A twenty year standstill

State legislators tried to clarify paddlers’ rights as far back as 1989—and they’re still trying..

By PHIL BROWN

The Greek philosopher Heraclitus once said, “You cannot step into the same river twice.” His idea was that everything is always in flux, nothing stays the same.

Heraclitus never set foot in Albany.

More than twenty years ago, Buffalo Assemblyman Bill Hoyt, a passionate wilderness paddler, introduced a bill to codify the public’s common-law right of navigation. If enacted, it likely would have mitigated the confusion over the public’s right to paddle on rivers that pass through private land in the Adirondacks and elsewhere in the state.

The bill did pass in the Assembly, but a companion bill in the Senate never made it to the floor for a vote.

In recent years, Buffalo Assemblyman Sam Hoyt has proposed legislation similar to the bill his father first introduced in 1989. Although the Assembly approved the current bill more than once, the Senate never got around to voting on it. The Senate sponsor, John Flanagan, a Republican from Long Island, did not push to move the bill out of the Senate Environmental Conservation Committee.

Maybe this year will be different.

Flanagan told the Explorer that questions his staff had raised about the bill have been resolved and that he expects to ask for a committee vote this spring.

What’s more, Sam Hoyt said he hopes to find a Democratic sponsor for the bill, which could speed its passage. The Senate and the Assembly are both controlled by Democrats.

If a bill is passed, it not only would codify the common law, but it also would authorize the state Department of Environmental Conservation (DEC) to prepare a list of navigable waterways. The list would be subject to revision based on public input or legal challenges.

Neil Woodworth, executive director of the Adirondack Mountain Club (ADK), said such a list would dispel confusion over whether or not the public has the right to paddle, for example, Shingle Shanty Brook, the Beaver River, and the West Branch of the St. Regis—three Adirondack rivers whose navigability under the law remains in question.

“The uncertainty for both landowners and the public would be eliminated,” Woodworth said. “Everybody would know where they stand.” He added that DEC also could spell out where the public would be allowed to portage on private land around rapids and other obstructions.

The 1989 legislation lacked a provision for a list of navigable waterways, but back then DEC was working on agency regulations that also would have clarified the common law, and as part of this initiative, the department did prepare such a list. Because it was a preliminary list, it was never released to the public.The Explorer, however, recently obtained a copy.

The list includes all or parts of 253 rivers throughout the state. Fifty-five are in the Adirondack Park, among them the three mentioned by Woodworth. Most of the Adirondack rivers are not in dispute, but some no doubt would face challenges from landowners if the list were proposed today.

Take Shingle Shanty Brook. Last year, I canoed through private land down part of the brook as well as two connecting waterways—taking a route that links two parcels of public land. Although the landowners had put up a cable and signs to keep paddlers out, I thought the route should be open under the common law. After my article on the trip appeared in the July-August issue of the Explorer, the Sierra Club asked DEC to force the owners to remove the cable and “intimidating signs.” DEC is negotiating with the club and the landowners to try to resolve the matter.

In an earlier article in the Explorer, a private landowner disputed the public’s right to paddle the Beaver River through private land between Lake Lila and Stillwater Reservoir. The same article raised the question of the navigability of the West Branch of the St. Regis, which the guidebook Adirondack Canoe Waters: North Flow describes as “the most tightly locked-up river of the northern Adirondacks.” It flows through private land for forty miles.

Don Morris, one of the authors of the book, once asked a landowner for permission to paddle the West Branch but was rebuffed. He is uncertain whether most paddlers could do the through trip in a day—that is, without illegally camping on private land. “I’m going to guess it would be an arduous trip,” he said, “but I don’t know how difficult it would be or how long it would take.”

The East Branch of the St. Regis, which meanders partly through private land, also made DEC’s draft list. Mary Thill canoed this river last year for an Explorer article and saw signs warning people against paddling—“under strict penalty of the law.” The landowner told Thill that the signs were put up before he bought the land, and though he acknowledged the public right of navigation, he had no plans to take them down.

Another river on the list is the Main Branch of the St. Regis (called the Middle Branch in Adirondack Canoe Waters), which passes through Brandon Park, a large tract of private land west of Paul Smiths. If this stretch were open to the public, paddlers could access it from a bridge on the Blue Mountain Road and take out on public land more than a dozen miles downstream. Last year, a DEC spokesman told the Explorer that the department had no opinion on the navigability of this stretch. A caretaker for Brandon Park, however, said he thought it should be closed to the public. DEC’s preliminary list suggests the Main Branch is navigable from the Paul Smiths area all the way to the St. Lawrence River.

