Is it freedom of the rivers or trampled property rights?

Crossing lines in the Adirondacks. Brian Mann paddles past a No Trespassing sign to report on paddling and property rights in the North Country.

Last week, I did something I very rarely do:  I consciously crossed a visible line in a river and an invisible line in my approach to reporting on the battle over river rights in the Adirondacks.

Let me explain.

The owners of a big chunk of private land in the Adirondacks, the Brandreth Park Association, have posted as private two chunks of water, Mud Pond and a stretch of Shingle Shanty Brook.

They’ve strung a cable across the river — that’s the visible line.

Their signs threaten legal action against any canoers and kayakers who paddle through and make use of a short portage trail that connects these remote bodies of water.

The landowners have even rigged automatic cameras to photograph anyone passing through the area without their permission.

A lot of paddlers and independent legal experts think those restrictions and warnings are powerless.

State law, and a landmark 1989 appeals court decision, known as the Adirondack League Club case, seem to indicate that the vast majority of navigable rivers and streams in New York are open to public traffic.

“If…a river is navigable in fact,” found New York’s highest court, “it is considered a public highway, notwithstanding the fact that its banks and bed are in private hands.”

That same decision concluded that “recreational use fits within” the spectrum of recognized and acceptable activities on those rivers.

While still controversial, the decision is seen as definitive even by a lot of people who are deeply uncomfortable with the idea of paddlers crossing through private land.

“I understand [private landowners] desire not to have paddlers on their land,” says Ross Whaley, with the Adirondack Landowners Association.  “However, the law has spoken and [the landowners] may not have a choice.”

Here’s what Whaley said in an interview with NCPR:

“It seems that the case law over time has made it clear that navigable-in-fact streams can be navigated by paddlers.  This stems from English common law, which was the law of the state of New York prior to any legislative law…The courts said that recreational passage is allowed under the common law.”

That view is shared by John McDonald, head of the Ausable Chasm Company and a former attorney for the Adirondack Local Government Review Board, a champion of private property rights in the Park.

“Legally, they do have a right to go through the river,” McDonald says, pointing out that the courts also confirmed the right of paddlers to portage, to scout the river, and to carry boats and equipment across private land.

Some private landowners — including Judson Potter, head of the Brandreth Park Association — disagree passionately with this interpretation.

In a lengthy conversation with NCPR, Potter insisted that the Adirondack League Club decision, when coupled with other New York case law, is far murkier than others believe.

He’s convinced that the unique characteristics of Shingle Shanty Brook should exempt it from the common law access provided on most of New York’s navigable rivers.

“It’s a very important part of my family’s history,” Potter says. “And we very actively and regularly use the area.  We don’t every want to be in a situation where there’s a potential conflict between our family members and members of the public who are going through the area.”

Normally as a journalist I try to play it right down the middle:  I report what both sides say, include as many facts as possible, and let you the audience decide.

But in this case to get at the story accurately, I decided that I had to cross that second line, the invisible one.

I had to decide whether the law gave me (and NCPR) access to Shingle Shanty Brook without first gaining permission from the landowner.

After talking with legal experts and reading the case law carefully, we decided that on balance the issue seems fairly clear:

If a river in New York is navigable and we have a good reason to use it (recreation, journalism, trade, or whatever) we have a right to use it.

That said, it’s always a nervous business when a journalist moves beyond pure neutrality, even in cases like this where the facts seem reasonably plain to most observers.

So what do  you think?

Did NCPR report the facts accurately?  Did we do the right thing by paddling that river — and portaging briefly over private land — to get the story?

Or did we show a bias and trample a landowner’s property rights?

Your comments are welcome below.

103 Responses to “Is it freedom of the rivers or trampled property rights?”

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  1. knuckleheadedliberal says:

    “It’s a very important part of my family’s history,” Potter says. “And we very actively and regularly use the area. We don’t every want to be in a situation where there’s a potential conflict between our family members and members of the public who are going through the area.”

