Posted Sign Do's and Don'ts
by Mary Thill
Q. May a hunter who has wounded game pursue it onto posted property?
A. Only if permission has been granted by the posting party.
Most hunters know this. But when it comes to the Posted signs themselves, landowners don't always know there are rules guiding the information they put on them. We didn't know either, until a friend of the Almanack sent us this link to a handy New York State Department of Environmental Conservation site.
It’s a helpful page for landowners and hunters, with information on trespass law and liability, but as our friend pointed out, the section on navigation rights could be improved. A few word-tweaks would help clarify this widely misunderstood section of state law. First, get rid of references to “mean high water mark,” which have no bearing on the legality of through-travel on a river. And this friend suggests starting the discussion this way:
Q. May a person travel in a boat or canoe on a waterway which is posted?
A. Yes, but it is illegal to post a waterway against specific navigational activities such as canoeing, kayaking, boating, etc. if the waterway is “navigable in fact” under common law criteria.
There are a few unmistakably navigable rivers in the Adirondacks that are still posted, whether by honest mistake or by intent. The sign pictured here is appropriate for most boundary lines, but facing upstream on a navigable river, as it was on the East Branch of the St. Regis River in June, it confuses if not intimidates paddlers. The landowner, contacted this summer, says the sign came with the property when he bought it in the 1990s and he has no intention of replacing it or changing the wording.
For more information on posting in New York, here is the pertinent section of state Environmental Conservation Law. For more information on public rights of navigation, see this brochure by the Association for the Protection of the Adirondacks.
[Post-publication addition: Flickr has a group called "No Trespassing!" featuring Posted signs. The Almanack has added four Adirondack signs, including historical ones, from Lake George Islands, Tahawus, Whitney Park and the East Branch of the St. Regis River. But we don't endorse the group manager's incitement to trespass. UPDATE: We quit that group (see comments). You can now see vintage Adirondack posted signs among this Flickr group of Adirondack signs.]
46 Comments:
The question of "navigable in fact" remains just that a "question". I would argue that this sign is appropriate for this river. I have canoed it WITH the permission of the previous owner. There are stretches that I think would fall outside the definition of NIF. There are still questions on what is NIF. That was the whole reason for the Moose River case. That is also the reason that the DEC will not draft a list of rivers that meet the definition of NIF. They all need to be handled on a case-by-case basis. Otherwise the lawsuit would have simply been dismissed.
I will point out that I am afraid the attitude of some folks that don't like these signs can be summarized in a quote I found from the spot where this sign photo was posted, I think this shows where they are really coming from:
Remember kids, if the sign says "No Trespassing" there's probably something worth seeing across the fence. So take a chance and go see what there is. You might get shot, or you might get an award winning shot. You will never know until you try. Photos MUST feature a "No Trespassing", "POSTED", "Warning" or otherwise declarative remark about the property to be posted in this group.
Anonymous,
I spoke with the current landowner this summer and he agrees, not enthusiastically, that the river meets "navigable in fact" criteria. Here is the DEC's description of those criteria, derived in part from the Moose River case, from a 2008 article by staff attorney Kenneth Hamm: "Determining whether a stream is navigable-in-fact requires considering all the facts that could make it navigable. This includes: Are water levels high enough to support navigation for a reasonable length of time under conditions of natural flow? Are there obstacles to passage (such as shallows, rapids, or waterfalls)? If so, are portages feasible to allow passage? If the waterway is navigable for a significant part of the year and for a substantial distance, it is likely navigable-in-fact. If a waterway satisfies all the criteria for being navigable-in-fact, it is open to public use regardless of whether a court has ever ruled that particular waterway is navigable-in-fact."
I have sympathy for private landowners and hope that paddlers do not abuse their rights, but the rights are what they are.
We stated our distaste for the Flickr "No Trespassing" group's endorsement of trespass, but joining it muddies things. I'll remove the photos from that site. Thanks.
Thanks for post publication addition. I actually find these old signs to be very cool. The person hosting that post just appears to be a bit of a nut!
You list the DEC description here, which is part of the picture, but people need to understand more about that case and the law than what is outlined in this DEC description.
One thing that paddlers need to understand about the Moose River case (and what continues to be misconstrued in some articles I have seen recently) is the fact that in that case the stretch of the Moose river in question WAS NOT ruled to be "Navigable in Fact". This is from the brochure linked to this article:
"The court declined, however, to issue a final ruling that the South
Branch of the Moose River is “navigable-in-fact” because there were issues of fact that were required to be decided at the trial court level. (The decision is online at the website for the Cornell Legal Information Institute.)"
Also to the question of if there is a statutory law that defines the public rights:
"There is no State statutory law that embodies and describes
the public right of navigation."
In the absence of a statutory law, and the fact that the one case that was based on, what appears to be a very navigable river was dismissed, makes me wonder why so many people are coming to such conclusions about what paddlers can or can't do. People need to understand that this is an issue that is far from conclusion.
Remember even the DEC won't go out o a limb and give out a list of what is, or is not, NIF! Given all these facts a paddle better think long and hard before he passes those signs.
This is in reply to the last comment posted at 1:02 PM.I agree that all parties of interest - paddlers, landowners, enforcement officers - would benefit from more information about public navigation rights. The 16-page Q & A brochure on the website of the Association for the Protection of the Adirondacks (now PROTECT!the Adirondacks) is a good place to start. Look under "Publications" on the home page. Then look at the longer May 2005 paper on the same site. That paper also has an appendix that covers the history of how we got to where are today.
After that, take a look at the June 2008 sidebar article in the Conservationist on page 19 by DEC attorney Ken Hamm. That's the gospel - in one page. (Next step in these days of the 5 second sound bite - head of a pin.)
In addition to the Moose River case, be sure to read the 1866 Morgan v King case. It's the landmark case that lays out the facts to what facts makes a waterway navigable-in-fact, as Mary Thill discusses on this blog.
If you still want to learn more, go the web site of the Pace University School of Law and read Professor John Humbach's 100-page article, interpreting about 100 cases, under his list of publications on his page in the faculty section of the web site. The article, appearing in Pace's Environmental Law Review in the spring of 1989,is essentially the complete report that he prepared for DEC in late 1988, which subsequently was the basis for DEC moving ahead with draft legislation and draft regulations, including the famous draft list of navigable waterways. However, why would anyone want to try to interpret and analyze the decisions in 100 cases, some important and some not very important, when an expert like Professor John Humbach has already done that for them? He has summarized the results in the DEC article, on which he collaborated with Ken Hamm and PROTECT!'s Q & A brochure, of which he is co-author.
The draft list of navigable waterways was compiled from three sources: (1)DEC Regional Office staff throughout the state, by observing where boating takes place, and (2)by the Statewide Canoe Routes Subcommittee of ADK, which was comprised mainly of authors of regional canoeing guidebooks, such as Paul Jamieson.The third major contributor was (3) American Whitewater. This input was integrated in a single draft list. Most of the waterways on the list are obviously navigable in fact, but there are a few that may be controversial, like Shingle Shanty Brook. AS specified in the draft regulations, waterways could be added to the list after public hearing if they meet the criteria for being navigable-in-fact and prove to be so upon field investigation by DEC staff. Similarly, waterways could be removed from the list if they don't meet the criteria.
The regulations and the list were ready to go to public hearing in mid-1990, about a year before the Moose River case started in June, 1991. The authority for the regulations was DEC's general authority to promulgate regulations for any part of the ECL and on ECL Article 15 dredge and fill permit law. These permits, by law, are to be issued on navigable waterways. Regulators, as well as paddlers, still need such a list.
For various reason Governor Cuomo's staff refused to give DEC approval to go to public hearing with the draft regulations and the draft list. So,there it still sits.
The Sierra Club group that went down the South Branch of the Moose in June 1991 did so out of frustration with Governor Cuomo's staff for blocking DEC on the regulations and list, while the State Senate was blocking the legislation, which had passed the Assembly in 1990 and 1991. Their objective was to move ahead by provoking a test case. After trying several rivers in 1990 and 1991, they settled on the Moose.
The League Club fully acknowledged the existence of the public right to navigate on waterways that are navigable-in-fact. However, they contended that the Moose was not navigable-in-fact and that there was no legal basis for recreational use as a test of navigability, as contrasted with traditional commerciai use.
In Dcember, 1998, the State's highest court, the Court of Appeals, ruled against the League Club on recreational use and also affirmed the public right of navigation and the ancillary right to portage.
In June, 2000, the Court approved a voluntary agreement between the parties to the case (League Club, Sierra Club, the five individual paddlers, ADK and the State of New York - the latter two being intervenors) that allows the public to paddle down the Moose between April and October if the water level on the gauge at McKeever is high enough and after they register at the DEC put-in on the Moose River Plains.
The Court did not order the parties to go back to the lower (Supreme) court for a trial on the facts concerning navigability on the Moose, but that's what the faced. That's just the way the process works.
The defendants were tired of it after 9 years in court with a $5 million damage suit hanging over the head of each paddler, so they signed the agreement. The League Club signed it partly because they were tired, too, but also because they saw the handwriting on the wall and took the compromise rather than lose in the trial court on the navigability of the Moose. They were headed for that loss.
