involved.”). Yet the Landowners suggest that, by excluding land use from its

consideration, the court in Red River Valley intended its ruling to foreclose such a

right.

However, much of the language in the Red River Valley decision

contemplates the possibility of an incidental right to use private land. Citing to Las

Siete Partidas, a Spanish Code relevant to the law that applied prior to New

Mexico’s statehood, the court quoted the following language as influential to their

finding of a public right to fish:

And although the banks of rivers are, so far as their ownership is concerned, the property of those whose lands include them, nevertheless, every man has a right to use them, by mooring his vessels to the trees, by repairing his ships and his sails upon them, and by landing his merchandise there; and fishermen have the right to deposit their fish and sell them, and dry their nets there, and to use said banks for every other purpose like those which appertain to the calling and the trade by which they live. Id. at 429 (citation omitted). 46 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 47

To be sure, the denial of rehearing in Red River Valley contains language asserting

that “no person has the right to approach public water through private property, or fish in

public water while on private property without the consent of the owner.” See id. at 464.

But this language does not appear in the court’s initial decision. Nor does it relate to the

basis for which rehearing was sought. Instead, the denial of rehearing concerned

arguments relating to the public’s right to access the water, including whether the court

properly applied Spanish-Mexican law to find a public water right and whether land

granted through a United States land patent could be subject to that public water right.

See id. at 457–60. Thus, the language assuring that “no person has the right to . . . fish in

public water while on private property without the consent of the owner,” see id. at 464,

is dicta and of minimal value to showing that a right was established.

Furthermore, the language cited from the rehearing denial need not be read

inconsistently with Adobe Whitewater’s holding. Importantly, the court in Adobe

Whitewater emphasized that the public still did not have a right to cross private property

to reach public water and did not have a right to use public water as a means to gain

access to and trespass on privately owned land. 519 P.3d at 53. The court characterized

the public right to access private streambeds narrowly, emphasizing “that the scope of the

public’s easement includes only such use as is reasonably necessary to the utilization of

the water itself and any use of the beds and banks must be of minimal impact.” Id. at 56.

Accordingly, the Landowners have failed to show that their now-claimed right was

established in New Mexico courts.

47 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 48

Notwithstanding the dearth of case law supporting their position, the Landowners

argue that citing a case is unnecessary and urge us to instead look to “the state’s past

treatment of the property right” as well as traditional principles of property law. Reply

Br. at 25.

Beginning with traditional principles, the Landowners point to the importance of

the right to exclude under property law. See Cedar Point Nursery v. Hassid, 594 U.S. 139,

149 (2021) (“The right to exclude is one of the most treasured rights of property

ownership.” (citation and internal quotation marks omitted)). However, the right to

exclude is not absolute where the property is subject to a conflicting property right—at

issue here, an easement. See Restatement (Third) of Property (Servitudes) § 1.2(1) (2000)

(“An easement creates a nonpossessory right to enter and use land in the possession of

another and obligates the possessor not to interfere with the uses authorized by the

easement.”). Importantly, the Landowners do not dispute that the public has an easement

to use public waters on their private land. Their dispute concerns only the scope of that

easement. And yet the Landowners provide no traditional principle suggesting an

established limitation that would foreclose an incidental right to touch private streambeds

and banks.

As to past treatment, the Landowners continue to assert that their claimed right

was recognized throughout New Mexico’s government and point to their Complaint for

facts supporting this assertion.

The supporting allegations, as stated both in their Complaint and opening brief, are

that the Commission and the Department “issued consistent guidance that streambeds

48 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 49

were off limits without the consent of the owner.” See Appellants’ Br. at 43. Specifically,

the Landowners point to two fishing proclamations issued by the Department. The first

proclamation, issued in 1991, contains a section titled “Private Lands, Trespass, Stream

Beds, Access” in which it directs the public to “[o]btain permission before fishing on

private lands” and warning that the proclamation should not be construed as authorizing

“entry into or onto any privately owned property, including stream beds, without the

landowner’s permission.” App. at 37. And the second 1998 proclamation contains a

section titled “Access for Fishing,” which contains similar language. Id. at 48.