    This is the same sort of reasoning the King would have used to keep the peasants from traveling across his property. That is why English common law specifically allowed the right to travel the Kings roads.

    It seems to me you had a reasonable purpose in crossing (not that you needed to have one) so what you did was fine for journalistic purposes.

    That said, there are cases (at least one I know of in the Adirondacks) where people have crossed posted private property or gone up a river, one has died from drowning and then the family of the dead guy has sued the property owner for not denying access.

    Sometimes you can’t win.

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  2. bob says:

    I think I don’t know what “navigable” vs “non-navigable” means.

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  3. Bret4207 says:

    It seems to me if a portage is necessary then the “navigable” defense is gone. Same with the recent post on Ausable Chasm and the fact you can’t navigate upstream. Once you stepped foot on the ground you were trespassing.

    In my mind this is a certain group trampling on the rights of the land owner by using the law in a way not intended. There can always be arguments made to use the law to allow further trampling of the individuals rights. That doens’t mean what’s done is right. And then there’s the whole motorized/non-motorized issue. I have a feeling that had you encountered a motor boat back in the “wilderness” you’d be distressed over it Brian. And yet they are just “navigating” too.

    Where do we draw the line?

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  4. knuckleheadedliberal says:

    And don’t think we haven’t noticed that this is just another excuse for you to go out and play but call it “work.”

    What is next? “Swimming on a hot day, right or wrong?”

    Okay, but seriously, traveling is probably the most basic right from which all others derive. Consider a woman in Afghanistan who is trapped in her home. What good is a right to free speech for her? Not being able to move freely from one place to another is a form of arrest.

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  5. PNElba says:

    I have a problem with the “portaging over private land” part also. I also have a problem understanding whether a river is navigable or navigable-in-fact. I think the State needs to clarify the definition of navigable-in-fact.

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  6. knuckleheadedliberal says:

    I am not a lawyer, but in effect a portage is a “right of way”
    as are many roads, trails, etc.

    Doesn’t the 1989 Appeals Court decision address navigable waters and portage? Perhaps Brian could post a link or excerpt? If he’s not spelunking or hang-gliding?

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  7. Paul says:

    “If a river in New York is navigable and we have a good reason to use it (recreation, journalism, trade, or whatever) we have a right to use it.”

    If you look more carefully at the ALC vs. Sierra Club case you will see very clearly that “Navigable” and Navigable-in-fact” are two very different things. Many paddling groups and others have given people the false impression that the two things are one in the same. Brian, I think now you and NCPR are doing the same thing.

    For a river to be covered under the common law it needs to be NIF not simply navigable. If the Sierra Club case had not been settled and there had actually been a ruling then you would have much better case that you are not trespassing. Based on that “settlement” which I think you inaccurately call a “decision” there are a number of restrictions placed on the Moose River. Those restrictions actually point to the possibility that even that waterway was not Navigable-in-fact. The court certainly never “decided” that it was.

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  8. Pete Klein says:

    If you want privacy, don’t own waterfront. If you can’t afford to buy the whole lake, river or stream, don’t expect privacy.
    In a way, Bret may have the solution to the navigable issue. If a stream or river can be navigated by a power boat without the need to portage, it certainly should qualify as being navigable. To allow for portage would, legally, legalize a trespass.

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  9. Brian Mann says:

    Hi folks –

    Good conversation.

    The courts have ruled clearly that navigable-in-fact does not require that the entire course of a river be open, or open all year around.

    Navigability clearly allows portaging, scouting, moving boats and gear around obstructions, etc. — even when those activities cross private land.

    The argument, according to the case law, is that those activities have been part of the necessary character of “navigation” for a really long time — as long as we’ve traveled rivers in New York, in fact.

    In order to end this legal practice, lawmakers in Albany would have to specifically ban it, which is a legitimate thing to lobby for of course.

    All of this said, yes, it is an uncomfortable thing (even assuming it’s legal, is it right?) to be portaging over land owned by a landowner who doesn’t want you there.

