Navigating the law
By Mary Thill
Most Adirondack paddlers have heard at least part of this story. On June 15, 1991, four canoeists and one kayaker took a bumpy trip down the South Branch of the Moose River. The 50,000-acre Adirondack League Club, which owns both sides of the river for 12 miles, sued them for trespass.
The case dragged on for seven years through three courts and ended in a ruling from the Court of Appeals, New York state’s highest tribunal, that affirmed paddlers’ long-ignored right to ply navigable rivers regardless of who owns the riverbed or banks. The ruling also restated the centuries-old tenet that paddlers can walk on private land to portage around dams, rapids and waterfalls.
But the decision never said which rivers are “navigable in fact,” a legal term applied to rivers open to the public. The Court of Appeals wouldn’t even make the call on whether the South Branch of the Moose is navigable in fact. A settlement between the landowner and paddlers in 2000 forged a compromise that lets the public canoe the river May 1 through October 15 when water levels are high enough to float a boat. (The settlement doesn’t admit the river is navigable in fact either, even though, a dozen or so people now navigate it every year.)
Continuing confusion about such semantics partly explains why, 10 years after the court ruling, landowners have not witnessed a rush of hoi polloi floating down once-forbidden rivers or pushing to open still-disputed ones. Also, a flood of new Adirondack paddling opportunities may have diluted demand.
“The situation is in great danger of gradually drifting back to the point it was at before Paul Jamieson started his prolonged efforts,” said Charles Morrison, presenting a paper at the 2005 conference of the Adirondack Research Consortium in Lake Placid.
Morrison, who retired as the state Department of Environmental Conservation’s director of natural resources planning in 1995, is carrying forward the patient crusade of the late Jamieson, who began to press for river access while researching his guidebook, Adirondack Canoe Waters: North Flow, first published in 1975. Jamieson maintained that 25 water trails in the northwestern Adirondacks had been closed illegally by riparian landowners.
“One might think that with the recent Moose River case still fresh in memory, this could not happen,” Morrison continued. “However, the nature of this right is still obscure to most people, even to interested paddlers and landowners.”
In an attempt to fill the information vacuum, the Association for the Protection of the Adirondacks in 2006 issued a 15-page brochure titled “Public Navigation Rights in New York State.” The pamphlet, which Morrison co-authored with navigation-law expert John Humbach of Pace University, does answer many questions, but it does not list which rivers are open or closed.
Then in June 2008, with Morrison and Humbach’s input, Department of Environmental Conservation (DEC) attorney Kenneth Hamm published an article in the agency’s magazine, The Conservationist, describing paddlers’ rights in the simplest and most access-affirming terms yet, including this passage: “Waterways subject to the public right of navigation can be navigated for any commercial or recreational purpose, and attempts by landowners to interfere with the public’s right to freely navigate violates the state’s trust interest in the waterway.”
The common-law right to move freely on New York waters predates the establishment of the state in 1777. Paul Jamieson wrote that when tourists and settlers first began traversing the Adirondacks in the early 19th century, lakes and rivers were their highways. Around 1880, however, owners of large private parks began posting waterways. Law enforcement, unaware of the common law, took the landowners’ side in trespass charges. This went on for a century, until Jamieson and others began pressing for restoration of riparian passage, culminating in the Moose River decision.
Common law is not found in statute books. Rather, in New York it is inherited from British law as interpreted by state court decisions. Morrison says he’d like to see the common law codified in statutory law. “What we need is a straightforward, simple statement about what is the public right of navigation,” Morrison says. “These [booklets and articles] don’t live on. Unless we put it right in law it’s going to get lost again.” A navigation bill has been introduced into the state Assembly this session, and a Senate counterpart was expected to follow.
One thing that might still make paddlers hesitate to try new rivers is the $5 million in damages that the Adirondack League Club initially sought from the Moose River Five. It shouldn’t, says Tom Kligerman, one of the canoeists on that trip. A judge eventually dismissed the punitive request, and Kligerman says money did not weigh on him in the nine years between civil trespass charges and settlement.
“All of the attorneys on the side of the paddlers were working pro bono,” he says. And boat-maker Pete Hornbeck of Olmstedville donated a canoe for a raffle that raised $3,000 to pay for incidental expenses. “It was a very popular issue at the time,” Kligerman remembers.
If anything, the Moose River case has had a more chilling effect on landowners, he says: If the wealthy and well-lawyered Adirondack League Club could not make a trespass charge stick, then who could?
Kligerman thinks there are other reasons boaters appear not to be challenging still-disputed rivers. “The biggest story in the Adirondacks [in the last decade] is the incredible number of new acquisitions,” he says.