In fact, during the past 9 years, between 2000 and 2009, the Moose has repeatedly been paddled. Such use has demonstrated repeatedly that it is navigable in fact. And of course it has "natural flow" over the remains of a few old logging dams.
All paddlers owe a debt of gratitude to the League Club. The Club had staying power and the money to see it through to a definitive decision in the highest court. Their lawyers fees were said to cost over a million dollars. The Sierra Club picked their target well. They fulfilled their objective for a test case. The highest court affirmed the existence of the public right of navigation, sanctioned recreational use as a test of utility for navigation, left the right to portage stand without restriction, other than that it should be done by the shortest, least intrusive route possible. If Sierra had continued in the lower court, they probably would have won on the navigability issue too, giving them a clean sweep. But who cares? People are going down the river all the time- and in fact, according to the facts of navigability, the Moose is navigable-in-fact. The issue is moot.
Very few waterways have had to be declared by the courts to be navigable-in-fact. In most cases it is obvious. If paddlers haven't read the guidebook and aren't sure about navigability, they are allowed. as an ancillary right, to scout ahead. And if they are confronted by a landowner while scouting or portaging, they should just leave the property as expeditiously (and safely) as possible. If the they do that, the law is that they cannot be prosecuted for trespassing.
It's true that there are a few "fringe" situations where navigability has not been defined by common law case decisions. For example, would Class V rivers that are runnable by whitewater kayaks navigable? We probably don't have good case law. Kayakers find these places anyway and if landowner permission is needed they get it
As to codification of this longstanding (242 years and counting) public right in a single easy-to-find, easy-to-understand statute, the bill to do that was introduced in 2006 by then-Assemblyman Pete Grannis and is pending in the Legislature right now. Go online on the NYS Assembly's site, under "Bill Search"and plug in A701. Then read the bill and the bill summary.The prime sponsor is Sam Hoyt, whose father first introduced the bill in 1989.
Read carefully. It covers the same bases that are described in DEC's June 2008 Conservationist article and PROTECT!'s brochure. The public right is described briefly, paddlers are told to respect landowners rights and viceversa. DEC is directed by the bill to produce the regulations and the list. The bill neither exceeds or diminishes the common law right.
The bill will pass the Assembly, as it did in 1990 and 1991, but the problem is in the Senate where the League Club and the other big private Adirondack preserves are blocking the bill. They seem to prefer to keep the public in the dark about their existing rights. So far, Senator Betty Little is siding with them because she is not hearing from the anyone else.
The above information is very good. I also think it is informative to look directly at the decision related to the League Club vs. the Sierra Club. It is short and fairly readable for a legal document. I contend that some of the information you find related to this topic (the PROTECK ADKS brochure for example) tend to be written in a way to go beyond analysis, and into the realm of advocacy toward one side of this issue.
A recent article in the Explorer magazine went as far as using the title “Testing the Waters” to describe a trip down the East Branch of the St. Regis. I think this shows that there are many open questions in many peoples minds.
Wherever you come down on this issue, I think it is clear, that some room interpretation still exists. Some questions I might ask myself as a paddler.
If I were to travel down the Moose River through the League club in November could I be arrested for criminal trespass? If the answer is yes (or even maybe) than the issue is not settled there.
If I were with a group of paddlers and I decided to hike the 12 miles of the Moose River through the League Club in November to check on its “navigability” could I be arrested for criminal trespass? The author of the above post says that I can do this legally. Would the law enforcement officer summoned by the caretaker side with me, or would they arrest me?
Remember the law should trump the settlement agreement in this case. So the public right to navigate this river would mean that there are no restrictions. If the law prevails I don’t need to register, or check the gauge, or do this only during high water (April to Oct). The author of the above post says that it is clear that this stretch of river is Navigable in Fact so I should not worry about either case.
I know I wouldn’t try it! I think that illustrates that much of the information given on paddlers rights does a disservice to those that are looking to these documents for guidance. If you follow the advice given in some of the “brochures” or paddlers books out there you would clearly determine that you could not be arrested in either case I mention above. I just don’t think that is accurate.
As to the “various reasons” that NYS has decided not to offer up a list of navigable rivers, or better yet a statutory law codifying this issue is pretty simple. It would be a totally unenforceable and ambiguous piece of legislation. You could never come up with a complete list of NIF waterways, and a law would make it legal for a paddler to paddle, push, and/or carry their boats up any stream or brook that traverses private land (and just hike if the above post is correct). What would be stopping them?
There are some errors in the last "anonymous" response at 11:23 AM today.
The "testing the Waters" article in Explorer is not about the St. Regis. It is about the Mud Pond-Shingle Shanty Brook route which is navigable in fact and where the Sierra Club on August 27 asked DEC to enforce the law by having the Brandreth Lake Assoc. remove cables and intimidating signs and to take other actions.
Of course there is room for interpretation. I said so in my previous posting. Just as with anything else, there will always be issues that pop up, causing a law suit, many times as a result of ignorance of the law. People can't find and don't understand the case law decisions of the common law. That's why we need a single statute. But even that won't do away with occasional law suits. There will always be occasional disputes.
Don't go through the League CLub property in November. That's NOT what the agreement says. You would be subject to being arrested for trespass, but the Penal Law and a Court of Appeals decision say that if you have a strong (and reasonable) belief in your right to be on a private property for portaging, scouting, etc. if confronted you could get out of a trespass charge by leaving the premises quickly and quietly. If you want to provoke another court case and go to the mat with the Club on navigability, that's a different story.
I said that the fact that the Moose has been repeatedly paddled demonstrates that it is navigable in fact. I didn't say that the Club would not challenge you in court if you ignore the Court-approved agreement. Also, if you go on a 12-mile "hike" (with no canoe), that's not "scouting." So lots of luck in court! You are trespassing!
The material that I referenced in my comments last night (DEC article, PROTECT! brochure, etc.) is legally correct information. For example, the brochure prepared by Humbach and Morrison, who have significant experience in this matter, was co-authored by more than a dozen lawyers, State officials and other experts who are listed in the brochure.
As for the bill, it speaks for itself. Go to the NYS Assembly web site and read A701 and the bill summary. Then let's discuss it, section by section, provision by provision.
Thanks for the correction one the "Testing the Waters" article. I did confuse that title with the St. Regis article. These are BOTH examples of where we run into this issue.
I think the above post shows clearly why I say that some of this "guidance", even if authored by a dozen lawyers, can still be misleading. Just the fact that a bunch needed to be involved illustrates that this is no simple issue.
So if I paddle a river that meets all the criteria laid out in the publication, I can still be arrested for trespass? So the common law does not cover rivers traversing private land that have some "special" restrictions imposed by the owner? These settlement agreements are only binding on the parties involved in the lawsuit. Either the common law applies, or it doesn't.
The DEC guidance does not mention any special restrictions on rivers that are considered Navigable in Fact that I should be taking into consideration. This is exactly what I am talking about when I say these documents are misleading. I absolutely agree that you would be arrested if you hiked that stretch of river, but the PROTECT brochure explicitly states "scouting ahead for obstacles is part of safe boating". Let's say I am a VERY safe boater and don't want to see myself get hung up on this private stretch. Isn't it telling me that I should hike the shore as a matter of course? I don't really think it is. But it would not be incorrect to interpret it in that way. The same would also have to stand true for any river w/o "special restrictions". For example if I am on the St. Regis passing through private land, then as a SAFE boater I should look ahead for hazards. By the way you don't see too many paddlers carrying their boats through dead falls as they scout ahead for obstacles. Anyone who has run the St. Regis knows there is plenty to worry about, especially in the spring! So I don't think scouting a good distance ahead is that far fetched. Even if it is only done in short segments that constitute a large portion of the run.
With all this said my point is that I agree with almost everything in these posts. But if the Moose River is Navigable in Fact and the common law applies, and you can still find yourself in court (civil or criminal) as is suggested might happen above, then it could happen on many waterways that passes through private land. I don't see that disclaimer in the "brochures"!
I'll take a look at A701.
To Anonymous at 3:11 PM -
Humbach and Morrison are totally responsible for the content of the NYS Public Right of Navigation paper and brochure.They presumably stand by the legal validity and accuracy of their work and fully endorse the DEC Conservationist article, which is wholly consistent with their statements.
A few of the dozen or so experts who "co-authored" the Humbach-Morrison paper and brochure provided detailed comments.Most had a few comments and/or signed off on it as being okay to put their name on it. In other words, no probleme.
The observation that the common law public right of navigation is not a simple matter is correct. That's why DEC put Professor Humbach under contract in 1988 to prepare a report on the case law that came to about 100 pages after he looked at nearly 100 cases. Even then the case law doesn't cover every conceivable esoteric issue or every aspect of navigation or navigability. The average person doesn't have the legal background and skills to do this kind of interpretive research. That's why we need the bill to distill the essence.