Aside from these fishing proclamations, the Landowners’ only factual allegations

regarding the state’s treatment of their right to exclude the public is the 2015 law

recognizing the right to exclude the public from private streambeds as well as the law’s

implementing regulations. This law and its implementing regulations were the subject of

the New Mexico Supreme Court’s holding in Adobe Whitewater, where the regulations

were determined to be unconstitutional under New Mexico’s public water provision. 519

P.3d at 56. And although the underlying law was upheld, it was interpreted consistently

with the public’s limited easement to touch land below public water, thereby avoiding the

constitutional issue. Id. at 57.

Neither the Department’s fishing proclamations nor the 2015 law and

implementing regulations are sufficient to meet the Landowners’ burden to show their

claimed right to exclude was established. Language in a series of fishing proclamations is

insufficient to plausibly suggest an established property right as opposed to an agency

misinterpretation of New Mexico law. See Twombly, 550 U.S. at 554 (noting that Rule

49 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 50

8(a)(2) requires that a plaintiff plead facts plausibly suggesting, and “not merely

consistent with,” entitlement to relief). And we decline to find an established property

right based on agency actions where near immediate legal challenge resulted in their

invalidation. Such a history is plainly insufficient to dispel “doubt about [the] existence”

of the Landowners’ claimed right to exclude. See Stop the Beach Renourishment, 560

U.S. at 726 n.9.

To be sure, state law is not the only source of property rights, which likewise

depend on “‘traditional property law principles,’ plus historical practices and [Supreme

Court] precedents.” Tyler, 598 U.S. at 638 (quoting Phillips, 524 U.S. at 167). However,

the Landowners have failed to meet their burden to demonstrate that these traditional

principles, historical practices, and precedents established their claimed property right.

The facts before us instead support the New Mexico Supreme Court’s conclusion that it

merely clarified the scope of the public’s easement to use public water and that the

Landowners never enjoyed the right to exclude they claim.

Facts not alleged in the Complaint might suggest otherwise. Yet “it is not for us to

conjure up facts that [the Landowners] declined to plead and then to draw inferences

therefrom.” See Daunt v. Benson, 999 F.3d 299, 309 (6th Cir. 2021). We therefore assume

without deciding that the Fifth Amendment protects against judicial takings and affirm on

the alternative ground that the Landowners fail to state a claim for relief.

50 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 51

III. CONCLUSION

For the reasons articulated above, we AFFIRM the district court’s dismissal of the

Landowners’ Complaint on the alternative ground that they have failed to state a claim

for a Fifth Amendment taking.

51 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 52

No. 25-2009, Sanchez, et al. v. Torrez, et al. FEDERICO, Circuit Judge, concurring in part and dissenting in part.

I fully agree with the majority’s incisive analysis of the standing,

sovereign immunity, and other jurisdictional issues in this appeal. I therefore

join Parts I–II.D of the majority opinion in concluding that we have jurisdiction

to hear this case. From there, however, I part company with the majority.

While the majority affirms because the plaintiffs (Landowners) fail to state a

claim for a judicial taking, I would have stopped our decision at jurisdiction.

The district court ruled for the defendants (New Mexico Officials) solely

on jurisdictional grounds. It never addressed whether the Landowners had

sufficiently alleged a judicial takings claim. Although that does not bar us from

reaching the issue, neither the Landowners nor the New Mexico Officials

adequately developed their arguments on this point. Moreover, by affirming

for failure to state a claim in this posture, the majority denies the Landowners

an opportunity to amend their complaint. In my view, the more prudent path

would have been to vacate the judgment and remand for the district court to

assess the sufficiency of the Landowners’ claim in the first instance. I

respectfully dissent in part.