    –Brian, NCPR

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  10. PNElba says:

    American Whitewater organization has a good FAQ brochure on the issue.

    http://www.americanwhitewater.org/resources/repository/New.York.Navigation.pdf

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  11. Bret4207 says:

    Brian, could you please post links to the relevant parts of the decisions and NYS Navigation Laws that apply? Having the definitions and the Courts language at hand might provide the needed information to come to some sort of consensus.

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  12. Brian Mann says:

    Paul -

    Obviously, people interpret case law differently — certainly the landowner interviewed in my story does just that and so do you.

    But at this point, your interpretation is clearly the outlier.

    John McDonald, an attorney, a property rights activist, and a guy who doesn’t want paddlers on his land at Ausable Chasm thinks the ALC case is definitive.

    So does Ross Whaley, with the Adirondack Landowners Association, and also an employee of Shingle Shanty Preserve.

    See their quotes above.

    The bottom line is that New York’s highest court has ruled that the definition of navigable-in-fact includes a wide range of activity.

    That definition includes simple travel and recreation. (You don’t have to be, say, moving goods to river.)

    It also includes portaging, going around obstructions, etc.

    One final thought:

    Some landowners insist that there still needs to be, in effect, a river-by-river court fight to determine what is and is not navigable-in-fact.

    The legal experts I talk to say that legal standard is not widely accepted.

    When the state’s highest court rules, that becomes the new standard under the law.

    –Brian, NCPR

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  13. Brian Mann says:

    Good idea, Bret – I’ve added a link to the ALC case in the text of the blog post.

    –Brian, NCPR

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  14. Paul says:

    Brian,

    To be covered under the common law a river needs to be navigable-in-fact, not simply navigable.

    Please tell me of a single case in which a court has ruled that a river is navigable-in-fact. You can’t find one. The ALC vs. Sierra Club is as close as we ever got. But even there they NEVER ruled that the South Branch of the Moose River was navigable-in-fact and that was a river with a clear history of being used as a “highway for trade” during the logging days. The fact that the court was unable to rule that this river was NIF is something that gives me pause, and I think it should anyone.

    The Sierra Club case did (with the lower court) rule that recreational boating (not only canoeing) could be used as a “measure of navigability-in-fact”. Let’s be clear on one point. The courts DID NOT rule that the river was navigable-in-fact, the case was settled out of court.

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  15. Phil says:

    Paul, the Court of Appeals did indeed render a decision in the Adirondack League Club case. It ruled that recreational paddling was a legitimate use of navigable-in-fact waterways. While not every navigable waterway is navigable-in-fact, the legal experts I have spoken with have said most navigable waterways that are legally accessible and are useful for travel can be assumed to be navigable-in-fact.

    Bret, stepping on private land to carry around rapids or another obstacle is allowed under the common law. It is not trespassing.

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  16. “We don’t every want to be in a situation where there’s a potential conflict between our family members and members of the public who are going through the area.”

    Are we so contentious a society that an encounter between family members of the owner and the public are potential for conflict? My experience in the woods is that the other people I meet are very friendly and civil. I’m guessing that this is a euphemism for “we might get sued”. That potential causes landowners to be defensive and challenge those who are harmlessly passing through.

    If we are going to lobby for a change to law, how about legislation that says ‘if you are on someone else’s property without a specific invitation (come over to my place and we’ll go canoeing), you can’t sue them for injuries that occur while you are there’. That’s just common sense. I was once injured while on the property of a local business owner. I even had permission to be where I was. Had I gone to a lawyer I probably could have sued for thousands of dollars, maybe tens of thousands. I didn’t because the injury was my own fault. I stepped back and fell because there was a 3′ drop behind me. I knew where I was. I knew there was a drop in back of me. I stepped back without thinking before I did it. My fault. The laws that allow suits of property owners over things they can’t control are the main reason property owners are paranoid about allowing people to cross their property. It’s time we had some common sense change to those laws.

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  17. Paul says:

    Phil,

    “It ruled that recreational paddling was a legitimate use of navigable-in-fact waterways.”