On trespassing. If one leave the premises quickly and quietly when confronted, one cannot be prosecuted for trespass. If that person still believe that the waterway is navigable in fact,and that the landowner has acted illegally, then the situation should be reported in detail to DEC
The common law right covers all waterways that are navigable in fact regardless of "special restriction," obstructions, etc. by the landowner. One still has to go through proper channels to have the illegal blockage corrected.
Most paddlers are satisfied, for now, with the rules that stem from the 2000 agreement on the South Branch of the Moose.The time is not ripe - yet- to ignore the agreement and force a trial on the facts of navigability in the lower trial court. (Who is going to pay for it anyway?) That day will come.
Humbach and Morrison have said - loud and clear - that the public right of navigation on waterways that are navigable in fact does NOT give paddlers the right to go on private land, except to portage around natural and man-made obstacles by the shortest and least intrusive safe route possible and scouting. They say that paddlers are not allowed to do anything other than navigate safely. These publications are far from being "misleading." Please read them carefully. They summarize the existing common law as derived from existing case law. If there is no case law for some situations or aspects of this matter that go beyond the usual or ordinary, then there is no common law about that. Humbach-Morrison-DEC can't "disclaim" the unknown! All they have done is to state, succinctly, what the common law is on this subject.
Scouting a portion of a waterway to look for unknown hazards and to determine if it is safe for passage has to be done in a "reasonable" way, like everything else. If a paddler's behavior is out of the ordinary and not "reasonable" it won't stand up in court. There are no cases that tell you how far paddlers can scout but certainly 12 miles is not likely to be deemed "reasonable" in court. There is no point in dreaming up a lot of weird situations that are never going to happen to most people. As any experienced paddler knows, when one looks ahead and sees a rapids or a waterfall, he or she pulls over to the shore, gets out and takes a look at it. If it is not safe to proceed downriver, they portage. That's what "scouting" means. And, no one expects a paddler to carry his or her canoe while scouting. In portaging with it, stick to the trail. It is no fun walking through dead-falls.
Last, paddlers who can't handle the St. Regis in springtime shouldn't be out there. It's that simple. A little common sense goes a long way, apart from all of this legal mumbo jumbo.
I think I will have to agree to disagree with the above interpretation of the "Humbach-Morrison" brochure (a you call it). I see it as somewhat misleading. It certainly describes the law as it is, but it also could leave a person standing at a sign on the Moose River in November scratching their head! The common law, and the case law, collides with the “special regulations”. From where I am sitting here is simply no other way to see it.
If it is not clear from my posts above I think that easiest way to clarify what I see as a problem is to leave stretches of river like that PRIVATE. The case law has twisted the original common law that never intended to include “recreational” boating as part of its definition. If “recreational boating” could be interpreted to be part of the "economical uses" of a river, than why can’t fishing eventually. That is a multi billion-dollar industry last time I checked. Perhaps we will just wait and add that later when the smoke clears.
The key thing to remember here if you are private landowner is summed up in this quote from above:
"Most paddlers are satisfied, for now, with the rules that stem from the 2000 agreement on the South Branch of the Moose."
The FOR NOW part is what you should focus on. But they won't be satisfied for long. I took a look at the bill described above. The new legislation A701 (http://assembly.state.ny.us/leg/?bn=A00701) is a poorly written piece of legislation that is trying to codify an already complex misinterpretation of an earlier common law. The reason a legislator may be opposed to such legislation, may be not that “she is not hearing from anyone”, but because a smart person should not vote for such a poorly written bill. For starters again we have no clear definition of Navigability. So that leaves any waterway open to public use for “recreational boating”. Sure it says that you cannot cross private land to get to the waterway, but you can get to almost any river, lake, or pond if you start on the right stream. Proponents of this legislation would certainly dismiss this as another “dreamt up weird situation” but it is exactly what they are hoping to get past the legislature. This bill then tries, unsuccessfully I suspect, to avoid criticism of landowners like the League Club by appeasing them with this:
“The bill also authorizes the Commissioner of Environmental Conversation to designate waterways which in furtherance of public safety and/ or protection of natural resources can only be used with special limitations”.
So as long as the current DEC commissioner agrees that keeping a 12 mile stretch of the Moose River free of paddlers during the big game season, so that members don’t have to look at them, is a “public safety and/ or protection of natural resources” issue than they should be happy. Anyone with eyes can see the holes in this! Do you think that the DEC commissioner is going to shut the St. Regis through Mr. Culp’s property (remember the sign above) during the big game season when he writes a letter asking for this? Don’t count on it. The 12-mile stretch of the Moose River on the League Club will be the last one ever “restricted”! Again we can always determine later that even that river is now “safe” to paddle during the big game season. Don’t think for a second that this can't happen. The ability to erase that "restriction" is in the bill. The members of the Adirondack League Club were not born yesterday, that is why they probably don’t support this. Anonymous, please tell us all what is right with this bill from a private landowners perspective?
Agreeing to disagree isn't the worst thing that could happen, but let's take one more shot at it.
There still seems to be some misunderstanding about the relationship between the common law in case decisions and the special regulations for the Moose.
The parties to the Moose, tired of 9 years in court and not wanting to go back to the lower court for a trial on the facts of navigability of the Moose, all agreed to open the Moose to public recreational use providing that the users registered at the Moose River Plains put-in as a safety measure and providing they went down the river between April and October only and providing that the water level on the McKeever gauge showed that the water is deep enough to make a safe trip.
That's a good deal. Everyone knows the rules or will know them in preparing for a tough trip like that, 20 miles overall of which 12 miles is through League Club property, with no place to take out, no place to camp, or eat lunch (other than in your canoe), etc. I presume the rules are posted at the register, although I haven't been there, as well as online.
This deal should satisfy nearly everyone's needs and desires to make that trip, for now.
On the other hand, you could flaunt the rules and make the trip in March or November and/or when the guage says that the water is too low and try to prove the point that the river is navigable in fact under common law as demonstrated by the fact that people have been going down it for a decade. But they have been doing it according to the rules of the 2000 agreement. If I were flaunting the Court-approved rules like that, I would expect to be arrested for trespassing and for breaking the Court-approved rules. I think that I would have an uphill job of it trying to explain to the judge that I felt I didn't have to follow the rules because the river is really navigable regardless of the rules - especially since the Court told the parties, before they signed an agreement, that a navigability determination depended on the parties going back to the lower (Supreme) court for a trial on the facts.
Under this scenario, I would be headed for a major fine for trespassing and unless I was prepared to start a counter suit that would mean going back to the lower court for that trial there probably would be no other way out of it. This could be costly, and prolonged.
Why would anyone want to put themselves through that? If I were standing on the bank of the river puzzling about this, I can say that I would not puzzle very long.
Ken Hamm's article in the COnservationist and the Humbach-Morrison article in the PROTECT! brochure doesn't pretend to answer every question that may ever arise - and they will arise. Neither does the legislation. If it passes, people will still go to court when they have disagreements, just like now.
As someone stated in comments earlier in this blog, there were three main results of the Moose case in the December 1998 decision. First, the Court affirmed the existence of the public right of navigation (which the League Club had never really challenged). Second the Court said that recreational use could be the basis for testing a waterway to determine if it had utility for navigation and that recreational use is a contemporary adjunct to traditional commercial use. Since this is the highest court speaking it means that recreational use is okay on ANY navigable waterway in the state. Third, the court left standing the existing ancillary right to portage, by the shortest, least intrusive way possible, with no other restriction than that existing common law restriction.
These results were a total win for the Sierra Club, particularly on the matter of the clarification of the legitimacy of recreational use. That had been the only real issue for the League Club (other than the navigability of the Moose) - and they lost, big time.
It is totally incorrect to say that the highest court's decision on the Moose "twisted" the "original" common law. The decision on the Moose was a further refinement in the continual evolution of the common law. Traditional commercial use, like ferrying goods or people, rafting goods, floating logs was identified in the 1866 Morgan v King case as being a test of the utility of a waterway for navigability. In 1998 the same court said that recreational use is a contemporary manifestation of commercial use and an adjunct to it.
Also, all of this applies statewide to all navigable waterways, not just the Moose.
As to the people being staisfied "for now" with the 2000 agreement, my bet would be that the navigability of the Moose will eventually be settled definitively through a court trial on the facts.
I think that the Court-approved voluntary agreement is just a stop-gap, temporary measure that, sooner or later, will be challenged.
The agreement also calls for no padding down the Moose during the big game hunting season. That's an agree-upon safety measure. It has nothing to do with League Club members having to look at paddlers or not look at them. Also, this is just one more aspect of the "special regulations" for the Moose. It is not likely that DEC would similarly curtail the public right of navigation during the big game season if other landowners asked it to do so. People in canoes or kayaks have to take their chances just like hikers or anyone else when going through the woods during hunting season, whether on private land or public land. Frankly, there are too many novice hunters out there. I tend to stay out of the woods, in terms of either canoeing or hiking, during hunting season.
As to fishing, in the Salmon River case, DEC was told by the Governor's Office not to show up to defend the public's historic interest and rights with regard to the fish and wildlife resources of the state. As a result, the case was lost even though it really should not have been anything more than a trespass case where fishermen anchored and walked on the private underwater land of
former State Senator Doug Barclay. I expect that decision to be reversed one of these days, to allow fisherman once more to fish while drifting through, over private underwater land.