In a 1988 article in Adirondack Life, Paul Jamieson listed 21 waterways that were inaccessible for various reasons. Two-thirds of them—including long stretches of the Grass and Raquette rivers, Preston Ponds, and a circuit linking Little Tupper Lake, Round Lake Outlet, Lows Lake and Lake Lila—have since been opened after timber companies sold hundreds of thousands of acres of land and easements to the state, the Nature Conservancy and land trusts. Also, the Northern Forest Canoe Trail from Old Forge to Maine has been completed, with detailed maps. Paddlers have plenty of new places to explore.
But the question still outstanding is: When is a stream navigable?
Though some disagree, Morrison contends that the Assembly bill simply clarifies existing law. The pending legislation states that a waterway is navigable in fact
“even if it is not capable of being navigated against its current and even if the capacity of the stream for supporting navigation is not continuous over time, as long as the capacity necessary to support navigation continues for a sufficient length of time to make the stream useful as a highway for trade, travel or transport. A waterway may also be navigable in fact even though it contains occasional rapids, falls, dams or other natural or manmade obstructions.”
The Beaver River between Lake Lila and Stillwater Reservoir and the West Branch of the St. Regis River downstream of the St. Regis Canoe Area are two through-routes that connect popular canoeing destinations. They would seem to be irresistible bait for trippers wanting to open a route. The rivers are similar in that long stretches of the banks are owned by landowners known not to want people passing through. Also, both are said to be difficult—crisscrossed by fallen trees, fast at high flows but bony in low water. Opinions differ on whether these rivers could be called “navigable in fact.”
Kligerman has scouted the West Branch of the St. Regis from the air. “I’d call it a smaller version of the Moose, with riffles, rocks, some flatwater,” he says. Although the law allows a paddler to get out of the boat to scout or carry around obstacles, it does not allow you to camp, picnic or engage in other activities that don’t further progress along a stream. A canoeist would have to complete about 40 miles—some of them very slow miles—of the West St. Regis through a 20,000-acre private park and several hunting clubs in one day.
“That’s the longest section of river that travelers can’t get to functionally or legally at this point,” says Don Morris, a whitewater master to whom Jamieson transferred authorship of new North Flow editions. One of the West Branch property owners did not respond to a request for comment.
The Beaver stretch is shorter, about seven miles. Morris and a friend tried it a few Junes ago. He describes some sections as 40 feet of paddling followed by 40 feet of walking kayaks over slippery rocks. Not fun. He calls it “marginally navigable” but thinks it might make a decent run in May, after snowmelt. Kligerman, who ran it on May 5, 1991, says he never had to get out of the canoe. But does that make the Beaver “navigable in fact”?
The owners don’t think so. “I know every foot of that river, and it is a rock field for three quarters of a mile,” says Linn Feidelson. “In my opinion it is not navigable.” She and her cousin Chris Davis, who own adjacent sections of the river, agree with Morris that at its highest levels the river could carry a boat. “For a few days of the year—not weeks, but days,” Davis says. Again, the common-law test is open for interpretation: What is “a sufficient length of time” to make a stream useful for travel, and therefore public?
As far as paddling the Beaver, Feidelson believes the law is on her side. “I consider it trespassing,” she says. “Trespassers can be prosecuted.”
Word among canoeists and kayakers is that hunting clubs scattered along the East and Middle branches of the St. Regis frown on river travel but are resigned to it. In 1998, the state bought stretches of both rivers from Champion International, including a long, flat piece of the Middle Branch bounded by private land on either end. Carlisle Van Deusen, a member of the McCavanaugh Pond Club, knows of one party that tried to paddle through the club’s property. They got hung up on some rocks, and club members helped them retrieve their canoe and head back upstream. Since that section of river “isn’t very conducive to paddling” in his opinion, Van Deusen says the sportsmen’s club hasn’t “had a problem.”
A stretch of Shingle Shanty Brook, which flows into Lake Lila, is another waterway in dispute. Dennis Phillips, an attorney for Shingle Shanty Preserve, insists that canoeists are not allowed to carry around a natural rock dam separating Mud Pond from Shingle Shanty Brook—a portage of a few steps that would save paddlers a mile-long carry on the traverse from Little Tupper Lake to Lake Lila. Yet the Moose River case seems to affirm the public’s right to go around such obstacles.
It doesn’t help that some landowners act like the court case never happened, Charles Morrison says. Intentionally or not, “these guys are still out there spreading confusion.”
While Morris and Kligerman know the law as well as the terrain, most of us remain less sure where we can go. Some advocates are calling on DEC to develop a list of navigable streams that are open to paddlers. In fact, in the late 1980s and early 1990s, the agency was compiling such a list to accompany navigation-rights legislation, but the effort was abandoned. DEC spokesman Lori Severino said it would be “inappropriate” to release the list. “It would give the public a sense that the list, which has had no public review or comment, is the final say with respect to the navigability of waterways,” she said in an e-mail.