    Like I said above the court did rule that recreational paddling could be used as ONE measure of navigability-in-fact. That is all the court said.

    I am somewhat confused (as usual) by these comments, please show me in the court decision where the court ruled that the river was navigable-in-fact. That is truly what is needed to be sure that the passage is covered under the common law rights. I don’t disagree that this river may be navigable-in-fact but to claim that a court has ruled that it is NIF is simply false, and extremely misleading to paddlers that are trying to understand the rights they may or may not have.

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  18. Paul says:

    James,

    I agree that liability is a big issue and some changes are in order.

    But maybe these owners just want their privacy. There is nothing wrong with that.

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  19. Phil says:

    Paul, the point of the decision was that recreational paddling is allowed on navigable-in-fact rivers. I don’t see how any other interpretation is possible. The question is which rivers are navigable in fact. As I said above, the legal experts I spoke with say most rivers that are navigable and legally accessible are navigable in fact. I never said the court ruled the South Moose was NIF. That was a factual determination that the Court of Appeals did not want to rule on. The matter was referred to the trial court, but the parties settled before the trial.

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  20. Paul says:

    “the point of the decision was that recreational paddling is allowed on navigable-in-fact rivers”. Phil, that is partially correct. Read the decision again. It says that “recreational boating” is ONE legitimate measure of navigability-in-fact.

    Also from the decision: “The individual defendants’ trip down the South Branch is evidence of navigability, but that event is not enough to demonstrate that the river periodically has sufficient natural volume for a sufficient portion of the year to make it useful as a means for transportation”.

    The court did not rule that the river was navigable-in-fact and therefore it may not be a common law right to navigate this river. That is the only “interpretation” of the ruling that I can see.

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  21. Bret4207 says:

    Thanks for the link Brian. At least now we understand the basic definitions they’re using. I’m also reminded of why reading case law always gave me a a headache. It reaffirms my belief, particularly the dissent, that the Courts often seem to enjoy using legalese for the sake of confusion and to nearly require hiring a lawyer or law clerk to make sense of a simple sentence! But, the basic questions are answered, my concern that up and downstream navigation be possible are covered (they think I’m wrong) and it appears in the Courts opinion that recreation is a justifiable cause for negating a property owners common sense rights.

    I’m with James Bullard on the idea of Tort Reform regarding land use. That too strikes me as common sense. I would also imagine in the future this subject will see much more court time as the general public carries on it’s battle against private landownership and the traditional rights associated it.

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  22. dave says:

    Paul,

    I understand your opinion of the issue, but I am having a hard time with your argument. It strikes me as a text book straw man.

    http://en.wikipedia.org/wiki/Straw_man

    No one is suggesting that the court ruled this specific river was NIF.

    Yet you keep bringing up this non-disagreement and then “refuting” it when it is really a point that no one is making.

    All I see being suggested in these discussions is that the court has ruled that paddling is allowed on NIF rivers AND that legal experts agree that most rivers that are navigable are NIF.

    I can see how those points could be confusing to some – but not someone as well versed on this issue as you appear to be.

    By continuing to bring up your argument, are you trying to suggest that each river must be individually declared NIF by a court? If so, it seems like this quote from Brian is the one you should be addressing…

    “Some landowners insist that there still needs to be, in effect, a river-by-river court fight to determine what is and is not navigable-in-fact.

    The legal experts I talk to say that legal standard is not widely accepted.”

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  23. bob says:

    So as a private land owne,r has the value of my property been reduced and should I therefore be going to Real Poperty small claims to have my assessed value reduced andresulting taxes decreased?

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  24. Brian Mann says:

    Paul –

    I find it really difficult to find factual support for your interpretation of the case law involving navigation of rivers.

    In the ALC decision, the court begins with a clear statement of purpose:

    “This case presents the Court with the opportunity to decide to what extent recreational use can be considered in determining whether a river is navigable in fact.”

    The court unambiguously answers the question: Yes, recreation “fits within” that framework.

