FacebookTwitterInstagram Youtube
Adirondack Explorer

Categories:
Tuesday, August 10, 2010

Case against Ausable Chasm paddlers dropped

Ausable Chasm is now open to whitewater paddlers.

Ausable Chasm is now open to whitewater paddlers. Photo by Seth Lang.

No charges will be pursued against three kayakers who paddled through Ausable Chasm in June, the Explorer has learned.

The Ausable Chasm Company complained that the three trespassed on the company’s land on the first weekend that the river was declared open (against the company’s wishes) to whitewater paddlers.

Based on the company’s complaints, state troopers filed “a request for a criminal summons” in the Chesterfield Town Court, according to State Police Captain Brent Gillam. However, Gillam said it was up to the town judge to decide whether to press charges.

Today, Gillam said troopers ended up making no arrests and considered the case closed.

A spokesman for the town court confirmed that no charges were filed.

“It’s not something I would be interested in pursuing, based on the federal court cases,” Gillam said. He added, however, that the judge made the decision to dismiss the case.

Paddlers waged a long legal battle to win the right to kayak through the chasm. This includes the right to portage around rapids and other obstacles and to scout the river.

Read my earlier post for more background about the controversy that erupted on the first weekend of paddling.

Phil Brown

Contributor Phil Brown was editor of the Adirondack Explorer from 1999-2018. When he isn't at his desk, he's usually out hiking, paddling, skiing, or doing something else important.

17 Responses

  1. William Redhawk says:

    A victory for the public. We all thought the days of the land barons were over, yet here is someone (Ausable Chasm) who charges a fee to view a natural wonder that was not of their creation, and compound it by trying to deny others the opportunity to enjoy what Mother Nature herself has created.

    Ironically, the chance to see WW paddlers may increase their business, which would undeserved.

  2. Pete says:

    I wonder if all the people who commented on the original post, screaming about property rights, will be back with a more humble tone, now that a (local) judge has pretty well disposed of their arguments

  3. Jake says:

    Come on people…I am an avid fly fisherman..have fished right there…OWNING THE WATER IS DEMENTED…..WHY…fining people for paddling or stepping out to scout is crazy…..CRAZY….think I may paddle through just to spite them.

    Using Fedearal Cases to compare..come on…….

  4. Paul says:

    Pete, I am back. Phil, were there specific court cases that involved the navigability of this particular stretch of river?

    Pete, it doesn’t sound like the judge threw out the case based on the “common law” that we were discussing previously. But I could be wrong and maybe those cases related to common law are what he based his decision on. If that is the case than this is a somewhat significant result for paddlers. Phil, what are the “cases” the judge is referring to? Thanks.

    Pete, I never said previously that this isn’t something that should be settled by the courts, in fact I have said specifically that this is where the dispute belongs.

    Also, do these “cases” allow for fishing on public easement waters open for navigation? That isn’t “demented” it is the law. The common law right of navigation does not allow fishing on private land where there are waters that are NIF under the common law. That has been specifically challenged and soundly defeated in court.

  5. Phil says:

    Paul, I was told by the court clerk that the state police did not want to prosecute the case. The captain I spoke with, though, said the decision was up to the court. Bottom line, I think, is that neither the police nor the court thought the paddlers violated the law. I have not read the federal court cases in question, but like the state’s common law, it allows paddlers to portage and scout rivers.

  6. Paul says:

    Phil, Thanks. I was just curious if there were specific cases related to that stretch of river. If there are NOT then I think your position regarding the common law is supported by this incident. If there were cases that defined the NIF of this river then it is a different story.

  7. Paul says:

    Phil, I saw this recently in an NCPR story:

    “After lengthy legal wrangles, paddlers won access to the rapids, which include some class five drops.”

    To me that does not sound like the judge just used the common law to form a decision here? I could be wrong.

    The argument against treating any Navigable river as a Navigable-in-fact river are supported if a “lengthy legal wrangle” was required.

    Your argument has always been that the Moose River Case and a few others before it have secured paddlers the rights to paddle any private stretch of river under the common law. If this stretch required additional court action then your argument is weakened in my opinion.

    More cases like this will help define the issues in the future.

