Paddling and Property Rights

In May 2009, Adirondack Explorer editor Phil Brown made a controversial decision to paddle past "No Trespassing" signs to a two mile stretch of water, Mud Pond, that connects two parcels of state land instead of carrying his boat during a two day canoe adventure from Little Tupper to Lake Lila.  After Brown wrote about the trip and public navigation rights in the Explorer, The Brandreth Park Association and Friends of Thayer Lake sued the paddler for damages on a trespassing charge, claiming that canoeists and kayakers don't have the right to paddle on their property and that if they do, it will negate private-property rights in the Adirondacks.

Brown's decision to paddle his boat instead of carry it on a state-maintained carry trail that avoids the private land was based on his interpretation of the water as navigable-in-fact, meaning that "the water way has the potential for trade or travel" (NYSDEC, http://www.dec.ny.gov/regulations/74771.html).  A waterway that is navigable-in-fact is open to public use regardless of who owns the land or whether or not the water is posted.  The higher court's ruling upheld this standing of navigable-in-fact for the Mud Pond waterway, which of course, was not taken lightly by the landowners and managers.  In a joint statement, they argued, "the notion that any route a canoe can be floated, dragged, and carried over may now be considered a public highway should disturb anyone concerned about private property rights, the spread of invasive species, or the welfare of nesting waterfowl..." (Adirondack Explorer).  Tom Woodman, the Adirondack Explorer's publisher, took a different stance on the issue, stating that the ruling "will strengthen the right of the general public to have access to rivers that for some stretch pass through private lands.  These are fundamentally public thoroughfares and are available to all" (Adirondack Explorer).

This decision will likely have important implications both inside and outside the Adirondack Park.  The landowners' point about the spread of invasive species on boats from highly used public areas into private waterways is a real concern, however whether prohibiting public use of the these waterways will prevent invasive species more than increasing education about invasives would is questionable.  Moreover, this may cause serious arguments between the public and landowners over whether or not private land owners have full control over who can access their land and may undermine the current system of regulations for public and private lands.  While this is not necessarily a bad thing, it may lead to large changes in the near future.

The ruling may also affect water rights out West, where waterways are being severely depleted for human water needs.  If a waterway is navigable-in-fact and is thereby open to public use for travel, can a kayaker who wishes to paddle the entire length of the Colorado River into the ocean then sue all water right holders for depleting the river and preventing their ability to travel? I know that water rights and laws work differently out there, but hey, it's still interesting to think about.  It will be interesting to see how this ruling will affect land and water use in the mosaic of the Adirondack Park and beyond.


http://www.adirondackexplorer.org/stories/court-rules-paddlers
http://www.dec.ny.gov/regulations/74771.html
http://www.dec.ny.gov/docs/regions_pdf/shntybrkdcsn.pdf