    Every legal expert I’ve spoken with believes that when the state’s highest court expresses a view like this it sets legal precedent — not just for one isolated river, but for navigation law in general.

    It’s also important to keep noting that even people who prefer giving precedent to private property rights (over the rights of river-navigators) disagree firmly with you.

    In arguments of this kind, it’s fine to continue staking out an outlier position — but it’s only fair to acknowledge that your position is the outlier.

    (What you seem to be doing is suggesting that my reporting is misinterpreting the case — but if I’m misinterpreting it, so is just about everybody else…)

    –Brian, NCPR

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  25. anon says:

    “bob says:
    July 26, 2010 at 12:46 pm

    So as a private land owne,r has the value of my property been reduced and should I therefore be going to Real Poperty small claims to have my assessed value reduced andresulting taxes decreased?”

    Bob,
    Probably not. it’s been shown that property values generally increase when trails, especially non-motorized trails, run adjacent to a property, here: http://www.nttp.net/resources/economics/NPSeconStudy.html
    So a portage through a property probably won’t turn said property into a slum. Maybe they should open a lemonade stand!

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  26. anon says:

    Brian M,
    There’s no such thing as “pure neutrality” in journalism.
    And there’s nothing wrong with what you did. And I think you know it.
    Good hook for a blog post, though.

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  27. Phil says:

    Bob, your property rights never included the right to bar people from paddling on NIF waters.

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  28. Phil says:

    Paul, I have read that decision several times. I don’t think there is any doubt that the court ruled that recreational paddling is allowed on NIF waters. The only question left was whether the South Moose was NIF–a question the court felt needed further factual examination.

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  29. I believe that when he was selling off his properties, Dr. Sewart Webb included a clause that said something to the effect that a traveler can cross one private property to get to another. I believe this was to remain in all subsequent deeds.

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  30. bob says:

    So it gets dark during a person’s portage. Can they stay the night, build a fire, treat the land as their own? I could not disagree more with the report cited by annon. 1:21. Phil, clearly. My property rights mean nothing in terms of barring persons from paddling on NIF waters. Never said they did. However, it, in my opinion, does reduce the value of the private landowners property.

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  31. Solidago says:

    Brian,

    You didn’t ask the DEC to comment? I’d think that the first question you’d want to ask them is if, as you say, “the vast majority of navigable rivers and streams in New York are open to public traffic”, then why did they cut the portage trail around this waterway, why do they state here – http://www.dec.ny.gov/outdoor/9165.html – “While recent court cases have established the public right to traverse private lands by boat on specific waters in other parts of the state, the question of the legal right of the public to navigate any of the waters that enter private lands from the William C. Whitney Area has not been resolved. Please respect the wishes of private property owners to enjoy their privacy, and realize that landowners may take legal action should you decide to proceed by boat beyond State land boundaries.”

    Regarding a court determination as to whether or not a waterway is “navigable-in-fact,” that only has to happen when there is a dispute – in most cases it is widely acknowledged which waterways are NIF, and which aren’t, and are therefore the property of the adjacent landowner. For more than a century this waterway has been assumed to not be “navigable-in-fact” and the property of the landowner – in the last year, Phil Brown, a handful of others, and now you have brought this waterway into dispute claiming that it is “navigable-in-fact,” despite its history.

    Brian and Phil, people have been using their feet for travel across land since the beginning of human history. Why don’t I have a common law right to go wherever my feet take me? This is a serious question that I’d like to see you guys tackle.

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  32. Mervel says:

    You see this could call be solved if the state would just buy more land in the Park.

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  33. mateo says:

    Bob, you can disagree all you want, but its up to your assessor and your opinion means nothing regarding you assessment. Contact your assessor to get the answer and report back.

    As a matter of fact, I have see realtors use “navigable stream on property” as a selling point.

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  34. Paul says:

    “In arguments of this kind, it’s fine to continue staking out an outlier position — but it’s only fair to acknowledge that your position is the outlier.”