I

As a court of appeals, “[w]e are a court of review, not of first view.” Moody

v. NetChoice, LLC, 603 U.S. 707, 726 (2024) (quoting Cutter v. Wilkinson, 544 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 53

U.S. 709, 718 n.7 (2005)). For this reason, we have frequently explained that

“[w]here an issue has been raised, but not ruled on [by the district court],

proper judicial administration generally favors remand for the district court to

examine the issue initially.” Pac. Frontier v. Pleasant Grove City, 414 F.3d

1221, 1238 (10th Cir. 2005); accord Timmins v. Plotkin, 157 F.4th 1275, 1282

(10th Cir. 2025). To be sure, that is a discretionary principle, not a limit on our

authority. See Walton v. Powell, 821 F.3d 1204, 1212 (10th Cir. 2016). But we

should be careful about how we exercise that discretion and should not

reflexively decide an appeal on alternative grounds every time a party asks us

to do so. Rather, we must ensure that “those grounds are adequate, apparent

in the record, and sufficiently illuminated by counsel.” Id.

The parties to this appeal have not sufficiently illuminated their

arguments on the merits of the Landowners’ judicial takings claim. Between

their opening and reply briefs, the Landowners allocate just over five pages to

the matter. In their response brief, the New Mexico Officials offer even less,

providing little more than a page. The parties’ district court briefing is also of

little help. It is similarly sparse, totaling five and half pages between both

sides, and it contributes no additional substance to the parties’ appellate

arguments.

More importantly, the parties’ cursory briefing fails to grapple with the

complexity and novelty of the matter at hand. The law on judicial takings is

2 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 54

unsettled, and even the most basic question – Is there such a thing as a claim

for a judicial taking? – remains largely unanswered. Assuming such a claim

exists, as the majority does, invites more questions. We know that a judicial

takings claim would require the Landowners to prove the existence of an

“established” property right and the taking of that right, but we don’t know

much more than that. Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t

Prot., 560 U.S. 702, 732 (2010). By what standard do we measure whether a

property right is sufficiently established? And how does that legal standard

intersect with the pleading rules under Federal Rule of Civil Procedure

12(b)(6)? The parties don’t say.

Despite the lack of answers to these questions (and despite the parties’

minimal-at-best efforts to provide such answers), the majority affirms on the

basis that the Landowners failed to plead an established property right.

Namely, the majority concludes that the Landowners did not have an

established right to exclude the public from touching private streambeds. That

may have been an acceptable approach if this were a simpler case where the

Landowners offered “nothing” at all in support of their right. See Wells Fargo

Bank, N.A. v. Mahogany Meadows Ave. Tr., 979 F.3d 1209, 1216 (9th Cir.

2020). Were that so, the lack of clarity about standards would not prove to be

an obstacle since the Landowners’ claim would have failed under any standard.

However, this appeal does not present that scenario. Here, even though the

3 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 55

parties failed to develop their positions on the applicable legal standards, they

have each presented arguments about whether the Landowners’ claimed

property right is established.

The New Mexico Officials point out that a few years ago, the New Mexico

Supreme Court expressly addressed whether New Mexico property law

recognizes that claimed right. The Court held that such a right never existed.

Adobe Whitewater Club of N.M. v. N.M. State Game Comm’n, 519 P.3d 46, 57–

58 (N.M. 2022). This is a compelling argument because the state supreme court

is “the final arbiter of . . . state law.” Montana v. Wyoming, 563 U.S. 368, 377

n.5 (2011) (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223, 236 (1940)). And

property rights are generally “created and defined by state law.” Fed. Land

Bank of Wichita v. Bd. of Cnty. Comm’rs, 788 F.2d 1440, 1441 (10th Cir. 1986).