Right now, under Fish and Wildlife law in the ECL, DEC can establish special fishing regulations wherever they are needed to protect fisheries.. This is a matter that is quite separate from the right to paddle on a navigable waterway.
As to the bill, what is "right" with it is that it would deliver on the need to briefly describe and define the public right of navigation. It does that, strictly in accordance with the existing common law as derived from case law, no more, no less.It is brief and clear and legally accurate and it is in a single staute where people can find it easily.
Second, it directs DEC to promulgate regulations to further implement the common law, including by preparing a list of navigable waterways that be added to or subtracted from based on field study and strictly in accordance with common law criteria.
Third, it tells paddlers to stay off private land except for navigational purposes, including portaging, and it tells landowners that if they illegally block the State-owned public right-of-way on a navigable waterway, there will be penalties. It's no different than blocking a public highway.
It is fundamentally a DEC bill and DEC fully supports it, as do more than a dozen state and national conservation and paddling organizations.
What sentences, specifically, in the bill do you disagree with?
OK, why not, one more shot.
First the “case”:
On the League Club vs. Sierra Club, most of your comments are correct, and I don’t really disagree with the substance. I do disagree that this was a “total win” for the SC. The bottom line here is that the League Club got what it wanted in the settlement, to keep paddlers out of their "domain" during the hunting season. Maybe they were concerned with their safety as you say, but I doubt it. I have never heard of any incidents of paddlers being shot accidently by hunters, at least not in the Adirondacks, but I suppose it is possible. Anything is. I have hunted and paddled Adirondack rivers all my life and never worried about the issue. If it were an issue, I suppose the DEC could consider closing all the navigable waters to paddlers during the hunting season. But I think that is unnecessary. We will leave that decision, and others, to the DEC commissioner if the bill passes. I agree that the Sierra Club got a settlement that they could live with. But I would have guessed that for them this was an issue of “what rivers” can and cannot be used across private land, not just a question of these 12 miles (or 20 miles or whatever). If the Sierra Club had refused the settlement and allowed a court to decide the issues would they have prevailed? You think they would have. I think they might not have. Had they lost it would have been a devastating defeat for recreational paddlers. Had the LC lost they would just have to see a few paddlers for a month or two more. Or I guess have to worry about accidently shooting a few if that was their true concern. I think the League Club got just about all that they wanted. Since this was all settled out of court, and we got no definitive answers, we will just have to go on debating that “what ifs”. This case, since it never made it through trial, has no bearing on anything but that small stretch of river, if at all. I guess it may not have any bearing as long as you have the guts and money to fight it in court. You predict above that I would probably prevail.
Second on the “brochures”:
I also agree that they do not answer all the questions that ever may arise. I think an individual will have to determine for themselves if they have all the information they need to proceed on a specific waterway across private land. I noticed that, when I reread the “testing the legal waters” article, (thanks again for the correction) the author smartly recommends: “In the end, it’s up to state authorities to determine whether or not Mud Pond and its outlet are navigable waters open to the public. Until that time, paddlers may want to stick to the waterways and trails in the state-owned Forest Preserve.”
Finally the bill:
Like I said the main problem I see with the bill is that it fails to properly define the issues at hand. If the law is more clearly defined it will help to limit some of the court cases that you seem to see as inevitable. I think there will be a number of unnecessary cases if the bill remains the way it is written. Neither paddler nor property owner really needs to sign onto a bill that barely moves us from where we are now. What is needed is a clear piece of legislation that defines what a “navigable in fact” waterway is. The reason these cases have landed in court is that the original common law fails to give us a definition that is clear. I don’t see anything in the bill that clarifies the issues that have come up. It just replaces a problematic ‘common’ law with a problematic ‘statutory’ law. Currently (proven by the cases that have come up) the common law is viewed one way by some private property owners, and a different way by folks who want to pass through the land. If that were not true we wouldn’t have a problem! To simply refer to the common law in the bill is a big mistake in my opinion. I don’t know the best way to define what is a Navigable in Fact waterway, but there must be a better way than we have now. I fear that many paddlers groups would like to keep it vague to ensure that there are no limitations. Please tell me what in here would prevent a very small feeder stream from being considered NIF under a law that comes from this bill?
The bill should start out with a specific list of definitions. Along with a definition of “navigable waterway” it should include a definition of what is “necessary for exercising the right of navigation”. What specifically is allowed on private land surrounding the waterway? Where can you draw the line? At some point it should be allowed that a landowner can post his shoreline and be allowed the privacy that comes with owning that land. Also the bill states that the DEC commissioner has the ability to close or regulate sections of water for reasons of “furtherance of public safety and/ or protection of natural resources”. Again a totally undefined term, what does this mean? None of this is defined in the bill. As for this: “FISCAL IMPLICATIONS: None.”. As you often see a legislator (or the DEC if they helped draft the bill) has no foresight as to what costs may lay ahead, and this is incorrect. This bill if interpreted in a broad sense to open a number of waterways to navigation (again I see no limitations on the depth or width of a “navigable waterway”) under law then the fiscal implications are not NONE. Who is going to patrol all these backcountry waterways and make sure the law is followed. Or should we just assume that this is such a law-abiding group of folks that no patrol or enforcement is necessary? If you know anything about large private tracts in the Adirondacks you know that caretakers spend a considerable amount of time chasing trespassers out of places they should not be. I guess this bill just assumes that it will be the responsibility of the landowner to enforce this new law. It must or there would be at least some cost associated. How about the fiscal implication for the landowner? As the number of paddlers continues to increase exponentially don’t you think there is some point where the loss of privacy will begin to impact the value of a particular piece of land? That wasn’t a problem when the common law allowed a raft of logs to pass through private land during a two week stretch in the spring but at some point in the future there very well may be large groups of paddlers passing through stretches of river for most of the summer months. You have to think ahead with this legislation. The law does try to weave a few things in to pacify some critics but I think we can do better. The fact that dozens of paddling groups support it (and I am assuming you are correct) and that no private-property rights groups support it (I am just guessing here), than I think that speaks volumes. Laws are to serve the whole of the electorate, not a narrow group of special interests. I say they go back to the drawing board.
As I said, the League Club got nothing of what it wanted. It lost on the 2 biggest issues, recreational use and keeping the Moose closed to the public. It is now open, given canoeable water levels, from April through October. Closing during hunting was a very minor issue.
The DEC Commissioner is not going to close all navigable waterways throughout the whole state during the hunting season. Let's be real. The hunting season is going to stay exactly as it is if the bill to codify the EXISTING common law passes.
Let's not mix apples and oranges. The 1998 decision by the Court makes it clear that recreational use is okay on ALL navigable waterways throughout the whole state. The settlement in 2000, agreed upon by all parties and approved by the Court, applied ONLY to the Moose. As discussed previously, several times, the agreement let paddlers go down the Moose. It just did not definitively settle the navigability of the Moose, for which a trial on the facts would have to be held in the lower court.
Your repeated statements that the Moose case was not definitive and statewide in its impact is incorrect. You also repeat that the decision applies only to the Moose, which is incorrect.
The Sierra Club knew it would lose on the recreational use issue because there had been cases in the lower courts earlier that allowed recreational use. They wanted the top court, the Court of Appeals, to say it loud and clear, and, most of all, they wanted the Court of Appeals to reaffirm the public right of navigation, which the League Club never even contested, because the top court really hadn't done that in a highly focused way since the 1866 Morgan v King case.
You refer to "waterways crossing private land" repeatedly without seeming to recognize that navigable waterways flowing on private land are "covered" by a State navigation easement, held in trust for the public. If a waterway meets the criteria for being navigable, it's a fairly sure bet that it is okay for you to make use of that easement and go down the river.
The bill does not exceed the existing common law, nor is the common law diminished by the way the bill is presently written. No other kind of bill should pass.
You want the bill to tell you things that are not in the common
law as it now exists in the various case law decisions. That's not going to happen. The whole idea is to extract the essence from those decisions and state the existing law briefly in one place where people can find it easily and understand it. THat's what the bill does.
You say that this bill would replace a problematic common law with a problematic statuatory law. Again, the whole purpose of the bill is to codify the EXISTING common law, not to exceed it or try to crystal-ball decisions on issues that are not in case law now but may be in the future. That's not going to happen either.
You say that you don't know the best way to define a waterway that is navigable in fact, yet the bill does that quite accurately, in the definition section. And it does it strictly in accordance with the common law criteria.
You ask me to tell you what would "prevent a small feeder stream from being considered navigable under a law that comes from this bill." That's an easy one. If you look at the definition for navigable in fact, the criteria are right there. If the stream doesn't fit the criteria it is not NIF.
In the next section, you ask for definitions in the bill when there already are definitions in the bill Also, you ask the bill to tell you where to draw the line in your activities on land. It already does that in several places. Don't do anything on private land except portage by the shortest, least intrusive way possible. The bill tells you clearly that you can't do anything on private land but navigate through.
