New York State has more than 50,000 miles of rivers and streams, and more than 7500 ponds, lakes and reservoirs. Over the centuries, they’ve been used for trade, travel and recreation by everyone from Native Americans and early European settlers to extreme kayakers and inner-tube floaters.
It’s surprising, then, to learn that the public’s right to navigate these waters is hidden deep within a thicket of legalese, in the form of two state court opinions. An effort is underway by the New York State Department of Environmental Conservation (DEC) to codify those common-law principles into an easy-to-read statute, but opposing private-property owners and a poorly functioning state senate suggest the process won’t be smooth sailing.
At issue is proper interpretation of the public-trust doctrine, an ancient legal precept that prohibits private ownership of certain natural resources, such as air and water. A subset of that doctrine is the right of the public to navigate the waters, which has existed since New York became a state. But which waters are considered “navigable,” and for what purpose? And in what kind of craft? And to what extent does it allow portaging — carrying a small boat over land — around obstacles such as rapids and beaver dams?
Since 1866, the law has been clear that navigation for commercial purposes is permitted and that waters are “navigable in fact” if they are of public use in the transportation of property. That decision, however, said nothing about recreational navigation of public waters in canoes and kayaks.
Enter the Sierra Club. On a late spring day in 1991, a few members of the Atlantic chapter of the environmental organization, along with a reporter, paddled two canoes and a kayak 27 miles along the South Branch of the Moose River in the Adirondacks. Twelve of those miles flowed through private property owned by the Adirondack League Club. Two weeks later, the ALC sued the Sierra Club as well as each paddler individually. Claiming civil trespass, they asked for $5 million dollars in punitive damages.
After years of litigation that cost the ALC upward of one million dollars, conservationists got what they were looking for: a court decision that proclaimed recreational use to be an adjunct to commercial use. The court also secured the right to enter upon the land next to a body of water, when absolutely necessary, for purposes incidental to navigation, such as portaging and scouting ahead.
Although that was all good news for recreational boaters, it didn’t totally clarify the situation. Charles Morrison, the former director of Natural Resources Planning for the New York DEC, knows there’s a better way. “We need to have this written down in one place,” he says. “Because right now it’s scattered and very difficult to find.” The law, he asserts, should be part of the New York statutes.
In fact, Morrison, 80, has been working on this issue since the late 1970s, when he started receiving letters at his DEC office from Paul Jamieson, the late co-author of the popular guidebook Adirondack Canoe Waters: North Flow. Jamieson recognized the murky status of navigability, and his letters begat a campaign by the DEC to get a bill through the legislature. The first try was in 1989, but by then the issue had become politically controversial. Then the Sierra Club won its case, and the plight of paddlers was all but forgotten. “Nobody was talking about it anymore,” Morrison recalls.
Morrison revived interest in a new statute in 2006, using the connections he gained while working in the state government for most of his career. The assembly introduced a bill in the current session, but this time it’s pared down to bare essentials: “All we wanted was a clear-cut statement of the right of public navigation and a definition of navigability,” Morrison explains. The bill also allows the DEC to make a list of the waters that are “navigable in fact.”
Not everyone is going with the flow. Speaking for the Adirondack Landowners Agency, Ross Whaley, the former chairman of the Adirondack Park Association, says the opposition is focused on “issues of emphasis in the wording rather than substance.” Whaley is a canoeist.
The ALA wants to make sure that the “right to navigate” isn’t broadened into the “right to recreate.” The bill seems to respond to this by prohibiting the public from using navigable waters to access private land on which to hike, picnic and camp. But the ALA wants to also prohibit waterborne recreation on private land, such as swimming, jetskiing or floating in an inner tube — none of which is closely related to travel and navigation.
In response to this, Morrison says that the opposition “has an ungrounded fear that people are going to go in places they’ve never been before and picnic and camp and crap. And it’s just ridiculous.”
In any event, the bill won’t likely make it through this year. “It’s my hope,” says Whaley, “that next January we can get a couple of interested and wise legislators to hammer out a better law.”