Still, as the Landowners observe, state law is not the final word in the

takings context. Certainly, “[s]tate law is one important source” that a federal

court must consult when deciding a takings claim. Tyler v. Hennepin County,

598 U.S. 631, 638 (2023). But the court must also look beyond state law to

consider “traditional property law principles, plus historical practice and [the

Supreme] Court’s precedents.” Id. (internal quotation marks and citations

omitted).

The Landowners alleged precisely these kinds of non-state law sources

in their complaint. They marshaled factual allegations about historical

4 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 56

practices, alleging that prior to Adobe Whitewater, both New Mexico’s

executive and legislative branches had recognized the claimed property right

via proclamation, legislation, and regulation. In their appellate arguments, the

Landowners also identified traditional property law principles and Supreme

Court precedent characterizing the right to exclude as “‘one of the most

treasured’ rights of property ownership.” Cedar Point Nursery v. Hassid, 594

U.S. 139, 149 (2021) (quoting Loretto v. Teleprompter Manhattan CATV Corp.,

458 U.S. 419, 435 (1982)).

Since there are material arguments on both sides, determining whether

the Landowners have sufficiently alleged an established property right

requires us to weigh state law against the Landowners’ non-state law sources.

For guidance on this exercise, the majority refers to Justice Scalia’s plurality

opinion in Stop the Beach. There, Justice Scalia explained that federal courts

should give “a considerable degree of deference to state courts” in determining

whether a property right is “established.” Stop the Beach, 560 U.S. at 726 n.9.

Under that approach, “[a] property right is not established if there is doubt

about its existence; and when there is doubt [federal courts] do not make [their]

own assessment but accept the determination of the state court.” Id.

Stop the Beach gives us a meaningful starting point but not the whole

framework for evaluating when and whether property rights are established.

It identifies a presumption in favor of state courts’ interpretation of state law,

5 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 57

but it says nothing about the amount of non-state law support needed to

overcome this presumption. Stop the Beach is also silent about how the

established property right requirement interacts with the Rule 12(b)(6)

pleading standard. After all, plaintiffs need not prove their claims to survive a

Rule 12(b)(6) motion; all they need is to demonstrate plausibility. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). From that perspective, the bar for proving an

established property right might be lower at the pleading stage than at

summary judgment or at a trial on the merits. Perhaps a simple good faith

argument that the state court was wrong on establishment could suffice to

support a judicial takings claim, even if a plaintiff’s burden would be higher at

later stages. If that is the case, the Landowners would undoubtedly have done

enough to avoid dismissal here.

Rule 12(b)(6) also requires courts to view well-pleaded factual allegations

in the light most favorable to plaintiffs and to draw all reasonable inferences

in their favor. Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir.

2021). I am not convinced the majority followed this command when it took a

dim view of the Landowners’ allegations and sources of support. That said, the

majority may not have needed to do so if the established property right

requirement is a pure question of law, like statutory interpretation. But again,

6 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 58

the parties have not addressed this issue of fact versus law, leaving us one

more unanswered and potentially dispositive question. 1

In any case, we have precedent suggesting the established property right

requirement has factual dimensions on which we must draw reasonable

inferences in the Landowners’ favor. See Knellinger v. Young, 134 F.4th 1034,

1043 (10th Cir. 2025) (holding that plaintiffs must prove, as an element of a

takings claim, that the thing taken “was property”); Tarabishi v. McAlester

Reg’l Hosp., 827 F.2d 648, 652 (10th Cir. 1987) (“Whether the facts establish a

property interest is a question of law.” (emphasis added)). Questions about

historical practice, which courts must consider under Tyler, also appear factual

on their face. 2 598 U.S. at 638.