This bill does not encourage people to go anywhere except on navigable waterways where they have a legal right to be. 99.9% of the time they will follow the guidebooks and go where they have always gone in the past. Just like now, if they trespass, they should be arrested. Nothing will change with the passage of this bill.
With regard to your last comments, do you really think that paddlers exercising their right to travel freely on navigable waterways represent "narrow interests?"
What you don't seem to want to absorb is that the public has these common law rights right now, and they have been exercising them all along for the most part. All this bill does is make it easier to find and understand these rights, for landowners as well as paddlers. That should help everyone.
By the way, most of the states around us also adopted English common law when they were formed. There's none of this confusion and turmoil going on in those states.
The reason is going on here is because in the 1890s the big preserves and estates started closing off all the navigable waterways flowing on their lands, which had been open up through the mid-19th century. The State did nothing at the time to stop them. Most of those waterways have been re-opened through State acquisition of the land on which they flow. But a few of the diehard big landowners out there prefer not to get it. They don't want to admit that their property has always been burdened with the State navigational easement, going back to the days of the Crown, before they bought it. Too bad.
Peace!!
If the League Club didn’t get anything it wanted (or only a minor piece) why settle? You claim they had nothing to lose. Parties to a suit don’t settle when they think the settlement will bring them the same result as a defeat in court. (especially when their pockets are deep). Again, I would argue that they got almost everything they wanted. You seem certain they did not, I just don’t see it. We will have to continue to disagree on this one! You probably have better insight on this case.
Of course I was writing rhetorically when I said that the DEC commissioner would close all navigable waterways during the hunting season. But you cannot tell me that the bill, as written, would not give the DEC the right to do that if they wanted to. To leave a law written in a way that allows someone that decision, even if un-REAL, does the public a disservice. Let me ask you this. Would the law, if passed, allow the DEC commissioner to remove the restrictions on the Moose River if their appeared to no longer be any “public safety, or natural resource protection issue” present?
Currently it is my understanding that the common law does not allow the DEC commissioner to close navigable in-fact waterways whenever he or she sees fit. So the law would add to the common law. You seem to disagree that this law could go beyond where we are now, or clarify the problematic issues. Why? The legislature certainly has that ability. I am sure most attorneys that would litigate these new cases would disagree that the law should be clearly drafted, but of course the cases that arise out of a poorly written law are how they make their money.
So could a small feeder stream (that can float a small kayak for example) be considered NIF? You tell me to look at the definition in the common law. I am saying that, from where I sit, it may not be clear from the common law as written what the answer is. Intelligent folks (much more intelligent than I!) have in the past, due to the lack of clarity, even considered that much larger waterways may not be considered NIF under this definition. This goes back to the issue that it appears that the original common law in many peoples opinion was written to contemplate commercial traffic; things like logs and perhaps barges. The case law adds recreational craft, but I still think that there is much room for debate. Again if there were not a question here the cases would have no merit and would never make it past a summary dismissal. As you know the appellate court ordered in their decision on the Moose that there was a question here for trial. You can’t deny that this is an open question in some cases. That is why the statutory law should do better than the common law in this area. Like I say above, the bill goes beyond the common law in the ability to restrict access to rivers that would normally be open under common law, so there is no reason that there cannot be clarification on the definition of navigability in-fact.
Yes, there are definitions in the bill but help me find the definitions for two terms I specifically asked about. Where is the definition for “furtherance of public safety” or “protection of natural resources”? Given the power granted to the DEC under these parts an explanation is in order.
So again, let’s ask a simple question that the law should cover. Is a small feeder stream, 3 feet in width, on average 10 inches in depth, which is capable of floating a small kayak in most sections considered NIF? I look at the definition in the common law and I say NO. What is your answer? There won’t be grade on this so take a shot.
The ALC did get what it wanted. It wanted to end the suit after 9 years in court. They were tired of it and so was Sierra. ALCy had lost on recreational use and portaging in 1998. All that remained was to determine the navigability of the Moose. They didn't want to go back to the lower court for a trial. They wanted to end it. They had spent a lot of money on legal fees. A trial in lower court would cost a lot more.The ALC initiated the compromise, not Sierra. Also, ALC saw that they were going to lose on navigability, too, if they went to trial.
Yes, I will tell you that the bill, as written, does NOT give DEC the right to close all navigable waterways during hunting season. There is nothing in there that gives DEC the authority to do any such thing in its regulations. Further, if you are familiar wow fish and wildlife laws are changed, every little nit picking change gets intensive scrutiny by the sportsmen and then must be changed by enacting a law to do it.
No, if the law were passed, DEC could not change or eliminate the restrictions on the Moose. The parties to the agreement would have to agree to change it or dissolve it. Those parties inlude ALC and Sierra, of course, as well as ADK and the State, the latter being represented by DEC and the AG's staff. I don't forsee anything like that happening soon.
Again, the whole purpose of the bill is to codify the common law as it has existed from 1777 to the present day on navigation rights. There is no ORIGINAL common law and then a more CONTEMPORARY common law. It is all just ONE common law, with occasional court interpretations that have elaborated it, but NOT changed it. The common law is the common law. It has NEVER been changed. These occasional court decisions have just served to illuminate parts of the law. It has not been expanded or "added to."
In that regard, you seem to think that the 1998 recreational use decision added new law, that it expanded the existing public right. It did not. The Court said that recreational us was a contemporary manifestation or extension of or adjunct to the traditional commercial use of the 19th Century (floating logs, rafting goods, ferrying, etc.) Recreational use is simply a modern means of testing a waterway to determine if it has commercial utility for navigation. Paddlers, after all, can be part of a commercial operation, with guides, rented canoes or kayaks, etc. They aren't all just individual recreational paddlers.
he point is that the Court did not add something wholly new in its decision about recreational use. It simply explained and put the spotlight on a dimension of the public right of navigation that had been there right along.
Similarly, the bill does not expand the existing public right,It
merely brings it together in a single statute or law that explains the existing right.
People aren't going to go down "feeder streams" that are so marginal that they will risk ripping the bottom out of their canoes and kayaks. For the most part they are going to go on eminently canoeable waterways that are a pleasure to travel on.
Yes, of course there will continue to be disputes. The ALC contended that the Moose was only marginally navigable and then only in springtime, that the old rock dams used to release water to float logs caused the river NOT have a "natural" flow as the criteria requires. Of course those old rock dams are all knocked down now and the water flows over the rocks naturally enough to put a hole in that argument.
The Court in the Moose case did NOT ORDER the parties to go back to the lower court for a trial on navigability. This was NOT part of a decision. The lower court IS the trial Court. IF ALC wanted to still keep on claiming that the river is not navigable and the Sierra Club is saying that it is navigable, the ONLY place the issue could be settled is back in the lower court with a trial on the facts of navigability. They chose to have an agreement instead.
The phrases you mention at the end of your comment do not need to be defined in the bill. They should be taken for their commonly understood meaning, nothing less, nothing more. Within its purview as a natural resources and environmental agency, DEC already has ample authority to act to protect natural resources and promote public safety, IN A REASONABLE WAY.
Thanks for the discussion. I hope that it clarified some things. Keep in mind that this bill simply capsulizes the existing law in one place where people can easily find it and understand it. It does not pretend to eliminate all of the disputes that inevitably may emerge at the margins of the public right nor will it eliminate totally, questions about waterways that are marginally navigable in reality or in the opinion of a landowner or a paddler. There will be disputes, and the courts will be there to handle them. But some of them may be resolved administratively first, by DEC, as a first recourse. So, the bill, if enacted into law, could reduce some of the present uncertainties and frictions. It's not a cure-all.
Since I see that our discussion has been brought back out of the closet by John Warren’s post yesterday let me respond one more time. I did not see a direct answer to the question I asked at the end of my last reply. You say that some people would avoid feeder streams since they would not want to “rip” up their boats. The question is would the law allow them to do it? Based on your response can I assume that the answer is YES (assuming they want to ding up their boats a bit)? As you describe they can also carry or drag the boat when necessary, so they should be able to get just about anywhere if they have the desire. To say that people simply won’t do it because of the inconvenience is no comfort to the private property owner. And to say that people won’t do it is just not true. Just look at some of the feeders that are used to access some rivers now. Do you think that most folks at the turn of the last century would have ever expected someone in a small canoe would ever want to venture up something like Quebec Brook in the Santa Clara Tract? As the lakes and rivers fill with boats people will continue to trudge farther and farther into the backcountry to find solitude. It’s happening now right before our eyes.
If the answer to the above question is YES then the common law as defined and “clarified” by the courts has gone too far. To codify it in a statutory law is just what many paddlers would like. Just because it has been around since George Washington doesn’t make it right! We can change things that don’t work well. To not draft the bill in a way that fixes some of the problems is a mistake. I would advise lawmakers to try a little harder. Like you say it is not a Cure All. There we can agree. I would just argue that, as drafted, it cures nothing. We have the opportunity to do something that will protect both paddlers and property owners.
Thanks for the discussion.
