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A cable strung across Shingle Shanty Brook forbids paddlers
to continue up the secluded stream. |
Adirondack rivers remain in legal limbo
By Mark Bowie
Upon crossing wild Lake Lila, where the wind piled waves between
headlands and rocky islands and where crescents of red-gold beach
stretched beneath great white pines, I guided my canoe into a riparian
sanctuary. It’s the one that author Paul (pen name for Pauline)
Brandreth lovingly called “the Enchanted Stream”—Shingle
Shanty Brook.
It is fascinating geography, a maze of meanders.
In places the convolutions literally bend back on themselves. For
a paddler to go forward he must go backward. I glided up the alder-lined
channel to the peaceful vocals of songbirds and waterfowl, past
beaver lodges and otter slides—until my reverie was broken
a few miles in by “No Trespassing” signs dangling from
wires strung across the brook.
I moored the canoe to the bank and contemplated my options. Could
I legally continue upstream? Does a landowner whose property sandwiches
a navigable waterway have the right to deny access to the public? And
what’s the legal status of other navigable but posted waterways
in the Adirondack Park: the Beaver, Moose, Oswegatchie, Grass, Bog,
Deer, St Regis, Jordan?
I headed back downstream.
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Map by Nancy Bernstein |
For the past one hundred years or so, this
brook and many other Adirondack waterways bounded by private lands,
once classic canoe routes, have been closed to the public. In the
19th century, rivers throughout the region and indeed the country
were considered public highways under common law. Adirondack promoter
and guidebook author W.H.H. Murray wrote in 1869: “The novel
and romantic peculiarity of this wilderness is its marvelous water
communication.…One can travel in a canoe or light boat for
hundreds of miles in all directions through the forest.” But
that soon changed.
Lumber companies purchased vast tracts of timberland along major
rivers and streams to float their logs to the mill. At first, the
waterways remained open to the public. But then these corporate
owners leased portions of their lands to fish and game clubs, which
posted them. Wealthy owners of large preserves also started posting
their lands.
Though contrary to waterway law in most of
the country, the state Department of Environmental Conservation
(DEC) later defended and the courts upheld the posting of previously
public waters. Paul Jamieson, author of Adirondack Canoe Waters:
North Flow and a crusader for recreational canoeing rights
in the Park, noted in 1978: “Though there is no title to running
water, state practice makes it possible for landowners and lessees
to prevent access to a navigable stream and to deny passage by posting
carry trails at waterfalls, dams, and heavy rapids or by prohibiting
use of the riverbed (often in private ownership in New York) for
tracking a boat through shoals.” Writer Chris Angus added
in Reflections from Canoe Country, “If an individual
happens to own half an acre on both sides of a rapids that requires
a ten-foot carry, miles of navigable waterway are effectively shut
down to recreation in perpetuity.”
Jamieson underscored the irony: “The canoeist’s range
is more restricted inside the Adirondack Park, founded in 1892 ‘for
the free use of all the people for their health and pleasure,’
than outside. North of the Blue Line, where nearly all riparian
land is private, we boat freely on our streams with access and exit
at any highway bridge.”
CANOEISTS CHALLENGE POSTING
In 1991, the practice of posting waterways was challenged by five
canoeists who ventured down the South Branch of the Moose River
through property posted by the Adirondack League Club. They were
sued for trespass. In a recent Adirondac, the magazine
of the Adirondack Mountain Club (ADK), the club’s attorney,
Neil Woodworth, and Marisa Iannacito summarized the outcome of nearly
a decade of subsequent litigation: “In 1999 New York state’s
highest court, the Court of Appeals, decided unanimously that suitability
for recreational canoeing and kayaking can establish that a river
is navigable in fact and thus open for public use. The court also
agreed with ADK’s contention that the right to navigate carries
with it the privilege to make use, when absolutely necessary, of
the bed and banks of the stream, to portage and scout.” Still,
one can’t stand in a posted river or on its banks for recreational
purposes, like fishing or sightseeing. The streambed remains private
property.
There are other restrictions. For instance,
Woodworth and other lawyers say the public does not have the right
to paddle a river to a posted “keyhole” lake or pond—one
with a public entrance but otherwise no exit. One such waterbody
is Shingle Shanty Brook’s headwater, Shingle Shanty Pond.
Therefore, the posting of the final nine miles of the brook to the
pond should be respected. (At least for now: The Adirondack Nature
Conservancy bought the lands bordering Shingle Shanty Brook in 2000.
Discussions toward a deal for public access are ongoing with the
Brandreth Park Association, which had owned and still retains the
tract’s recreational rights.)
Can boaters legally paddle a river that merely passes through posted
land? The answer is—a conditional yes. The Moose River ruling
is silent on other waters. It rendered a decision specific to the
litigants and evidence in that case. Woodworth notes: “The
Moose River decision established the test. But in any litigation
that involves questions of law and fact, you have to then take the
law and apply it to the waterway in question” on a case-by-case
basis. Nevertheless, the Moose decision was a landmark victory for
canoeing rights, for it established the guiding principle: If a
waterway is navigable for a good portion of the year, the public
has the right to paddle it.