    Brian, what in the world are you talking about? Like I said I agree that this case affirmed that “recreational use” is one of many measures of navigability-in-fact. That is all it said. To equate that with saying that all “canoe-able” waterways are somehow NIF is absolutely ridiculous. That is the advice that folks are getting from these stories and they are yes, “misinterpreting the case”. The story you had on NCPR was very good and you sought out some of the usual legal experts that side with paddling interests. For proper perspective I might have spoken with Adirondack League Club attorneys that were arguing for the plaintiffs in that case. Or maybe even legal advice from outside the case entirely.

    If this case is so clear cut, and I am the only “outlier”, that doesn’t seem to get it why did the state of NY build a 1/2 mile long carry abound Brandeth property? Why does the state not prosecute these folks that have “illegally” posted these waterways? Why did the parties settle the case (remember NYS DEC was a co-defendant in that case) and take the restrictions offered by the ALC on use of that stretch of the Moose River? Why does this “controversy” even exist (I can’t believe that it is for the sake of a few crazy “outliers”, but it is possible, I will admit that I find it very interesting) Brian, I think there are a lot of questions that are still unanswered.

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  35. bob says:

    Mateo, the buck does not stop with the assessment unit of the local township rather( andI have done it) with real property small claims court. In fact, they saw it my way(Iguess my opinion did matter huh?) and reduce the assessment on the property by 24%(from $66000 to 50000) after the local assessor and grievance board refused to budge(imagine that)

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  36. Phil says:

    Bob, my point was that when a property owner buys land with an NIF waterway, it is encumbered from the start with the common law right of navigation. But I take your point that the right might not have been acknowledged in the past, and so in that sense it’s something new.

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  37. mateo says:

    Bob, are you saying your assessment was reduced because paddlers were allowed to portage on your property?

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  38. Paul says:

    I think it is fair to say that if you are someone like a landowner that has had the state buy all the surrounding river corridors then had them put in launching spots (for example the East Branch of the St. Regis River) you could easily argue that the increased traffic would lower the value of the land. True the easement was already there but if you now have lots of paddlers passing and/or carrying through the land has lost some value. One of the most sought after benefits of these type of parcels is the privacy they afford (or did afford). As an example imagine if you are selling the land, if the potential buyers are there when the boy scout troop is carrying 10 canoes across the front lawn that separates the camp from the river you might not have as good a showing as you had hoped for! But none of this changes what the law says. Either the waterway is Navigable-in-fact or it is not. If it is, you have to deal with anything that is legal. At this point it could be logs, it could be barges, it could be canoes, it could be rafts, it could be kayaks, it could be jet skis, it could be power boats, it could be air boats, it could be a guy dragging his boat across your lawn (any recreational use you can imagine)…… If that water body is navigable-in-fact you cannot stop any of it. At least that is what the court has ruled to date. I see a fundamental problem with this, others do not.

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  39. bob says:

    I’m saying my assessment was reduced because the state sited a portage on a boundry line of mine complete with port-a-john. A pre-apprasail and a post-appraisail made it apparent my and others properties had lost value as a result.

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  40. Marc says:

    Paul,

    You keep asking for someone to “please show me in the court decision where the court ruled that the river was navigable-in-fact.” I would turn that around to you– on what do you base your contention that the Shingle Shanty, or any other navigable, publicly accessible stream, is not navigable-in-fact?

    Seems to me that the landowners are using classic FUD tactics: spreading Fear, Uncertainty and Doubt, so that no one will dare challenge their prohibition use of the waterway passing through their lands. That is, of course, why the Adirondack League Club chose to sue the Moose River Paddlers for millions, even though they clearly suffered no such damage. “We can afford big-time lawyers, so you little people better tremble in your boots when you think of crossing our property.” Well, that’s a lousy approach to life, in my opinion, but if that’s what it takes, let the suing begin. I’ll gladly contribute to a legal defense fund for the paddlers!

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  41. anon says:

    Bob, your previous post/question was :”So as a private land owne,r [sic] has the value of my property been reduced and should I therefore be going to Real Poperty[sic] small claims to have my assessed value reduced andresulting[sic] taxes decreased?