The answer is NO. Small tributary streams where the water is not deep enough to float a canoe or kayak and enable it to move downstream effectively obviously are NOT navigable under the common law criteria. They have no utility for navigation. Moreover, there is no case law on this because landowners and paddlers would agree that such streams are not navigable and therefore no disputes have been brought into court on such matters.
Thanks. The ten inches of water that I described can easily float a small canoe or at least a Hornbeck style boat that are used for many of these excursions. I didn't describe a case where the boat can't float. Obviously that would be an easy one. As you know boats are getting smaller and lighter all the time. And there are easily thousands of streams and brooks that would fall into this category. So this is not a far-fetched question
I see that the Brandreth Park Association has decided to defend its posting of Shingle Shanty Brook. We will have to follow this one closely.
It is curious that navigation rights advocates never cite the one sentence definition of "navigable-in-fact" that's in their own brochure, and instead have recently favored longwinded explanations suggesting that as long as you can paddle a boat on a waterway, it's navigable-in-fact, and therefore you aren't taking a legal risk when you paddle past "posted" signs. Here is the definition from the PROTECT brochure:
"In order to be navigable-in-fact, a waterway must provide practical utility to the public as a means for transportation and travel."
In the Shingle Shanty case, the disputed route through private land is twice as long as the existing portage between Lilypad Pond and Shingle Shanty. What's the "practical utility" of taking that disputed route to get to the exact same point, as opposed to using the shorter and quicker portage through state land? If the routes were reversed - if the portage followed the stream's course, and stream followed the portage, there'd be a strong case that the disputed route has some "practical utility to the public as a means for transportation and travel" - but they aren't.
This "practical utility" standard is a crucial part of the definition of "navigable-in-fact" - it is why the navigation rights advocates don't push for "keyhole access" - yet in recent writings, particularly on the Shingle Shanty dispute, it is entirely ignored.
Not "ignored." Just obvious and fully evident to anyone who knows anything about this. If it wasn't restated, it is because it is so fundamental that it is old news. Thanks for bringing it up.
The audience for these articles and posts is the general public, many of whom were reasonably using them to evaluate how much legal risk they’d be taking if they ignored the "no trespassing" signs and followed this route. You’re right that the practical utility requirement is fundamental. But it isn’t “obvious and fully evident” that a route that has never been open to the public, which is twice as long and slow as the existing state portage (which is just one of many on the overall route), has “practical utility to the public as a means for transportation and travel.” As you say it is, surely you can cite some sort of ruling or common law principle that definitively supports your assumption that this circuitous route has “practical utility to the public as a means for transportation and travel” and isn’t just some unnecessary scenic side trip.
The "practical utility" test isn't just someone'sy idea. It's the law, as set forth in the opinions of the State's highest court.
The .8 mile land route through the Forest Preserve on the portage is just an alternative route. It has nothing to do with whether or not the water route is navigable or not navigable - and it certainly is navigable.
Also, the fact that Brandreth has illegally blocked a public right of way for decades, has nothing to do with whether the Mud Pond to Mud Pond outlet to Shingle Shanty route is navigable. Whether the cable at the Forest Preserve boundary was put up last week or 50 years ago, it is in fact illegal on a waterway that most certainly is navigable under the criteria in the common law.
The five minute portage at the Mud Pond outlet is fully permissible under the law.
Brandreth hasn't got a leg to stand on. No one is trespassing when going through there on the State navigation easement.Trying to arrest someone for trespass will surely bring a countersuit. Brandreth will lose.
They should take down the chain and the signs, leaving up "normal" posting signs about no hunting or fishing on the private land (add camping, picnicking, poker playing, croquet, jogging etc. - ON THE LAND.
Brandreth should just let people paddle on through and forget about it.
The "ciruitous route" via the water that Anonymous, above, mentions as a scenic side trip took Phil Brown an hour and ten minutes to navigate, according to his Explorer article, "Testing the Waters." That included a 5-minute portage at the Mud Pond outlet. Compare that with walking the .8 mile trail through the Forest Preserve, with a canoe, paddles and life jackets, then coming back for a second round trip if you are carrying camping gear, food and other stuff. That would take at least an hour, not counting unloading and loading the canoe. I'll take the water level route any
time if I'm traveling with gear. But, it's nice to have a choice.
Now Brandreth has a rope across one end of the route and a steel cable, for a long time, across the other end, plus two game cameras taking a picture of anyone who dares to exercise their lawful rights paddling on the State-owned navigation easement on a waterway that from numerous accounts is navigable at all times of the year. What next, automatic laser guns at each end, 24-7? Or guards on towers watching over this stalag?
It would be nice to see this route officially open, but I’m annoyed that it was made an issue in the first place. This seems like a fight for a fights sake that’s bringing great pleasure to about six confrontational activists who might have a case, but hardly as iron-clad as they make it sound (if it were, the DEC never would have cut that portage around the route, and the DEC’s response to the Sierra’s Club letter would have been something more than “we’re looking into it”). For years, people have been quietly taking that route without any problems. Sure, it was posted, but I’ve never heard of anyone being confronted, which makes sense given that it is in the middle of nowhere. Even if you were, I think it would be highly unlikely that you’d end up talking to a state authority (whenever I’ve been busted for trespassing, saying sorry and making a quick retreat was always sufficient). And the worst case scenario is that you’d get hit with the equivalent of a bad speeding ticket, but you’d be more likely to be hit by lightning. The “illegal blockages” are merely cables hanging over the stream that you might have to duck under. If you’re the type that sees posted signs as the equivalent of speed limit signs (as I am), you’d take the route. If you were the type to always stay under the speed limit, you’d take the portage and probably beat the person that passed by the posted signs. Due to all of the publicity this has gotten though, this route has been turned into the equivalent of a speed trap that a casual trespasser without an axe to grind must avoid. Perhaps the axe-grinders will prevail in the end, but in the meantime they’ve only made the situation worse by provoking the landowner.
Do you really think that this route, or the South Branch of the Moose, or the route on any other navigable waterway where the landowner has put up cables, ropes, barbed wire, intimidating "stop - do not enter" signs, game cameras, etc. would be made "open to the public" without someone making an issue out of it by standing up for the public's rights? If so, you are kidding yourself. These places have been closed for over 100 years and without someone standing up and making an issue about it, the landowners, like Brandreth and the ALC and all the rest of these big clubs will be perfectly happy to keep them closed for another 100 years.
Also, it is noteworthy that Brandreth, as the Sierra Club letter says, has encroached on the public's right of way easement through its exaggerated claims in its deeds. So, legally, they have gone away beyond cables and ropes and signs. The State needs to put a stop to it - now.
The portage route in the Forest Preserve from Lilypad to the Preserve boundary on Shingle Shanty was cut by DEC years ago when the situation was different than it is now. Also, it has absolutely nothing to do with whether or not the waterway route in question is navigable and subject to the public right of navigation.
This route had been “open to the public” for years – many people have taken the route without a problem, and there are many accounts of the trip online from years before the Explorer article. There wasn’t a peep of a response from Brandreth – they probably felt it wasn’t worth bothering with. The general feeling was that despite the posted signs, it was fine to take the route, and it seems it was. That has changed now that a handful of activists have decided to make a big deal out of it and have tried to turn it into some sort of battle of good versus evil.
As far as exaggerations go, the activists have been pretty shameless. To start the whole “public rights” question is just a question, and a messy one – if it were clear, the DEC would have declared the public could take this route and others a long time ago, and the Sierra Club wouldn’t have settled with the ALC. Can you point to a single instance where the DEC or another state body declared that there was a “public right to navigation” on a disputed waterway? Why hasn’t the DEC put out a list of waterways flowing through private land that the public can travel on? If the law was so clear this would seem like a pretty simple task.
Now for some more exaggerations. Let’s start with that portage – the DEC cut it in the late 1990’s after they acquired the Whitney tract, and have been maintaining it ever since – hardly “years ago” and they haven’t made any change after the Moose River settlement (and it was put in right around that time). Barbed wire? Where is this? Intimidating signs? Frankly, an off the shelf posted sign has never left me shaking in my boots, and I’ve gone past them many times. In this case, if Brandreth is erroneously posting the area, the “to the fullest extent of the law” portion would be null and void and anyone who wants to take the route should and would. Game cameras? What’s the problem with those? It seems reasonable that they’d want to know how many people were passing through their land, and again, if the law is on the paddler’s side, they don’t have anything to worry about.
The main angry activist who seems to be pushing the issue, Charles Morrison – who happens to be a former (and apparently rather bitter) DEC official - even had the cojones to claim in print that “Brandreth has been violating the law for decades” when not even the nuttiest activist would claim that the public had a right to take that route until after the state acquired the Whitney tract in the late 1990s.
All of this when the public freely took the route for years without a problem, and the kosher alternative route is shorter, and much faster if you can take all of your stuff in one trip (as you should given all of the preceding portages). In fact, quite a few of the accounts mention that they probably would have been better off taking the state portage because Mud Pond is so choked with vegetation. This seems to be a lot of trouble to take down some posted signs that a lot of people ignored anyway. Even if every single waterway flowing through private land were opened, what percentage of paddleable mileage would this add in the Adirondacks? My guess is that the percentage is infinitesimal. If you look around at the "chatter" online about this contrived battle, you'll find that the response from paddlers is lukewarm at best. Sure, it would be nice if this route were officially open, but very few people seem to feel it should have been made an issue in the first place or that it will make much difference if the activists prevail.
