Pre-Enforcement Judicial-Takings Suits May Proceed Against State Enforcers Under Ex parte Young, but Plaintiffs Must Plausibly Allege an “Established” Property Right

I. Introduction

Sanchez v. Torrez (10th Cir. Apr. 21, 2026) arises from a clash between private streambed ownership and public recreational access to “public waters” in New Mexico. Five landowners (Lucia F. Sanchez, Michael F. Sanchez Jr., Roland Rivera, Erik Briones, and Richard Jenkins) own the beds of non-navigable segments of the Rio Tusas or Pecos River. They alleged that the New Mexico Supreme Court’s decision in Adobe Whitewater Club of New Mexico v. New Mexico State Game Commission, 519 P.3d 46 (N.M. 2022), newly recognized a public right to walk and wade on privately owned streambeds beneath public waters—thereby eliminating the landowners’ claimed right to exclude and effecting a “judicial taking” without just compensation in violation of the Fifth Amendment (via 42 U.S.C. § 1983).

The defendants were New Mexico officials responsible for enforcement (including Attorney General Raúl Torrez and Game & Fish officials). The landowners sought declaratory and prospective injunctive relief to prevent enforcement actions against them.

The case presented three core questions:

  • Standing: Can landowners bring a pre-enforcement federal challenge when the alleged “taking” stems from a state supreme court interpretation, but the threatened injury is enforcement by executive officials?
  • Sovereign immunity: Does the Eleventh Amendment bar prospective relief, particularly where compensation might be implicated, or where state remedies exist?
  • Merits: Assuming “judicial takings” are cognizable, did the complaint plausibly allege an “established” state property right that was taken rather than clarified?

II. Summary of the Opinion

The Tenth Circuit:

  1. Rejected the district court’s jurisdictional dismissals: the landowners had Article III standing; sovereign immunity did not bar the suit under Ex parte Young; neither Idaho v. Coeur d'Alene Tribe of Idaho nor the Rooker-Feldman doctrine barred review; and abstention was not properly developed.
  2. Affirmed dismissal on an alternative merits ground: even assuming the Fifth Amendment reaches “judicial takings,” the complaint failed under Rule 12(b)(6) because it did not plausibly allege that the landowners’ claimed right to exclude the public from touching/wading on private streambeds was an “established” property right prior to Adobe Whitewater.

Judge Federico concurred on jurisdiction but dissented from reaching (and resolving) the merits without remand, emphasizing underdeveloped briefing and amendment concerns.

III. Analysis

A. Precedents Cited (and How They Shaped the Court’s Decision)

1. New Mexico water/public-use baseline

  • State ex rel. State Game Comm'n v. Red River Valley Co., 182 P.2d 421 (N.M. 1945)
    Role: This case was the historical anchor. It interpreted New Mexico’s “public waters provision” (N.M. Const. art. XVI, § 2) as declaratory of longstanding Spanish-Mexican law: unappropriated waters are public. The Tenth Circuit used Red River Valley primarily to evaluate whether the landowners could plausibly claim that New Mexico law had “established” an exclusionary right in streambeds against incidental public contact. The panel emphasized that Red River Valley did not decide streambed trespass questions and contained language contemplating public incidental uses of banks under Spanish sources—undercutting the “clearly established” narrative.
  • Adobe Whitewater Club of New Mexico v. New Mexico State Game Commission, 519 P.3d 46 (N.M. 2022)
    Role: This was the alleged “taking.” It invalidated Game Commission regulations that required written permission to walk/wade on private streambeds under public waters, holding that touching the bed is reasonably necessary for many forms of recreation. The Tenth Circuit treated Adobe Whitewater as the operative rule New Mexico officials were enforcing (creating the injury-in-fact), but also as the state court’s authoritative explanation of state property/easement scope—making it harder for plaintiffs to plead an “established” contrary right.

