Monday, May 11, 2009

Know Your Rights: Canoe Passage

I’m accustomed to setting out on an article knowing less about a subject than the people I interview. A recent assignment went the other way, to a surprising extent.

The topic was navigation rights in New York State. The editor of the Adirondack Explorer, Phil Brown, and I wanted to know why, ten years after a state high-court decision affirmed canoeists’ rights to carry around obstacles, paddlers rarely test rivers that flow through private Adirondack land (you can see the article here).

Out of five riparian landowners I spoke with, three stated that their rivers were “closed” because bridges, dams or downed trees block the streams and paddlers are prohibited from carrying around them. That’s a pre-1999 view. Obstructions have not been grounds for denying canoe passage for a decade, I explained, no matter who owns the riverbank.

All three landowners then responded that the rivers were probably impassable anyway and who would want to paddle them. (A sixth landowner who in the past claimed that passage is closed between Mud Pond and Shingle Shanty Brook did not return phone calls or e-mails; I have no doubt from a trip through that property myself that it is a navigable stream with one quick carry.)

Frankly I expected landowners on disputed rivers to know the law because they have the most at stake. I expected to find the confusion on the paddlers’ side of the issue, and there is plenty among that group too. This first page of the 2008 Paddlesports Press guidebook Adirondack Paddler’s Guide states: “Most private lands, however, are just that — the public is not allowed.” Zero effort to explain the river access that paddlers fought decades to earn. The next sentence: “In fact some private reserves are patrolled and huge lawsuits have ensued for trespass.” There was one lawsuit, and it changed everything: A group of four canoeists and one kayaker provoked a test case on the South Branch of the Moose River in 1991, and the ensuing trespass suit sought $5 million in damages, which a judge dismissed. One of the defendants says the dollar figure never weighed on the group. It did take seven years and three courts to reach a final ruling, which contains vague language that only rivers proven to be “navigable in fact” are open. Nuanced, but not a blanket ban and not a reason to monger fear.

These examples prove a point made by Charlie Morrison, a retired Department of Environmental Conservation official. Morrison is lobbying the state legislature to pass a bill that would make the 1999 Moose River decision statutory. He says he does not want to change the law, just to codify it so it doesn’t get lost again.

Navigation rights are not new; they derive from common law and interpretation of that law by courts. The late canoeist and author Paul Jamieson pointed out that travelers crossed the Adirondacks freely by small craft in the early 19th century. Gradually, transportation became land-based, landowners began posting rivers, law enforcers began upholding the land-posters, and rights of passage faded. The 1999 ruling restored them.

Jamieson and the Moose River paddlers righted a century-old wrong, which is not to say the landowners’ instinct to protect their privacy is wrongheaded. Some told me off the record that members of the public who have passed through their land left fire rings and litter. If a paddler gets hurt — and these are generally tricky rivers, not flatwater cruises — landowners are the ones who’d have to come to the rescue. The Moose River case affirmed the right to travel through, but they do not give paddlers the right to stop, picnic, fish, hunt, camp, even take a pee. If you can’t run a river through somebody’s property in a day, then that river is not navigable, at least under existing state law. The West Branch of the St. Regis River below the St. Regis Canoe Area probably falls into that category.

One obstacle Morrison faces in Albany is the disorganization of the state Senate. Assembly sponsor (Democrat Sam Hoyt of Buffalo) needs to find a counterpart in the next week or two. Another obstacle is the passive resistance of the Adirondack Landowners Association, which seems to prefer the inhibiting effect of the reigning confusion: if the law is not spelled out, canoeists will stick to publicly owned waters where they don’t have to decipher access rights.

And over the past 15 years the state has acquired miles of new public waterways, so the situation on the ground is relatively peaceful. But keep an eye on the Beaver River connecting Lake Lila to the Stillwater Reservoir: The landowners and guerilla padders I interviewed agree it’s really only runnable after snowmelt, and then for a week at most. Whether that makes the Beaver “navigable in fact” may take another court to decide.

Photograph: The Beaver River near Lake Lila; by MWanner, from Wikimedia Commons

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Mary Thill is a freelance journalist based in Saranac Lake. She recently began working as a writer and editor at The Nature Conservancy's Adirondack Chapter.




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