Back to POSTED signs...
Even if you take a liberal view of navigation rights and assume that as long as you are responsibly exercising your legal right to navigate you aren't trespassing, aren't the standard posted signs accurate, and the posting of these routes (and even hanging signs off of ropes or cables so they can't be missed) appropriate?
Here's the standard language from an off the shelf sign:
"POSTED - Private Property - Hunting, fishing, trapping or trespassing for any purpose is strictly forbidden - violators will be prosecuted"
All of those activities are indeed prohibited under even the most liberal view of navigation rights (and we're assuming that exercising your right to navigate doesn't constitute trespass), and the public certainly needs to be warned that they are leaving state land and they should be careful to not trespass by hiking off into the woods or something.
Granted, seeing a POSTED sign might deter people who aren't aware of the issues involved, but they are probably a rare breed by now and should be aware of the relevant issues from the research of their route.
As the writer of the original post, I’ve followed these comments with interest and silence, as (for the most part) the issue has been taken on by people far more knowledgeable than I. However, I’d like to correct some factual errors and disagree with Anonymous (the Anonymous two posts above who starts, “This route has been ‘open to the public’ for years”).
Anonymous characterizes people who have brought to light ignorance of navigation rights as “angry,” singling out retired DEC staffer Charlie Morrison. In many discussions with Charlie I’ve found him to be measured and good-humored. His point is (to paraphrase) that the law is what it is, yet it is widely ignored. Please refrain from slander. Charlie is confident in his views but respectful of those who disagree with him.
I also have paddled through the Shingle Shanty Brook section that is so often discussed and have spoken with an attorney for the landowner Brandreth family and DEC personnel in the Whitney Wilderness. From this experience I disagree with your assessment that 1. “there wasn’t a peep of response from Brandreth.” On the contrary have over the years family representatives have repeatedly insisted the route was closed. And 2. “The general feeling was that despite the posted signs, it was fine to take the route.” In my experience paddlers got the message that the landowners did not want them there and most avoided it.
DEC staff have also told me that they are rewording the Whitney Wilderness pamphlet to clarify navigation rights. And for what it’s worth, paddling to Mud Pond does beat carrying. Thanks.
The post preceding Mary Thill's last post, i.e., Anonymous at 6:06PM suggests that it is okay to hang standard No Fishing-No Hunting signs on a cable or a rope across a navigable waterway. It is not. You would be blocking a public right of way in exactly the same way as if you had hung the cable or rope with No Trespassing signs across a public road.
If you read the DEC posting guidelines on their web site, you will see that you are supposed to post these signs around the perimeter of your property, on trees, fence posts, etc.
There is nothing wrong with landowners adding to these traditional signs, which go back to the State posting law passed in 1894. They can also say "No camping, no picnicking, no hiking, no playing croquet, or whatewver." Just be sure that the sign is of the required size and that it includes the information required by the posting law. See the DEC web site for posting guidelines.
I think it is wrong to cast anyone from the Sierra Club as being too agressive. Personally, I say: Thank God for the Sierra Club. Like Paul Jamieson,who was a staunch member of ADK, not the Sierra Club, and who first called everyone's attention to the need to do something about public navigation rights, Tom Kligerman and the other four paddlers from the Sierra Club who went down the Moose in 1991 were incensed that the big clubs, preserves and paper companies in the Adirondacks had closed off navigable waterways, selfishly and illegally depriving the public of their long-established common law rights.
The "public," that's you and me, everyone, those who come from outside the Adirondacks to paddle here as well as those who live in the Adirondacks and who could have been earning a living from waterway eco-tourism for all of the years that paddling these illegally blocked streams could have brought them. These illegal blockages were and are outrageous violations of the law. People who live in the Adirondacks particularly ought to be incensed.
Kligerman and the other paddlers were willing to live with a million dollar law suit hanging over their heads for nine years. These men and one woman are HEROES. They didn't do this for themselves. They did it for all of us. They stood up for OUR lawful rights when Governor Cuomo wouldn't stand up for them, although the State (DEC and the AG) did come into the lawsuit, as an intervener against the League Club.
The Sierra Club people who filed the complaint against Brandreth are no different. They didn't dramatically paddle down a river to confront a landowner. Nevertheless, they were tired of waiting for the State to act in this situation and they did something about it, for all of us "public" who have a stake in the Adirondack Park. They resurrected DEC's 18-year old enforcement policy, did the research, took advantage of the opening provided by Mary Thill's and Phil Brown's articles about navigation rights and Shingle Shanty Brook. They asked DEC to do its job. We'll see if it does. If DEC does not do the right thing, then the Sierra Club may have to go to court to get DEC to enforce the law.
It's a dirty job - and I'm sure that they all would rather be out paddling - but someone had to do it. Anyway,I salute the Sierra Club. They stepped up to the plate when no one else did.
Anonymous is right. The big landowners just want the Sierra Club to go away and leave them alone in their preserves, where they have cordoned themselves off for a hundred years or more at the public's expense. The State let them get away with it. DEC staff have been playing pattycake with these landowners for years, going along with their phony claims about owning all the recreation rights on navigable waters.
Brandreth has been blocked off for decades. They never would have offered to "negotiate" with the Sierra Club, which did what it had to do - and it should have been done a long time ago. Besides, what's to negotiate? Either the paddlers have a right to paddle through on Mud Pond-Shingle Shanty or they don't.
Now its all out in the open. Brandreth can't hide behind their smokescreen anymore. And DEC's "go along to get along" role is exposed, too, by the Sierra Club's letter.
If DEC enforces the law, Brandreth won't roll over. They will go to court and fight to the death to keep the public out.
This should be interesting.
There's no doubt in my mind that the activists very well could be a good case here, but that remains to be seen and certainly doesn't justify the level of anger and vehement confidence displayed by some. It seems that if some of the commentators on the issue don't get what they want via legal avenues they might feel it is a gross injustice that would justify other action. Some of the more responsible voices on the issue might want to reiterate that there are still questions to be answered, and an unfavorable - but reasonable - decision on this route certainly is within the realm of possibility.
To start, "navigable" (which this route is) does not equal "navigable-in-fact" which would establish the public right of way. Many keyhole waterways are navigable, but no one claims that they are "navigable-in-fact" under common law and therefore the public has a right to access such waterways. Unfortunately, a lot of the writings on the issue have been sloppy about keeping this distinction clear. To be "navigable-in-fact" a route must have "practical utility." I have yet to see a good explanation of what constitutes "practical utility" but it seems that some element of public need is involved. The fact that there is a shorter, and in most cases, faster portage that has been used without a problem for years certainly raises the question as to whether there is a public need for the disputed route. I think a lot of time is going to be spent trying to figure out what exactly practical utility means, and defining it in a manner that continues to exclude keyhole access as no one contends that is supported by the common law.
Something that isn't mentioned but which might end up being part of the equation is that it is conceivable that "the public" might be best served by excluding public access. Increased traffic inevitably has negative environmental consequences whether it is via the spread of invasive species, the disturbance of nesting birds, or other impacts. Of course none of us have phragmites or loosestrife seeds on our boots or boats, would disturb a nesting bittern or other species, or would consider dumping a bucket of non-native fish into a waterway, but who knows about the "other people." Under private ownership that aggressively excluded the public, Little Tupper Lake held a healthy population of heritage strain Brook Trout, but soon after the state acquired it and public access was established, Largemouth Bass were introduced and have devastated the native Brook Trout.
Both sides need to keep level heads on this issue, stick to the facts, and keep in mind the possibility of an unfavorable - but reasonable - outcome.
I think that we all can agree that there is a lot "that remains to be seen."
If Anonymous feels that some posters on this blog seem to be "vehemently confidant" about what they are talking about, perhaps it's because they are vehemently confidant of what they are talking about. And others aren't. Perhaps that because they are not that confidant of what they are talking about.
Some people on this blog are much more knowledgeable about the subject than others, which is to be expected. And, there is no shortage of those who would compromise and equivocate, as Anonymous seems all too ready to do. On this blog I think that you would find that the compromisers are squarely in the landowner camp.
Anonymous says that if some of the commentators don't get what they want {presumably, full access through Mud Pond and Shingle Shanty} via legal avenues, they might feel that "they might feel that it is a gross injustice that would justify other action." That's a big leap. Anonymous would have us believe that those who advocate that the public should be allowed to exercise rights that they long have had, but have been denied by landowners, are all a bunch of nut cases, ready to cross borders onto private land with cable cutters, canoes full of alien invasive species and litter to dump on private land. Come on, Anonymous, get real.
As to compromise, Anonymous needs to inject a note of realism. Either there will be public access, as there apparently already is under the exiting common law, or there will not, after a seemingly inevitable court contest between the State and Brandreth.