  8. Phil says:

    Paul, I don’t know the legal background. Apparently, American Whitewater obtained access to the chasm via FERC’s relicensing process. I assume access was granted in accord with federal court cases, but I don’t know if those cases pertained to the Ausable specifically or to other rivers. My stories about Shingle Shanty, Beaver, etc. were based on common law as interpreted by state courts. I don’t think federal rulings would apply to these rivers as they, apparently, fall outside federal jurisdiction. From what I gather, though, the feds have a similar view of navigation rights in that portaging and scouting is allowed.

  9. Paul says:

    Phil, thanks again. Maybe the cases specific to this regarded access issues (how to get to the river). That could mean that the judge here had to make a decision regarding whether there was trespass based on the common law (and other court rulings). That is good for paddlers if that is the case. I think in court it would be upheld that the Ausable River is NIF if someone wanted to go the distance. Can’t say for sure but it probably would.

    In my earlier posts I was questioning whether the common law would allow the paddlers to be as far away from the river as was described in the story. I thought that someone was a half mile from the river? Phil, do you think that it is fair to the landowners that safe passage requires paddlers to be one half mile onto private property?

  10. Phil says:

    Paul, those paddlers who wandered from the river said they were confused by the rope strung across the river. They thought the rope meant they were supposed to exit there. When they learned their mistake, they got back in their boats and continued downriver.

  11. Paul says:

    Okay, so landowners know what to expect. Under normal conditions how far can they expect paddlers to travel on their land? If a paddler was this far from the river without the “rope” issue they could and should be ticketed correct?

  12. Phil says:

    Paddlers are supposed to intrude on private land only to the extent necessary. How that’s interpreted will depend on the circumstances of a given case.

  13. Paul says:

    Phil, sounds pretty open ended. Could keep the lawyers pretty busy and keep their coffers filled! I assume that the paddler gets to determine the “extent necessary”. In this case (without the rope issue) what would have been necessary? Phil, you have lots of experience. What is the farthest that you have ever had to be from a river to get around an obstacle safely? These are fair questions and ones that will help to avoid any paddler/landowner conflicts so I think it is good to discuss this. At some point the paddler cannot use the easement to allow them to trespass. The important question is where is that line? Back in the day when the common law was mostly keeping boats, or logs, or barges in the river this wasn’t much of an issue but know we need to know what everybody is allowed to do.

  14. Paul says:

    Phil, This site seems to outline some of the issues regarding access:

    http://www.americanwhitewater.org/content/Project/view/id/Ausable/

    So if this site is correct, Dam owners are required to allow the public to access a river at their property? Is this correct? If it is I would assume that you can access any river at a dam and travel to the next dam under the common law? You can also intrude onto private land to whatever extent necessary to facilitate this travel. Interesting. It doesn’t sound like you need public land to legally access a river. Phil, is that why you always say as long as it is “legally accessible” rather than accessible by public land?

  15. Phil says:

    Paul, I am not sure what the law says regarding dams. My guess is that the site is referring to power dams. Apparently the feds require power companies to allow public access to rivers as a condition of their FERC license.

    I don’t think the minimally intrusive standard is more vague than many other legal standards. What does “reasonable doubt” mean?

  16. Paul says:

    Phil, that is an interesting comparison. When you talk about “reasonable doubt” you are talking about the legal burden of proof. In that case it specifically places that burden on those who bring the charges against a person. Here we are saying that perhaps the person committing what could be trespass is given the burden of defining what constitutes their trespass. I am not sure that is fair to the landowner. I know that I would give myself plenty of leeway if I was accused of trespass in situation where I got to decide where the line was! It certainly gives the paddler a lot of room to wiggle don’t you think? What about my question, you are an experienced paddler, what is the farthest you have had to get from a river to get around an obstacle? I am also a pretty experienced paddler I have rarely (if ever) had to be out of sight of a river. Certainly not hundreds of yards from the shore. Personally I don’t consider shooting down rapids like these to be the safest way to get around this “obstacle” but I guess it is fun if you know what you are doing! I think there is too much gray areas here.

  17. Paul says:

    Phil, BTW Thanks for following up on this story. So many times it seems like the discussion starts and then we never find out what happened later.

Leave a Reply