When four canoeists and a kayaker ventured down the South Branch of the Moose one spring day in 1991, passing through posted land, they sparked a legal battle that lasted eight years and ended in a victory for paddlers.
The Court of Appeals, the state’s highest tribunal, ruled that the common-law right of navigation embraces recreational canoeing. Two years later, the paddlers and the landowner, the Adirondack League Club, reached an agreement specifying when the public is allowed to paddle the South Branch.
But it wasn’t a total victory.
For one thing, the agreement says the river is open to the public only from May 1 to October 15 (or the opening of big-game season). But if a river is navigable in mid-April, why shouldn’t the public be allowed to paddle it? Can such an agreement between a landowner and private parties restrict the common law?
For another thing, little has happened to advance the cause of navigation rights since. Last spring, I paddled through posted land on Shingle Shanty Brook, a stream that connects two parcels of Forest Preserve in the Whitney Wilderness. I believe the public has a right to paddle this stream, but the landowners disagree. That there is still doubt about this, more than a decade later, shows that the Moose River decision was not as world-shaking as paddlers had hoped.
Finally—and this is less well known—the Moose River case put an end to legislative and regulatory efforts in Albany to clarify navigation rights.
Back in 1991, state legislators were pushing a bill that would have affirmed that paddlers have the right to travel on navigable rivers. At the same time, working on a parallel track, the state Department of Environmental Conservation was drafting departmental regulations with the identical purpose in mind.
The bill passed the Assembly, but apparently it was blocked in the upper chamber by Senator Ron Stafford, whose district included most of the Adirondacks. I’m told that Stafford was on the verge of coming around when the Moose River controversy erupted. Because of the lawsuit, the bill was shelved.
Similarly, DEC abruptly abandoned its effort to adopt regulations. The department had progressed so far in this initiative that it had drafted a news release.
What’s more interesting, DEC had prepared a draft list of 253 waterways throughout the state that it deemed navigable under the common law. Fifty-five of those rivers are in the Adirondacks.
You can read about this history in the May/June issue of the Adirondack Explorer. The story is available online here.
You also can see online the fifty-five Adirondack waterways on the department’s list. Keep in mind, however, that this was the draft of a preliminary list. If the list were subjected to public hearings, waterways may have been added or subtracted. That being said, it’s thought that most of the waterways on the list probably would have survived.
There is now a bill before the state legislature that would clarify the common law and authorize DEC to draft a new list of navigable waterways. Whether DEC would use that authority is questionable. The department may prefer to negotiate with landowners, as it is doing in the Shingle Shanty case. However it’s done, though, the public’s rights need to be clarified. The Moose River decision was not enough.
Photo of Shingle Shanty Brook by Phil Brown