Anonymous also worries about the difference between "navigable-in-fact" and "navigable" and how people seem to use these terms interchangeably. He's right. They do. Because, as someone explained many posts ago, it's just shorthand, rather than "sloppy" usage. Some people are tired of repeatedly writing out "navigable-in-fact," the legally correct term, every time they use it. In any case, that legal term is not mysterious or sacred in any way and there is no need to be pedantic about it. It just means, literally, that according the facts as to the conditions that make a waterway navigable, as stated in Morgan v King and ALC v Sierra Club, a waterway is navigable (or not).
The issue that the Sierra Club put before DEC pertains to the Mud Pond-Shingle Shanty through route from the ponds in the LIttle Tupper vicinity to Lake Lila. The Sierra Club did not drag the rest of the navigable waterways on the 15,600 acre Shingle Shanty Preserve parcel into this, including the keyhole ponds. Whether that will be part of this in court or not before this is over is anyone's guess. If that comes up in court, my guess is that since they are not through-routes and the streams leading to them or from them are not through-routes, they would not be found to be navigable-in-fact. There is no good reason for DEC or Brandreth to bring it up, so I hope that they let sleeping dogs lie.
Forget the DEC portage trail, Anonymous. It has absolutely nothing to do with whether or not the Mud Pond-Shingle Shanty route is navigable-in-fact or not. And, since Brandreth has blocked off that route all these years, theoretically allowing no one but Brandreth people in or out, Brandreth should be aware that the law requires only that a waterway be SUSCEPTIBLE to navigation in order to be navigable-in-fact. It has nothing to do with the amount of use.
I agree that people should stick to the facts - and that means gaining a better understanding of the law.
As Anonymous says, a compromise on the Mud Pond - Shingle Shanty route could be a good idea.
Here it is. Before DEC issues a ticket and summons to Brandreth, Brandreth makes a public announcement that this route is now open to paddlers who want to paddle through between the Lake Lila area and the Little Tupper area. At the same time, they announce that they have removed the
chain and the rope and the intimidating posting signs and the cameras and have erected "welcoming" signs on the Forest Preserve boundary at both ends of this section (in place of the cable and the rope). The signs would say"Paddlers are welcome to paddle through and to portage around the rapids at Mud Pond outlet. Please limit your activity to navigation, including the portage, and do not go on the private land to camp or picnic. Fishing is not allowed. Please do not litter. Respect this land."
At the same time, Brandreth would modify its deed for recreational rights so it would not claim navigation rights on this disputed segment or other navigable water on the Shingle Shanty property.
This would knock the socks off DEC and the Sierra Club. They could do nothing but applaud and take credit, with Brandreth, for this very progressive solution.
The issue of the keyhole ponds and the tributaries from them, including Upper Shingle Shanty Brook above the juncture with the Mud Pond outlet, could be avoided for now.DEC and Sierra Club probably would be willing to let that go.
Another even better way to do this would be to go to DEC and the Sierra Club first, discuss this deal, and then make a joint announcement. But Brandreth needs to act before DEC issues a ticket and summons.
Anonymous 11:47 PM,
The repeated use of “navigable” instead of “navigable-in-fact” is far too helpful to the activists rhetoric and publicity campaign for it to be dismissed altogether as a harmless abbreviation. Navigable is a commonly used, and easily understood term that is very simple to determine, whereas “navigable-in-fact” is a complex legal mess as the Moose River case proved. If a waterway is merely navigable, it doesn’t necessarily mean that the public has a right to use the route, whereas if it is navigable-in-fact, they do. If despite your lengthy responses you don’t like writing out “navigable-in-fact” you and others should use “NIF” or some other clear abbreviation instead and not conflate the terms. Note that the Sierra Club letter to the DEC never even bothers to mention the term NIF, on which any claims of public right of way must rest.
Now towards a better understanding of the law:
- For the public to have a right to use a route that flows through private land, it must be “navigable-in-fact” (NIF), not just navigable, correct?
- Although state authorities don’t “make” a waterway NIF, before actionable legal claims can be made by either side, it first needs to be determined by a state authority whether or not the route is navigable-in-fact, correct?
Getting a decision as to whether or not a waterway is NIF is likely to be very costly and time consuming. Just look at the Moose River case, in which after nine years and legal fees likely totaling in the millions, it was never determined whether or not the waterway was NIF. With that hurdle to get over, Brandreth would be nuts to pursue anyone for trespass who was using the waterway as though it was NIF. That is probably why the many people who have documented their trips have never been pursued for trespass, and why we’ve never heard of anyone being confronted taking the route.
Likewise, for the activists to make any truthful and valid legal claims regarding a public right of way, they first have to prove that it is NIF. This obviously would be just as expensive and onerous for them.
Anonymous 11:02 AM,
Although following the above reasoning there aren’t any grounds for legal action by the DEC or other entity until it is determined whether or not this route is NIF (and that indeed the public has a legal right to take the route), I agree with you wholeheartedly that a compromise between the parties would be a fantastic and the most sensible solution, and it seems Brandreth would have the most to gain (starting with the legal fees necessary to defend their position that it is not NIF). I kind of doubt that would satisfy the Sierra Club, but if they turned it down they'd have a lot of explaining to do.
Sorry, but you are making mountains out of molehills by saying that there is a big difference between "navigable" and NIF (as you prefer). There is not a big difference.
Basically, if a river or other waterway is "navigable," that is you can paddle it, then it probably meets the criteria for being NIF under the common law and you would be safe in assuming that it is okay to paddle onward, assuming that it is not a tributary or outlet stream for a keyhole pond.
Second, as discussed repeatedly in these postings, a waterway doesn't have to be declared by a court to be NIF in order to be NIF. Very few waterways in the state have been declared NIF by a court. This happens only rarely, where there is a serious dispute between opposing parties, as in the Moose case. If a waterway has the characteristics that, upon study, show that it is NIP, then it is NIF, with or without a court or an agency or anyone else telling you that it is so. (And you had better believe that they can and do make mistakes!So, maybe you don't want them telling you anything.)
If it appears to a paddler to be NIF, then it probably is NIF, and he or she is safe in assuming that it is alright to paddle onward.
I disagree with your statement that finding a waterway NIF is a "complex legal mess" as per the Moose case. It has been stated in these postings time and time again that the Appellate Division said, 5-0, that the Moose was NIF, but then the League Club appealed to the highest court, the Court of Appeals, which said that the case would have to go back to the lower (Supreme) court for a trial on the facts of navigability to determine whether it is NIF because each side had presented sufficient arguable facts to warrant that. All of the parties agreed not to do that and instead signed a court-approved agreement to open the Moose for public travel under specific conditions. This was not a "complex mess" but rather a very orderly and logical process.
The Sierra Club letter documented that the Mud Pond-SS (that's short for Shingle Shanty)route is readily NIP by virtue of the ease with which Phil Brown navigated through. Brandreth, in its its letter of 10/9 to DEC or in its quotes in the Explorer, has not come up with any reason that would preclude this route from being NIP under the criteria of the common law.
Since your premises are wrong, your conclusions are not logical.
People aren't trespassing when they "honest;y" believe that they have a right to be where they are and as long as they immediately leave the premises when they are confronted by a landowner.
I wouldn't worry about the costliness of any litigation on this matter. On the State side, the taxpayers will pay for it. The question is whether or not Brandreth will contest DEC's enforcement action and how far will they go in spending money on what inevitably will be a losing case. They have absolutely no valid reason for saying that this waterway segment is not NIF. On the other hand, all that DEC has to do to prove that it is NIF is to recite the criteria for navigability that are in the common law.
Lawyers are forever settling out of court, so let's see if Brandreth and Sierra (that's shorthand for Sierra Club or SC if you prefer) have enough sense to try to work something out. I'm sure that DEC and the AG (short for Attorney General) would like that solution, so they can get on with other bigger and better things.
It’s great to hear that the determination of what is navigable-in-fact is so simple and clear. Mountains out of molehills indeed! Thanks for clarifying the situation.
It would be interesting to know if you have carefully read the Morgan v King and ALC v Sierra Club decisions before saying that, The criteria are quite specific. The problem lies in applying the criteria and the fact that every waterway and its natural characteristics, history and relationships to the adjoining and underwater land is different, and therefore the nature of any conflict between the landowner and the public are bound to be different in each case. Again, for the most part it is very obvious that most navigable waterways are NIP, just as it is obvious that most public highways are legally usable. That doesn't mean that there won't be an occasional disagreement that ends up in court - "occasional" like 132 years between the major decisions of Morgan v King and ALC v Sierra Club. Or "occasional" like 18 years between the beginning of the Moose case and the complaint about Shingle Shanty.
That's NIF, not NIP - which is what a lot of people do on these cold winter nights.
This is a fascinating discussion. So let's bring fishing into the discussion since I maintain an exclusive piece of property in northern NY. If the area is posted and someone trespasses to do some fishing, if they are confronted and leave quietly, peacefully, etc... they can not be prosecuted. so what's to stop someone from just using that property as they see fit, ignoring the signs... banking on the fact that no one will be there to enforce it because your location is fairly remote? it seems like enforcement is what it always comes down to, which is a heavy burden on the property owner. is it not?
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