The list would also need years of updating to be made current with court decisions and new acquisitions. But Morrison says a list need not be set in stone: Routes could be added or subtracted as they are field-tested or contested by landowners or paddlers. “At least describe the ones that are absolutely open,” Kligerman suggests.
Kligerman thinks there’s another reason the Moose River case has not initiated a renaissance of exploration. “You have to look at maps and know what you are doing,” he says. “The types of rivers that were posted or closed were the ones that required some toughness.”
Or maybe the tough are expanding their interests. In the past two decades, shallow-draft kayaks designed for little streams that are runnable only after a big rain or melt have grown in popularity. Standards of navigability should take into account how “extreme” paddlers see things, Morris says. “For example, Class 5 kayakers doing steep creeks and diehard explorers willing to carry numerous beaver dams and wade through alder swamps—there are quite a few of these people.” Those deciding on navigability should type “steep creek” into youtube.com to see what kids are up to nowadays, he suggests.
Individual members of the Adirondack Landowners Association (ALA) may hold different views on the issue, but overall, recent court cases have brought some clarity to a confusing issue, says Ross Whaley, an adviser to the group, which comprises families and clubs that own large tracts. “If a stream is navigable in fact, then canoeists have a right to travel through. That’s common law. Period,” he says.
But ALA would rather not see riparian rights codified in statutory legislation, Whaley adds. There’s concern that the bill in the Assembly might expand public rights beyond the common law, he says, especially if shades of meaning are read into the word “recreation.”
“There is clearly a right to navigate as recreation, but it doesn’t give you the right to navigate and recreate,” Whaley says. Recreation could imply fishing, or travel by inner tube or Jet Ski, for example, two crafts that “were not designed for travel from point A to point B.” Charles Morrison, who is helping line up support in the legislature, responds that fishing has nothing to do with the public right of navigation, and that “vessels” are defined in the bill.
Also, ALA is wary of a clause that would give the DEC commissioner the right to “identify and designate waterways that are navigable in fact.” The group would like to see a more-inclusive process, such as public hearings, to help make those determinations.
“Basically this bill is just a restatement of longstanding common-law public-navigation rights as embodied by case law,” Morrison says. “The legislation is not trying to extend the public right in any way or to change it.” If that’s the case, then Whaley says the bill should also be clear about what paddlers do not have the right to do.
For example, common law developed to ensure through-travel for commercial transport of goods. It does not appear to address the possibility of following a stream into a privately owned, or “keyhole,” pond, Whaley says. Passing from Little Forked Lake into Forked Lake or from Big Brook into Slim Pond, in Whitney Park in the town of Long Lake, are two examples.
Morrison agrees that “if you’re navigating into a dead-end pond, then you’re on very iffy ground.” In order to be clear, though, he argues that the bill should be brief and not stray into untested territory or other issues he sees as separate, such as extreme whitewater kayaking. “How can you say what the rights are not?” Morrison asks. “It’s a bottomless pit.”
Some landowner concerns have not changed since the 1990s: They worry about privacy, littering, having to rescue the shipwrecked, the difficulty of catching scofflaw hunters and campers, and invasive species carried on outside boats. Some paddlers suspect landowners will try to stall the bill because they prefer the messy paper trail and the inhibiting effect it has on the public.
All in all, though—with a few exceptions—landowners and paddlers are in broad agreement on the law and rules of etiquette.
When Don Morris has to climb out of his kayak to scout a drop from shore, he says he’s apologetic to landowners he encounters, and most of them are gracious. “Being nice and polite gets you a lot of mileage in my opinion,” he says. Riparian owner Chris Davis agrees, advising, “It’s not a bad step to try to contact the landowner” to ask permission before paddling through private land.
Paddlers still dream of rediscovering waterways long off limits to the public, where the issue is getting to the water. Morris singles out the Upper Independence and Jordan Rivers as well as all of Long Pond Outlet. By and large, though, they aren’t sneaking across private land to reach them. Most access skirmishes nowadays hinge on other issues. The Adirondack Mountain Club and American Whitewater, a national organization, have been battling for years with New York State Electric and Gas for the right to use the utility’s land to get to a Class 4 multi-drop stretch of Upper Ausable Chasm on the Ausable River. And whitewater groups want to open segments of rivers below dams–such as the Bottom Moose, Stone Valley on the Raquette, and sections of the lower Beaver–during planned releases.
Tom Kligerman still isn’t entirely sure how to sum up why excitement about Adirondack paddlers’ rights has faded since the intensity of the 1990s. “Maybe it was a relatively small number who were interested,” he muses. “Or maybe it was the righting of a wrong.”