2. Standing in pre-enforcement challenges

  • Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)
    Role: The canonical elements—injury, traceability, redressability—framed the dispute. The court held the district court misidentified the relevant injury for traceability/redressability analysis.
  • Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) and Babbitt v. Farm Workers, 442 U.S. 289 (1979)
    Role: Supplied the “credible threat of prosecution” test for injury-in-fact in pre-enforcement suits. The court applied these to find injury because enforcement against similarly situated landowners had occurred (including Briones).
  • Winsness v. Yocom, 433 F.3d 727 (10th Cir. 2006), Doctor John's, Inc. v. City of Roy, 465 F.3d 1150 (10th Cir. 2006), Mink v. Suthers, 482 F.3d 1244 (10th Cir. 2007), Rocky Mountain Gun Owners v. Polis, 121 F.4th 96 (10th Cir. 2024)
    Role: These cases helped calibrate what constitutes a “credible threat” and stressed that a threat is generally credible when enforcement is not disavowed.
  • Bronson v. Swensen, 500 F.3d 1099 (10th Cir. 2007)
    Role: Critical for traceability: in pre-enforcement challenges, causation is satisfied when named defendants have authority to enforce the complained-of law.
  • Larson v. Valente, 456 U.S. 228 (1982), Consumer Data Indus. Ass'n v. King, 678 F.3d 898 (10th Cir. 2012), Massachusetts v. EPA, 549 U.S. 497 (2007)
    Role: Established that complete redressability is unnecessary; partial redress of “an injury” suffices. This directly defeated the district court’s view that public/private enforcement alternatives negate redressability.
  • Pavlock v. Holcomb, 35 F.4th 581 (7th Cir. 2022)
    Role: The district court relied on it to deny traceability; the Tenth Circuit distinguished it as a case where plaintiffs alleged only loss of title, not a separate enforcement threat traceable to executive defendants.

3. Sovereign immunity and the scope of Ex parte Young

  • Ex parte Young, 209 U.S. 123 (1908), Verizon Md., Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635 (2002), Whole Woman's Health v. Jackson, 595 U.S. 30 (2021)
    Role: Provided the “straightforward inquiry” for whether a suit fits Ex parte Young: ongoing violation of federal law + relief properly characterized as prospective. The court held the landowners sought prospective relief against future enforcement, so the exception applied.
  • Edelman v. Jordan, 415 U.S. 651 (1974) and Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459 (1945)
    Role: The district court used Edelman to treat the requested injunction as a treasury-impacting compensation award. The Tenth Circuit rejected that characterization: the complaint sought to stop future uncompensated enforcement, not retroactive money; any fiscal effects from future compliance are ancillary and do not defeat Ex parte Young.
  • Knick v. Twp. of Scott, 588 U.S. 180 (2019)
    Role: Used to reject the district court’s “state exhaustion” rationale (the overruled Williamson County requirement), and to explain that a taking claim accrues at the time of uncompensated taking. The opinion also addressed (and limited) arguments that the availability of state compensation remedies is a sovereign-immunity bar to Ex parte Young suits seeking injunctive relief.
  • Williams v. Utah Dep't of Corr., 928 F.3d 1209 (10th Cir. 2019) and Couser v. Gay, 959 F.3d 1018 (10th Cir. 2020)
    Role: Recognized that states retain Eleventh Amendment immunity from damages in federal court where adequate state remedies exist, but the panel declined to extend that principle to bar the landowners from seeking prospective injunctive relief under Ex parte Young.
  • Teva Pharmaceuticals USA, Inc. v. Weiser, No. 24-1035, 2025 WL 2555552 (10th Cir. Sep. 5, 2025) (unpublished)
    Role: Persuasive authority supporting the distinction between (i) the availability of an Ex parte Young pathway to seek prospective relief and (ii) whether equitable relief is ultimately warranted given adequate legal remedies.
  • Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997), plus Va. Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247 (2011), Hill v. Kemp, 478 F.3d 1236 (10th Cir. 2008), Harris v. Owens, 264 F.3d 1282 (10th Cir. 2001)
    Role: Defendants argued the case was effectively a quiet-title/sovereignty-divesting suit. The court rejected that analogy: the landowners’ suit did not seek to divest New Mexico of territorial control or regulatory authority; it contested the scope of a public easement.

