Morning Read: Paddlers vs. property rights revisited
If you’ve been wondering about the latest legal dust-up over paddling rights in the Adirondack Park, Will Doolittle has a good backgrounder in today’s Glens Falls Post-Star.
As modes of transport have changed – trucks, not rivers, are used to move logs to market these days – courts have recognized recreation as a commercial use, too, according to advocates for paddlers’ rights.
In the Moose River case, the judges wrote, “In line with these modern circumstances and our precedents, we are satisfied that recreational use should be part of the navigability analysis.”
But does the Moose River opinion mean that any waterway that can be paddled by anyone in any boat is navigable in fact, and must be open to the public?
Meanwhile, the Albany Times-Union is urging the state legislature to pass a law clarifying once and for all which waterways are indeed open to navigation.
It’s been 22 years since a draft of a still unpublished DEC list cited 253 waterways statewide, 55 in the Adirondacks, that could qualify for common law right of passage under a better understood law.
This latest lawsuit involves journalist and Adirondack Explorer editor Phil Brown’s decision to paddle a posted section of Shingle Shanty Brook which requires a portage over private land.
You can hear my report about the conflict, and my trip along the route, here.
Tags: adirondacks, land use, outdoor recreation
.jpg)
“Brown, an outdoorsman, took the trip and wrote about it not only because he likes paddling through peaceful streams, listening to fish jump while swatting at clouds of black flies,”
What a classic quote!
Here is one tactic for the “property rights” side. Why not suggest legislation that would deny recreational access (even with it’s perceived commercial impact) across waterways of this type for environmental protection reasons? There is an obvious chance for invasive contamination on these type of trips as paddlers go from one water body to the next without good ways to clean their boats and bilges. As Phil describes in some of his stories you have a boat full of water that you pick up in one stream or pond and can easily (accidentally) drop it in another stream or pond. At least at public launches we are trying to get folks to prevent this type of thing. Can you really do it way back in the woods?
Also, there is obviously a degree of environmental degradation that will result from this type of recreational use of these waterways. Especially as more folks start to use them and you start getting large canoe groups using some of these waterways. Finally, certain private parcels are the best places to protect things like brood stocks on native brook trout and other species. These could also be protected through this type of legislation.
There are tons of waterways open to the public without this, why not leave a few private waterways available for some real protection?
I really think that Phil’s fight here is damaging the image of the environmental movement in the Adirondacks.
If environmental groups don’t lobby for or, even come out opposed to legislation like this then maybe Adirondack “environmental” groups are really for something other than they claim? This would give them a chance to prove their salt.
Paul, in theory legislation is a safer route (from an environmental perspective) than liberalizing the common law to allow unrestricted recreational travel across any wetland that can be entered and exited from public property. Unfortunately, the TU piece lends its support to the recreational activists’ campaign.
The true environmental community really needs to stand up against the interpretation of the common law being promoted by the recreational activists, which is that property owners in the State of New York have no right to restrict recreational travel across their wetlands for any reason whatsoever, whether it is for privacy, to protect wildlife such as nesting waterfowl, or to prevent the spread of invasive species.
It’s funny hearing all of these people who so often masquerade as environmentalists arguing fiercely for unrestricted access to protected wetlands throughout New York, frequently making economic arguments about the value of recreation as though there is nothing more important than the economic exploitation of our wild areas.
I’ve said this before and I’ll say it again without offering any opinions, legal or otherwise as to this case. If you want privacy, forget about waterfront.
Water, ocean front, lakes, rivers and streams are avenues for you to go some place and for someone else to come to or go by you.
Paul and Solidago, I think you overstate the risk to the environment because you disagree with the idea that the public should be allowed to paddle through private land.
Phil, you are well aware that the interpretation of the common law you promote does not allow any property owner – whether it is a ‘big bad land baron’ or the local Audobon Society – to prohibit or impose any restrictions on recreational travel across their wetlands. According to the complaint you published, it looks like you might have violated not only what the property owners feel are their rights, but a highly restrictive conservation easement held by a third party as well.
Phil, I think that you and others continue to understate the risk to the environment. Personally I have no stake in this, beyond that fact that I am willing to forgo using these waterways. Clearly you now have a very serious stake in the outcome here.