1 The majority points to the Landowners’ purported concession that the

established property right requirement is a question of law. Majority at 45. But the Landowners were discussing “legal conclusions” in the context of Rule 12(b)(6), where any allegation parroting an element of the claim is a “legal conclusion” (and thus need not be credited at the Rule 12(b)(6) stage) even if that element is factual. See Reply Br. at 34; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). For example, the existence of an agreement in an antitrust case is a factual matter. Nonetheless, the Supreme Court has referred to unsupported allegations of agreement in a complaint as “legal conclusions.” See Twombly, 550 U.S. at 564. 2 The majority also cites Tompkins v. U.S. Department of Veterans Affairs, 16 F.4th 733 (10th Cir. 2021), and Anderson v. United States, 23 F.4th 1357 (Fed. Cir. 2022), in support of the proposition that the existence of a property right is a question of law. But both Tompkins and Anderson predate Tyler’s clarification that courts must consider historical practice. And Tompkins dealt with due process, not takings. 16 F.4th at 739 n.7. 7 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 59

II

Apart from substantive concerns, I also have procedural misgivings

about this result. Had the district court dismissed the complaint for failure to

state a claim in the first instance, the Landowners would likely have had the

chance to amend their complaint. That is because this court has said, “[a]s a

general matter, a party should be granted an opportunity to amend his claims

prior to a dismissal with prejudice.” Sheldon v. Vermonty, 269 F.3d 1202, 1207

n.5 (10th Cir. 2001). The majority has deprived the Landowners of that chance

by holding their complaint to be insufficient in the first instance on appeal. 3

While there are post-judgment procedures that allow amendment, it is much

more difficult to amend through those procedures than it is to amend prior to

judgment. See BLOM Bank SAL v. Honickman, 605 U.S. 204, 213 (2025)

(amendment under Rule 60(b)(6) requires a showing of “extraordinary

circumstances”). Now, we can only guess at whether there are further

allegations the Landowners could have made to sustain their claim.

Of course, this court cannot “conjure up” what those allegations might

have been. Majority at 50 (quoting Daunt v. Benson, 999 F.3d 299, 309 (6th

Cir. 2021)). But that is all the more reason to remand. That way, the

3 To the extent the majority faults the Landowners for not expressly

requesting leave to amend, the Landowners have not yet had any occasion to request leave to amend on the merits of their claim. 8 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 60

Landowners could have raised those allegations themselves. If the additional

allegations were still insufficient, the district court could have dismissed and

entered judgment following a fulsome review of an amended complaint. Or, if

no other allegations existed, the district court could have dismissed with

confidence that it had considered the full universe of relevant allegations. As

it stands now, I am concerned the majority has prematurely cut off litigation

on a potentially meritorious claim.

In response to these procedural misgivings, the majority observes that

the judgment against the Landowners remains a dismissal without prejudice

such that the Landowners could refile and raise new allegations. Majority at

37 n.3. That may well be true. Kerr v. Polis, 20 F.4th 686, 704 (10th Cir. 2021)

(en banc); see also id. at 717–19 (Bacharach, J., concurring). But it is also not

so simple, as forcing the Landowners to refile before amending may lead to

preclusion issues and could introduce statute of limitations problems.

More fundamentally, the possibility that the Landowners could file a

new action raising the same claim undermines the majority’s justification for

deciding this appeal on alternative grounds in the first place. Our discretion to

affirm on alternative grounds is rooted in the desire “[t]o prevent cases from

needlessly bouncing back and forth between district and appellate courts.”

Walton, 821 F.3d at 1212. Yet that is precisely what will happen if the

Landowners refile and the district court dismisses the refiled case – the

9 Appellate Case: 25-2009 Document: 57-1 Date Filed: 04/21/2026 Page: 61

Landowners will appeal again. That is no different than what would happen if

we had remanded, and the district court subsequently dismissed on the merits.

Except, if we had remanded without reaching the Rule 12(b)(6) issue in the

first instance, we would have saved the Landowners a needless filing fee and

avoided any obstacles regarding preclusion or the statute of limitations. From

that view, the majority has not captured any efficiencies but rather introduced

new costs and inefficiencies.

***

For these reasons, I respectfully dissent only from the majority’s decision

to affirm for failure to state a claim.