4. Rooker-Feldman limits

  • Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923) and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983), applied through Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280 (2005)
    Role: The court held Briones’s claim was not seeking review of a state judgment; the alleged injury was future enforcement of Adobe Whitewater, not the prior consent decree.
  • Bruce v. City and County of Denver, 57 F.4th 738 (10th Cir. 2023), Mayotte v. U.S. Bank Nat'l Ass'n, 880 F.3d 1169 (10th Cir. 2018), Campbell v. City of Spencer, 682 F.3d 1278 (10th Cir. 2012)
    Role: Provided the circuit’s framework emphasizing that inconsistency with a state judgment is not enough; the federal claim must complain of injury caused by the state-court judgment and seek its rejection.

5. The “judicial takings” template and pleading burden

  • Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 560 U.S. 702 (2010)
    Role: The court assumed (without deciding) the plurality’s judicial-takings framework: a court “takes” property if it declares that an established private property right no longer exists, but not if it clarifies previously unclear entitlements; and federal courts defer to state-court determinations when existence of the right is doubtful. On that framework, the landowners failed because they did not plausibly allege their exclusionary right was “established” pre-Adobe Whitewater.
  • Tyler v. Hennepin Cnty., 598 U.S. 631 (2023) and Phillips v. Wash. Legal Found., 524 U.S. 156 (1998)
    Role: Used for the proposition that “property” for takings purposes is informed by state law plus traditional principles, historical practice, and Supreme Court precedent—yet the complaint’s sources (agency proclamations, a later-invalidated regulation, and a short-lived legislative scheme) did not plausibly establish the claimed right.
  • Cedar Point Nursery v. Hassid, 594 U.S. 139 (2021)
    Role: Cited to recognize the centrality of the right to exclude, but the court stressed that easements limit exclusion and that the dispute was about the scope of an alleged preexisting public easement.
  • Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009)
    Role: Anchored the plausibility standard; the court held the landowners’ allegations were “merely consistent with” an agency misunderstanding, not plausible proof of an established property right.

B. Legal Reasoning

1. Reframing the “injury” for standing: enforcement threat vs. property-right loss

The district court largely treated the injury as the loss of the right to exclude, which it attributed to the New Mexico Supreme Court (a non-party), defeating traceability and redressability. The Tenth Circuit corrected the analytical target: in a pre-enforcement posture, the relevant injury is the credible threat of enforcement by officials with authority to prosecute or sue. Once framed properly, traceability follows because the defendants have enforcement power, and redressability follows because an injunction can eliminate (or reduce) the risk of official enforcement—even if private parties could also vindicate public rights.

2. Ex parte Young applies even when takings and compensation are in the background

The district court’s key sovereign-immunity move was to treat the requested injunction as implicitly compelling state compensation (a treasury payment) because officials must uphold the state constitution. The Tenth Circuit rejected that chain: if enforcement of Adobe Whitewater is unconstitutional absent compensation, officials are not obliged (or authorized) to continue enforcement; the state can either pay compensation and proceed or stop enforcement. The requested relief therefore remained prospective (halt future unconstitutional enforcement) rather than retroactive damages.

3. State remedies do not eliminate jurisdiction to seek prospective relief (though they may affect equitable entitlement)

The panel held the district court erred by importing an exhaustion requirement after Knick. It further declined to transform the existence of adequate state compensation remedies into a sovereign-immunity bar to seeking injunctive relief under Ex parte Young. The court treated “adequate legal remedy” as a merits/equity consideration (whether an injunction should issue), not a threshold jurisdictional blockade to filing the suit.

4. Avoiding the unresolved “judicial takings” question by deciding plausibility

Like many courts after Stop the Beach Renourishment, the panel assumed without deciding that judicial decisions can trigger the Takings Clause. It then disposed of the claim on the threshold substantive requirement embedded in the plurality’s approach: plaintiffs must show an “established” property right was eliminated, not merely clarified. The court emphasized deference to the state supreme court where the existence of the asserted right is doubtful.

5. Why the complaint failed: insufficient indicia of an “established” exclusion right in New Mexico streambeds

The landowners relied chiefly on:

  • Department fishing proclamations advising that streambeds were private absent permission;
  • A 2015 statute and 2018 implementing regulations requiring written permission to walk or wade onto private property via non-navigable public water.

