Off the Fence
The state of paddler's rights
This story is originally featured in the July 2011 issue of Canoe & Kayak magazine, on newsstands now!
By Matthew Sturdevant
Deep in New York’s Adirondack State Park, “No Trespassing” signs warn paddlers to stay off Mud Pond, and “Posted” signs dangle from a steel cable strung across a nearby stream. Last year, Phil Brown canoed right past the signs and into a legal fight.
Brown is in New York state court defending his right to paddle the waterway, which he claims is navigable by virtue of the fact that he canoed it. In New York and most other states, landowners cannot prevent boaters from using navigable waterways. The term is open to a great deal of interpretation, however, which is why Brown’s case is far more than a legal spat about a small pond with an unappealing name. It is one of many potentially precedent-setting lawsuits and legislative battles pitting the rights of landowners against those of paddlers.
It’s a complicated issue, and I see both sides of it. My family owns waterfront property in the Adirondack foothills, and I’m also a paddler. By age 13, I was huffing an aluminum canoe on my first weeklong trek across windy lakes and muddy portages with a band of Boy Scouts from Old Forge, N.Y., to Blue Mountain Lake.
But I’ve never pushed the boundaries. I’ve never trespassed on posted land, or contemplated cutting a fence that creates a paddling hazard a dilemma that C&K editor-at-large Alan Kesselheim wrote about last year (“Crossing the Threshold,” June 2010). I’ve always respected private land by staying off of it.
Claiming a waterway, however, is an affront that’s hard for some paddlers to ignore. Phil Brown chose not to ignore it. In May 2009, he paddled the “Lila Traverse,” a 15-mile route in Adirondack State Park from Little Tupper Lake to Lake Lila that normally requires a three-quarter-mile portage. By paddling across Mud Pond and down a section of Shingle Shanty Brook both of which pass through private land Brown could avoid the carry. More importantly, he could show that the waterway is “navigable in fact,” meaning that it should be open to the public.
Brown blazed by the “No Trespassing” signs and continued on to Lake Lila. The landowners sued him for trespassing.
At the center of the case is the definition of the term “navigable.” Dennis J. Phillips, an attorney for the plaintiffs suing Brown, argues that one canoe trip does not make Mud Pond navigable. “It’s not like the Hudson River,” he says. “It’s basically a mountain pond-and-brook complex.” To further complicate matters, the six-million-acre Adirondack State Park is an anomaly, as parks go, in that it’s actually a patchwork of public and private land. Both Lake Lila and Little Tupper Lake have public boat launches, and New York owns a swath of forest and marsh connecting the two.
Access battles are playing out all over the nation. In Colorado, two rafting companies that operate on the Taylor River have been at odds for years with a Texas land developer who owns a stretch of the shoreline, and with other property owners who complain that rafters detract from their fishing resort. The landowners’ efforts to keep rafters from floating past their land have led to a protracted struggle, including ballot initiatives and a legislative effort that eventually fizzled last year.
American Whitewater represents paddlers in access lawsuits, legislative efforts and other disputes. Kevin Colburn, AW’s national stewardship director, points out that the rules governing where a person can paddle differ greatly from state to state. In California, for instance, the public may use a stream up to the high-water mark. In Maine, the public has the right to boat, hunt and fish in navigable waters.
Though state laws vary, Colburn says one thing is universal: Some people want to own public resources and keep others out. “That pressure will always be there,” he says.
The federal government sometimes enters the fray as well. The U.S. Forest Service, for example, bans boats from federal land on Georgia’s Upper Chattooga River. The agency barred boaters from the Upper Chattooga in 1976, and AW has doggedly fought the feds to restore access in a series of lawsuits dating to 1999. The Upper Chattooga contains 20 miles prime Class IV-V whitewater, cascading through some of the most scenic state forest and prime trout fishing spots in the region.
Legal fights aren’t going away soon. Paddlers are running narrower streams and tougher creeks than they did 30 years ago, notes Mark Singleton, AW’s executive director. At the same time, encroaching home and resort development continues to bring more and more waterfront land into the equation. And, let’s face it, a few ruin it for the rest. A handful of paddlers who tread on private property next to a river give all boaters a bad reputation. In Brown’s case, though, it isn’t a matter of an irresponsible canoeist. He trespassed because he believes the ponds and brook should be open to paddlers even if the land around them is private.
The court case steers into the thick weeds of legal nuance. What if a waterway has a portage: Is it still navigable? What if the portage is on private land? Does the waterway have to have a history of commercial use? What constitutes “commercial use” logging, but not trapping? Can recreational paddling be a commercial use? Are beaver dams and rocky shallows obstacles that make a river non-navigable?
Attorneys for New York’s Dept. of Environmental Conservation are trying to intervene in the case on behalf of paddlers and the public. “The public has a right to travel and enjoy this beautiful waterway without being stopped or harassed,” New York Attorney General Eric Schneiderman says.
I say the public has a right to travel waterways, too. Sure, it’s easy to agree with Brown from my living room that I would bravely cross the line for the sake of paddlers everywhere. But who wants to take on the legal fees, the time involved and the hassle of being sued?
That’s a hefty price for access when countless other rivers and lakes are available without dispute. The high cost of not crossing that line, however, means agreeing with landowners when they say the water belongs to them.
Waterways don’t belong to anyone. They’re for all of us. A fence over a river is like a homeowner declaring a no-fly zone over their roof: ridiculous.
So I say fight the easy fight first. Write to legislators, contact local media and donate to paddling advocacy groups. Failing that, duck the fences, and bring on the lawsuits.
Agree? Send your thoughts to firstname.lastname@example.org