The list contains a few surprises, most notably Big Brook. The first six miles of Big Brook, from its source at Stony Pond to Route 30, flows through land owned by the Whitney family. The stretch includes the five-mile-long Slim Pond. Were the whole brook open to the public, as the list proposes, then paddlers presumably could put in at Route 30 and travel upstream to the two ponds. The Whitneys, however, would not look kindly upon canoeists paddling through their thirty-six-thousand-acre wilderness estate.

“We wouldn’t allow it. They’d be cited for trespass,” said John Hendrickson, who is married to the heiress Marylou Whitney. He added that Big Brook is little more than a trickle most of the year. “It wouldn’t be much fun anyway,” he said.

“They’d be walking half the time.”

The ADK’s Woodworth thinks Hendrickson may have the law on his side. He pointed out that a 1995 court decision, in Hanigan et al. v. State of New York, suggests it’s not permissible to paddle to a “keyhole” pond or lake that’s surrounded by private land. “If you can’t exit the pond to continue your journey to reach public land, on the water, then that makes it a keyhole pond,” he said, “and that means it’s probably not accessible to the public.”

In contrast, Woodworth thinks the public does have the right to paddle downstream on Big Brook from Route 30 to Long Lake—assuming the stream is navigable—since the trip ends on a public waterway. As a matter of fact, this route is described in Adirondack Canoe Waters: North Flow, which is published by ADK. The book recommends that the trip be done in spring when water is high. “At other times shallow riffles can make it, literally and figuratively, a drag,” the authors warn.

Interestingly, the list also includes 2,290-acre Little Tupper Lake. Although now in the hands of the state, Little Tupper was owned by the Whitneys at the time the list was prepared. The outlet passes under a public road, and presumably the bridge would have been the access point if the lake were declared navigable under the law.

Woodworth said it could be argued that Little Tupper, despite its large size, fits into the keyhole-lake exception. He added, however, that DEC’s list was drawn up several years before the Hanigan decision.

Also, it should be stressed that DEC’s list was preliminary. The department solicited suggestions from its staff, ADK paddlers, and American Whitewater (a nonprofit group devoted to protecting whitewater resources) and likely would have refined the list before subjecting it to public hearings. And if the regulations had gone forward, the list might have been refined further based on public input.

“It needed to be screened further, revised further before the public hearings. It needed work,” said Charles Morrison, who helped draft the proposed regulations as DEC’s director of natural resources planning.

Nevertheless, if the department is asked to draw up another list of navigable waterways, it likely will consult the old list.

Although DEC had been on the verge of going public with the regulations and the list in the early 1990s, some people in the administration of Governor Mario Cuomo doubted the agency had the right to act without statutory authority, according to Philip Wardell, one of the DEC lawyers who worked on the proposal.

“They didn’t want to go ahead,” said Wardell, who now lives in New Mexico. Of course, he and other DEC attorneys believed that the agency did have the authority to act on its own. “There will always be a question until you put out regulations and they are tested in court,” he said.

The efforts to clarify navigation rights—whether in statute or regulations—came to a halt in 1991 after four canoeists and a kayaker paddled down the South Branch of the Moose through posted land owned by the Adirondack League Club. Their aim was to put the common law to the test.

State officials decided to wait to see how the dispute played out.

The club sued the paddlers, contending that the right of navigation encompassed only commercial transport and thus excluded recreational uses. In 1998, the Court of Appeals, the state’s highest tribunal, ruled against the club. This was a major victory for paddlers, but John Caffry, who represented ADK in the case, asserts that it did not substantially alter the common law.

“By elevating recreational travel to the same level of significance in the navigational analysis as commercial transport, the Court merely updated the test to reflect that today’s most common use of New York’s waterways is for recreation,” Caffry and Woodworth wrote in The New York Environmental Lawyer after the decision.

The Court of Appeals sent the case back to the trial court to determine whether the South Branch of the Moose passes the navigability test. In 2000, the two sides reached a settlement that allows the public to paddle the river between May 1 and Oct. 15, provided the water is high enough (as measured by a gauge at McKeever).