The court found these insufficient, reasoning that proclamations are at most evidence of agency view (possibly mistaken), and the regulations were quickly invalidated in Adobe Whitewater, which itself characterized the public easement as preexisting and merely clarified. The complaint also lacked New Mexico case law affirmatively establishing the exclusion right the landowners claimed.

C. Impact

1. Litigation pathway impact: pre-enforcement constitutional challenges remain viable even when the underlying rule was announced by a state high court

The decision reinforces that plaintiffs threatened with enforcement may sue state executive officials with enforcement authority—standing does not evaporate merely because the contested rule is a judicial interpretation rather than a statute or regulation. Courts must assess traceability and redressability against the enforcement threat, not against the deeper causal origin of the rule.

2. Sovereign immunity impact: Ex parte Young remains robust for prospective relief in takings-adjacent settings

The opinion narrows a common state defense: that a takings challenge seeking to stop enforcement necessarily requires compensation and thus implicates the treasury. It also resists a jurisdictional “state-remedy” gatekeeping theory for Ex parte Young suits (while leaving open that adequate legal remedies might defeat equitable relief on traditional grounds).

3. Substantive takings impact: judicial-takings claims face a steep “established right” pleading burden

Even while sidestepping whether judicial takings exist, the court effectively signals that a plaintiff must plead strong, durable, and authoritative evidence that state property law had clearly recognized the claimed right. Agency guidance and a legislative/regulatory scheme later invalidated—without supportive state case law—may be inadequate.

4. Procedural impact: appellate affirmance on alternative merits grounds may occur even after jurisdictional dismissals

Although the majority stressed the dismissal remained “without prejudice,” the dissent highlighted practical concerns (amendment opportunity, limitations, and preclusion). Future litigants should anticipate that, where briefing permits, appellate courts may reach Rule 12(b)(6) issues notwithstanding a district court’s jurisdiction-only ruling.

IV. Complex Concepts Simplified

Public waters provision (N.M. Const. art. XVI, § 2)
A state constitutional rule declaring unappropriated waters of natural streams belong to the public and are available for appropriation for beneficial use.
Easement (public easement in water)
A nonpossessory right allowing someone other than the owner to use land for a limited purpose. Here, the dispute is whether the public’s easement to use “public water” includes incidental contact with the privately owned bed (walking/wading) when reasonably necessary for recreation.
Pre-enforcement challenge
A lawsuit filed before a law (or rule) is enforced against the plaintiff, based on a credible threat that enforcement will occur if the plaintiff engages in intended conduct.
Traceability and redressability
  • Traceability: the injury must be fairly caused by the defendants’ conduct (here, the threatened enforcement by officials).
  • Redressability: the requested court order must likely reduce or eliminate the injury (here, reducing the risk of official enforcement, even if not eliminating all disputes with private members of the public).
Ex parte Young
A doctrine allowing suits against state officials in federal court for prospective relief to stop ongoing violations of federal law, notwithstanding the state’s sovereign immunity.
Judicial taking
A contested theory that a court can “take” property by changing property law to eliminate an established property right. The Supreme Court has not definitively recognized it; this opinion assumed it arguendo and rejected the complaint for failure to allege an established right.
Rooker-Feldman
A jurisdictional doctrine preventing lower federal courts from acting as appellate reviewers of state-court judgments. It does not bar federal claims merely because they might conflict with a state outcome.

V. Conclusion

Sanchez v. Torrez establishes an important federal-courts framework for challenges to state enforcement of state supreme court property rulings: landowners facing a credible threat of enforcement have standing to sue enforcement officials, and Ex parte Young permits prospective injunctive relief notwithstanding sovereign-immunity defenses premised on compensation or state remedial availability. Yet on the merits, the decision underscores a demanding threshold for any would-be judicial-takings claim: plaintiffs must plausibly allege that the purportedly eliminated property right was established under relevant sources of law, not merely assumed by agencies or reflected in short-lived regulatory schemes.