    I don’t understand. It sounds like you already have had a court answer this question better than anyone on this blog could.

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  42. Brian Mann says:

    Hi all –

    Lots of good stuff here. Three points, then I have to drop out for the day as I’m traveling.

    1. Let me respond to one comment by Solidago, regarding why people can’t trespass on foot.

    The answer is simple: because the law doesn’t allow it. I’ve had various other permutations of this argument suggested to me.

    “What if I came on your land and did X, wouldn’t you feel grieved?”

    My answer is, “It depends on the law.”

    In this case, river navigation rights established by the courts in New York state under common law are very different than other kinds of private-property access laws.

    2. To Paul, I’ll say this: You keep suggesting that I’ve cherry-picked my experts.

    But my experts here include former APA chairman, Adirondack Landowners Association, former SUNY ESF president, AND Shingle Shanty Preserve employee Ross Whaley.

    Also, John McDonald, one of the premier property-rights advocates in the region and the owner of a private land parcel that surrounds the Ausable River.

    They disagree with your interpretation.

    3. The fact that the DEC has treaded very carefully around this issue — not just on Shingle Shanty Brook but elsewhere — is interesting and worthy of discussion.

    Why did the state shelve its effort to identify clearly navigable-in-fact rivers, begun in 1989?

    That preliminary list included no fewer than 55 Adirondack rivers and stretches of river that were identified as possibly warranting more public navigation access — including Shingle Shanty.

    Thanks again for the discussion!

    –Brian, NCPR

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  43. Paul says:

    “I would turn that around to you– on what do you base your contention that the Shingle Shanty, or any other navigable, publicly accessible stream, is not navigable-in-fact?”

    Marc, that is a fair question? I will admit that mine was somewhat rhetorical since I already knew that the answer was none. Not even the South Branch of the Moose River qualifies. Unfortunately, for all interested parties the answer is “I don’t know if Shingle Shanty Brook (or others) are navigable-in-fact”. It very well maybe. I wouldn’t blame deep pocketed landowners on that ambiguity (BTW I am not one of them). In this case the state is supporting the ambiguity. If they would simply ticket a paddler for trespass (for example Brian for his trip) the we could have the court settle the question for us with very little expense. Brian could go to court and plead not guilty using the common law as the reason. Assuming the judge is not some “outlier” as Brian describes me then he (or she) will throw out the case, problem solved.

    Marc, you should also consider donating to a legal defense fund for jet skiers and any other recreational use of these water bodies since that is what is being supported through any such effort. It is not fair that paddlers should have to pay all the bills!

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  44. Paul says:

    Brian,

    The DEC was a co-defendant in the Moose River case, why THEY are “treading carefully around” this issue is an excellent question.

    But I will concede that your guys do disagree with my interpretation, and I am sure they are correct. But to call it an “outlier” may not be all that accurate given all these other folks that don’t seem to see it as a settled issue (perhaps the defendant included).

    Safe travels.

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  45. knuckleheadedliberal says:

    Wow. Isn’t it interesting that the right to own property was specifically removed from early drafts of the Declaration of Independence?

    Sometimes by granting one right you are taking another. The right for one person to own property negates the right of someone else to use that property which at one time had been held in common by the people who were here first.

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  46. Marc says:

    Paul, it’s as fair as asking why DEC hasn’t simply ticketed the paddlers. Given that the landowners may be presumed to be rather well-connected politically, perhaps it has to do with the owners not _wanting_ the paddler’s to be ticketed. One could as well ask, why haven’t the owners chosen to sue the paddlers? My suspicion is that the owners see the handwriting on the courthouse wall, and the _last_ thing they want is for this issue to be settled in court. They see that their last defense lies in continued Fear, Uncertainty and Doubt.

    And the Jet Ski issue is entirely a red herring– none of the waterways in question (to the best of my knowledge) are continuous with public waters where jet skis are permitted. From what I can see, jet skiers don’t much care where they are, so long as they can make plenty of waves and noise.