The decision put the legislature and DEC in a stronger position to codify by statute or clarify by regulations the right of navigation. But more than a decade had passed since the first bill was introduced, and the times and faces had changed. Bill Hoyt, the ardent champion of paddlers, died of a heart attack in 1992, and after Governor Cuomo lost his re-election bid in 1994, the DEC lawyers who had spearheaded the navigation-rights initiative left the agency.

The issue fell off the radar screen.

Although paddlers won the right to go down the South Branch of the Moose, not much else had changed. But Charles Morrison, who had retired from DEC, did not forget the cause. In 2006, he persuaded Assemblyman Pete Grannis, a Democrat from Manhattan, to introduce another bill. When Grannis was named DEC commissioner the next year, Sam Hoyt became the bill’s sponsor. The same year, John Flanagan agreed to sponsor a Senate bill.

The Adirondack Landowners Association, which represents many of the Park’s largest property owners, has raised objections to the legislation. The same organization fought against the 1989 bill and had encouraged then-Senator Ronald Stafford to block it.

Ross Whaley, the group’s spokesman (and a former chairman of the Adirondack Park Agency), said it makes sense to pass legislation to clarify the law, but he criticized the current bill as “incomplete.” He would like to see it amended to:

• Specify that navigation rights do not apply to keyhole lakes and ponds and dead-end streams.

• Exclude non-traditional craft such as jet-skis and inflatable tubes.

• Give DEC authority to close waterways to the public to check the spread of invasive species or to protect scientific research.

“If legislation is to be passed, I think there is better legislation than what is currently proposed,” Whaley added. “I am willing to sit down and see what we can hammer out.”

State Senator Betty Little, who inherited Stafford’s seat, shares Whaley’s concerns, yet she doesn’t object in principle to clarifying navigation rights in a statute, according to her spokesman, Dan MacEntee. “She doesn’t support the current bill, but she is certainly amenable to having discussions with the sponsors,” MacEntee said.

Woodworth said he, too, is willing to negotiate, but he is especially leery of letting DEC close waterways for scientific research. During the Moose River case, he said, the Adirondack League Club claimed—“without a shred of evidence’’—that paddlers would jeopardize fish studies. He fears other landowners would make similar claims just to keep out paddlers. “I think it’d be used as an excuse to diminish the public’s right to use waterways,” he said.

DEC has not taken an official position on the legislation, but the agency’s staff helped craft the bill to ensure it did not go beyond the common law. And, of course, the department’s leader had sponsored the bill when he was in the Assembly.

If the legislation fails to pass, will DEC adopt regulations on its own? That’s always an option, but DEC attorney Ken Hamm says the department would like to resolve navigation disputes through negotiation. “We would prefer to see if we can work out arrangements that are acceptable to everybody,” he said.

Back in the early nineties, Woodworth favored the statutory approach, given the doubts over the department’s rule-making authority. But he says the Moose River decision, by upholding the rights of paddlers, removed those doubts.

“My position today is either [a statute or regulations] would get us to where we need to be,” he said.

If nothing is done, Woodworth said, uncertainty will continue to reign and paddlers will be forced to go to court to determine which waterways are open to the public on a case-by-case basis. “This would be a time-consuming and expensive process,” he remarked.

Morrison argued that there is the additional virtue of making the law accessible in one place, whether in a statute book or in DEC regulations.

“We need to make the common-law right of navigation visible and understandable and obtainable by the average person,” Morrison said. “They shouldn’t have to sift through a hundred cases in order to get the law.”

Not every paddling advocate agrees. Pace University law professor John Humbach, who co-wrote, with Morrison, a booklet on navigation rights, contends state officials should leave the common law alone and let it evolve unimpeded by statutes.

And yet it was Humbach, then under contract with DEC, who drafted the first navigation-rights bill in 1988. Someone leaked the proposal to the legislature before the department could act, and it became the bill sponsored by Bill Hoyt.

After observing the legislative process up close, Humbach now fears that efforts to codify the common law will be tainted by politics and end up diminishing paddlers’ rights.

“What we’ve got now provides just the right balance between public and private interests,” he said. “The bill that goes in may not be the bill that comes out. No bill is the best bill.”

This being Albany, Humbach may get his wish.