Yet who decides if—and when—a river is navigable? The
court’s determination of navigability for the Moose was quite
specific: The public has access to the stretch traversing the Adirondack
League Club lands only from May 1 to Oct. 15 and only if a nearby
river gauge registers 2.65 feet within 24 hours of the trip.
There are no state regulations—no official list—declaring
which waterways are deemed navigable and open to the public. So
the navigability of posted rivers such as the Beaver, Jordan and
St. Regis remain subject to interpretation. Since these rivers have
been canoed in the past, there is a strong presumption that they
are navigable, but there has been no official determination to that
effect. Canoeists who force the issue by paddling through posted
property run the risk of being arrested or sued. Another option
is to petition the state Supreme Court to issue a declaratory judgment,
ruling on the navigability and access status of a particular river
or rivers.
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Map by Nancy Bernstein |
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Both alternatives, however, could be expensive
and time-consuming.
The debate over recreational canoeing rights is illustrated by incidents
on the Beaver and the Jordan. On both, paddlers have encountered
patrols and, at times, contentious caretakers or landowners. Bill
Frenette, a longtime paddler and conservationist, mentioned that
a landowner and a kayaker sued one another over a tussle on the
Beaver. (Blows were exchanged when the owner challenged the intruder.)
He also recalled other encounters with people patroling private
lands along the Jordan. Once, Bill and a companion had paddled through
a gorge. They saw a man sitting on a ridge on private property.
Bill called, “Hey, what are you doing up there?” The
man replied, “Waiting for you. There’s a big spruce
[blocking the stream] up ahead and when you get out of your boats,
I’m going to arrest you.” Fortunately, the paddlers
had already received permission to use the river, so the impasse
was amicably resolved.
Can DEC take the initiative to create a list of publicly accessible
rivers and then regulate their usage? It happens that the agency
had been compiling such a list before the Moose River case, but
stopped the project pending the court ruling. It was never re-started.
In recent years, DEC and environmental groups have pursued non-confrontational,
non-litigious options to reopen historic canoe routes, notably strategic
land acquisitions and recreational easements. “We’ve
been using the willing-seller approach and asking for state support
in acquiring these waters,” Woodworth says. Judging from recent
purchases, the approach has been a resounding success.
LAND PURCHASES OPENS HISTORIC ROUTES
Consider the 1998 deal with Champion International, in which the
state purchased 30,000 acres of timberlands outright and acquired
recreational easements on another 110,000 acres. The deal opened
up the Oswegatchie, Grass, Deer and St. Regis rivers, Quebec Brook
and the Madawaska Flow. The Tooley Pond Tract, arguably the
crown jewel of the deal, encompasses much of the South Branch of
the Grass River in St. Lawrence County. The entire branch is now
open, though land access to the stretch through Massawepie Mire
and Grass River Flow is closed from June 15-Aug. 31 while the Boy
Scouts hold camp. The section from the Route 3 bridge downstream
to Rainbow Falls is canoeable except for several gorgeous waterfalls
“virtually unknown to the public,” Jamieson once wrote.
Earlier that same year, the state acquisition of 15,000 acres around
Little Tupper Lake—now part of the Whitney Wilderness—opened
a long-lost canoe route from Little Tupper to Lake Lila. It follows
a series of ponds and makes use of a piece of Shingle Shanty Brook. The
Whitney family still owns 36,000 acres with a number of lakes and
streams, to which public access is forbidden. One of them is
Big Brook. Although canoeists can enter the brook at Route 30 for
a 4.7-mile downstream joyride to Long Lake, paddling upstream to
Slim Pond—a “keyhole pond”—is prohibited.
The ultimate goal of conservationists is for the state to acquire
the entire Whitney Tract.
In 2002, the Adirondack Nature Conservancy purchased over 26,000
acres from In-ternational Paper, including one tract that contains
Bog Lake and Clear Pond and another that encompasses Round Pond.
When transferred to the state, the acquisitions will provide canoe
access from Lake Lila to Lows Lake and from Little Tupper via the
Bog River to Tupper Lake.
Environmental groups continue to work with the state to acquire
choice waterways. Last year, the Open Space Institute’s purchase
of the Tahawus tract opened public access to Henderson Lake and
the Preston Ponds, which will eventually be transferred to the state.
But why purchase waterways that are obviously navigable in fact
and therefore open to the public? Put-in and take-out access,
for one. But there’s much more. Acquisitions give paddlers
the right to camp, fish and picnic on the banks. As Woodworth says,
“Because we get, in effect, the full bundle of recreational
rights, ADK has chosen that route, for now, over the declaratory
judgment route.”
Paddlers have come a long way since the days when Paul Jamieson
complained about the many closed waterways in the Adirondacks. Thanks
to the Moose River ruling and a number of beneficial land deals,
canoeists can now paddle through the riverscapes of the early Adirondack
explorers. As with Shingle Shanty Brook, forward progress is sometimes
made by looking back.
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