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!

Photo: Mike Leeds

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 letters@canoekayak.com

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Add a Comment

  • http://@BigCountryMP Chris Levings

    You have to respect land owners property. Cutting fencing and trespassing is total disrespect. Every floater I know here in okla will track down land owners to make sure it’s okay to use the land for put in or take out. Almost every time the land owner doesnt care unless there are cattle around. You wouldn’t want kids jumping your fence and crossing your back yard on their way to school every time they feel like it. A coworker of mine tracked down a land owner in Missouri because there was a great put in according to Google Earth. The owner even let him park his truck down by the river for a week. My point is be respectful and let the property owner know your intentions/plans. Reasure them you will not make ruts or litter. If you do this the next paddler that comes along will be welcome.

    If you need to get ahold of me it will be easier on Twitter

    Thank y’all from Oklahoma
    Former Army MP and Ass Kicker
    Chris Levings

  • http://facebook.com/uk Mr B Hickman

    Hello, sorry to hear of your paddling problems there in the states.
    I find it incredible that there are people who regardless of creed and colour, Believe they own the water/river/stream, how did they create it the water that is? water as we all know is a gift the planet gives for free, and for every one.
    People who own or intend to buy land next to water of any type should be asking them selves “Surely this is going to be used”
    Its like a “City Dweller” moving to the country then complaining about the noise, Roosters and Cows make.
    Another thing that puzzles me is how can a peace of water, that flows from a spring etc be bought by the so say individuals that it flows past untill it reaches the sea!
    money for old rope isnt it.
    In Scotland where I live, we have the “right to roam act” and the right to use the waters,
    There are many landed gentry (rich land owners) who still demand that people not use there waters (Salmon fisheries) big money here, the kayak and canoe union with the aid of the Scottish Government, told the land owners, people have the right to use the land/waters on it, as long as no criminal damage would be caused.
    the land owner also had no right to ban or cause inderance to people crossing there lands.
    The Bottom line is get a Government thats for the MAJORITY and not MINORITY, because failing this “MONEY TALKS”. AND THE HAVES WILL RULE.
    The world belongs to the People and not the chosen few?
    And money always corrupts!
    name and address supplied,
    GOOD LUCK!

  • http://www.kayakrax.com Kayak Rack Mack

    I’m with you… “duck the fences” the burden of proof is on the prosecution.

    Besides at the rate our federal lands are being restricted there won’t be many waterways left for us to explore. It’s time for outdoorsmen and women to stand up and say “I’m mad as hell, and I’m not gonna take it anymore!”

  • Pingback: When They Want to Take Away Wilderness - PaddlingLight.com

  • Justin

    Perhaps this will clear up some misunderstandings regarding the extent of paddlers rights under the common law in New York.

    Our highest court ruled that the Raquette River between Colton – http://vimeo.com/14329123http://vimeo.com/48830509 – and Raymondville – http://www.youtube.com/watch?v=_XCl41yhCrchttp://www.youtube.com/watch?v=uZd7C92bg2I – was not a public highway under the common law – http://www.courts.state.ny.us/reporter/archives/Morgan_King.htm

    According to the opinion, the river averaged nearly 300 feet wide. A map of this section can be seen here – http://www.dec.ny.gov/outdoor/55378.html

    If our highest court held that a river that’s nearly 300 feet wide is not a public highway under New York common law, how can this be?
    http://www.youtube.com/watch?v=Ny6tQflFGTw

  • Justin

    Perhaps this will clear up some misunderstandings regarding the extent of paddlers rights under the common law in New York.

    Our highest court ruled that the Raquette River between Colton – http://vimeo.com/14329123http://vimeo.com/48830509 – and Raymondville – http://www.youtube.com/watch?v=_XCl41yhCrchttp://www.youtube.com/watch?v=uZd7C92bg2I – was not a public highway under the common law – http://www.courts.state.ny.us/reporter/archives/Morgan_King.htm

    According to the opinion, the river averaged nearly 300 feet wide. A map of this section can be seen here – http://www.dec.ny.gov/outdoor/55378.html

    If our highest court held that a river that’s nearly 300 feet wide is not a public highway under New York common law, how can this be?
    http://www.youtube.com/watch?v=Ny6tQflFGTw

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