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  47. Solidago says:

    Brian, the point of my question regarding travel on foot was to get you to acknowledge that necessity provides the justification for any easement or right-of-way. The state doesn’t arbitrarily hold easements here, there and everywhere for public use.

    So why is it that “river navigation rights established by the courts in New York state under common law are very different than other kinds of private-property access laws”? Because prior to mechanized transportation, waterways of suitable character and sufficient capacity were the only means for transporting commercially significant quantities of bulky commodities such as logs to market. Pick up a copy of Barbara McMartin’s “The Great Forest of the Adirondacks” if you don’t have one already. In there you will find that virtually every waterway in the Adirondacks that could have been used to transport goods that “would have no avenue to market” was used to transport such goods – both in their natural state and ordinary capacity – but more commonly with the aid of numerous dams, etc. – which posed an issue for the Sierra Club in their attempt to argue that the South Branch was navigable-in-fact.

    While we’re on the topic of history, you should know that virtually every waterway in the Adirondacks was used by 19th century guides. Why isn’t this fact ever discussed in the opinions? Because capacity for commercial use per se doesn’t matter – what matters is the waterway’s capacity to transport commercially significant volumes of goods that otherwise “would have no avenue to market.”

    I think it is acknowledged that – despite the extensive and intensive history of logging in the area – the disputed waterway does not have a history of transporting commercially significant volumes of goods that otherwise “would have no avenue to market.” Would you argue in court that it has the capacity?

    Switching gears, you haven’t cherry-picked your experts, but you certainly have done a grand job of mischaracterizing their statements. Ross Whaley stated what no one disputes – that “the case law over time has made it clear that navigable-in-fact streams can be navigated by paddlers.” I don’t see how this counters anything that Paul has said, or contradicts Brandreth’s position. Apparently John McDonald thinks that the Ausable Chasm is navigable-in-fact. Okay. There isn’t a question as to what’s permitted on a navigable-in-fact waterway – the question is whether or not specific waterways being brought into dispute by a few activists are, despite their history, navigable-in-fact and therefore public highways over which landowners have no control.

    So, you didn’t ask the DEC for comment?

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  48. Bret4207 says:

    Mervel, I wish this blog had smilies we could use so I could tell if you were joking or just pot stirring.

    Here are a couple of twists on this issue. A creek runs around both sides of my farm. The beaver have established runs from the creek up through into my lands. Some of the land is well over 1/2 mile from the creek, but by poling or pushing a canoe or kayak up those channels I suppose they are “navigable in fact”. So just how should you folks advise me to respond should I come upon a person in a canoe duck hunting on one of my ponds? According to the case law he merely utilized the waterway.

    If “navigable in fact” is the standard and a river is in fact navigable then how can the motive power of the vessel be limited? I’ve run a power boat on the upper Hudson in the North River and Riverside areas. Why not start running jet boat tours of the Blue Ledges? They do similar things out west. We could go upstream through the Gooley flow and further. Seems perfectly within the law in my opinion.

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  49. Bret4207 says:

    Mervel, I wish this blog had smilies we could use so I could tell if you were joking or just pot stirring.

    Here are a couple of twists on this issue. A creek runs around both sides of my farm. The beaver have established runs from the creek up through into my lands. Some of the land is well over 1/2 mile from the creek, but by poling or pushing a canoe or kayak up those channels I suppose they are “navigable in fact”. So just how should you folks advise me to respond should I come upon a person in a canoe duck hunting on one of my ponds? According to the case law he merely utilized the waterway.

    If “navigable in fact” is the standard and a river is in fact navigable then how can the motive power of the vessel be limited? I’ve run a power boat on the upper Hudson in the North River and Riverside areas. Why not start running jet boat tours of the Blue Ledges? They do similar things out west. We could go upstream through the Gooley flow and further. Seems perfectly within the law in my opinion.

    You can see where one groups desire to take their recreation and the resulting case law can have other unintended consequences.

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  50. Bret4207 says:

    Shoot, so how do you edit a post here?

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