Paddlers face Catch-22

Catch 22

By PHIL BROWN

The common-law right of navigation presents paddlers with a Catch-22: You can’t paddle a waterway unless it’s navigable, and you can’t prove it’s navigable unless you paddle it.

And even if you do paddle it, you can’t be absolutely certain of its legal status.
Consider the route I took from Mud Pond to Shingle Shanty Brook, going through the lands owned by Friends of Thayer Lake. Apart from one short carry around a dam and some rapids, I was paddling the whole time. Since the law allows portages around dams, rapids, and other obstacles, you might think there would be no question about the legality of the trip.

But the legal sense of navigable is not quite the same as the word’s everyday meaning, though there is a lot of overlap. Among other things, the law takes into consideration whether a waterway is navigable in its natural state (as opposed to an impoundment), whether it’s part of a longer canoe route, and how much of the year it can be paddled.

Under the current law, only a court can decide if a waterway is navigable in the legal sense, according to Kenneth Hamm, an attorney with the state Department of Environmental Conservation (DEC). Absent such a ruling, he said, “a person doesn’t know whether a waterway is navigable or not.”
Since no court has ruled on the navigability of the Mud Pond-to-Shingle Shanty route, what’s a paddler to do?

Based on my account of the trip, two legal experts said they believe that the route is navigable under the law.

“The very fact that you canoed it is very strong evidence that it’s navigable and should be open to the public,” said John Humbach, a Pace University law professor who co-authored the pamphlet “Public Navigation Rights in New York State.”

“It sounds like it’s completely legal to me,” said Charles Morrison, the pamphlet’s other author.

When Morrison worked at DEC, as the director of natural-resources planning, the agency drew up a list of potentially navigable waterways. That list, he says, included Shingle Shanty Brook. Drafted in 1991, the list was to accompany legislation clarifying navigation rights, but since the bill died, the list was never released. Now retired, Morrison has helped draft similar legislation that he hopes will be passed next year.

The Adirondack Nature Conservancy sold the land to Friends of Thayer Lake in 2007. The buyer had ties to the Brandreth Park Association, which had long owned the recreational rights to the tract. The conservancy included a clause in the deed declaring that the public has the right to navigate the “surface waters” of Mud Pond, its outlet, and Shingle Shanty Brook downstream from the outlet.

In the past, Dennis Phillips, the Brandreth Park attorney, has asserted that the clause is null. Because the conservancy did not own the recreational rights, he said, it could not convey to the public any of these rights—in this case, the right to paddle.

Nonetheless, Humbach, Morrison, and Hamm all agree that if the waterways are navigable under the law, the public has the right to paddle them regardless of who owns the property’s recreational rights. “There’s no way that deeded rights for recreation can supersede the rights of public navigation,” Morrison said.

The Explorer contacted Phillips for this story and offered to publish a statement from the Brandreth family (the extended family comprises the Brandreth Park Association). After consulting with the family, Phillips conveyed the following: “The family has considered the matter of a statement, and it has decided to make no comment at this time.” He said he was not authorized to say anything more.

But one family member, Norm McDonald, did offer an opinion about the Mud Pond-to-Shingle Shanty route in an interview with the Explorer. “From my personal point of view, it is probably something that should be available to the public to paddle,” he said. “The rest of the family might feel differently.”
McDonald, a former president of the association, stressed that the public should not be allowed to paddle upstream on Shingle Shanty Brook beyond the Mud Pond outlet. The brook penetrates deep into the Friends of Thayer Lake tract—land designated as a preserve for scientific research.

The bottom line: until the matter is settled, each paddler will have to make up his or her own mind whether to ignore the chain and posted signs and follow in my wake.

“If they are timid, they should not do what you did,” Humbach said. “If they do not like people trampling on their rights, they can do exactly what you did.”