Navigation rights question

[colden46]

It's generally accepted that the public's right to paddle navigable waterways does not include the right to enter "keyhole ponds"; in other words, a lake entirely surrounded by private land in which the waterway you were paddling dead-ends. For example, Follensby Pond off the Raquette River.

On the other hand, it's generally accepted that it is legal to paddle through lakes that have public navigable water on either end. For example, Nehasane Lake: Lake Lila is public and Stillwater Res is public, so you can paddle down the Beaver R and through Nehasane L legally.

However, what happens if you didn't paddle from Lila to Stillwater. What if you just paddled down from Lila, took a spin around Nehasane, and paddled back up to Lila?

On the one hand, it's kind of like the keyhole pond -- you're not actually using the river to get from point A to point B, which was the original point of these navigation rights; you're using it to explore a "private" body of water. On the other, the fact that the river is navigable-in-fact means that you can be on any part of it legally, so should it really matter what your route choice is?

Any thoughts? And don't worry, I know this isn't a law forum, I'm just curious what other folks have to say!

[Bill I.]

Considering that the South Branch Moose settlement allowed passage across the Adirondack League Club, and actions directly related to navigation such as scouting rapids and carrying around them, but explicitly prohibited all other activities such as fishing, picnicking, and camping...

...my GUESS would be that the river is only "navigable in fact" to the extent that it serves a useful purpose. Using the river for any purpose other than passing through would not be covered.

Interestingly, I was talking recently with one of the people on the South Branch trip that sparked the lawsuit. What I didn't know was that these people "tested" several rivers, including the Beaver River, the West Branch St. Regis, as well as the South Moose. In all of these cases the group notified the landowners beforehand that they were going to paddle these rivers on such-and-such date. In two cases, the landowners made no response and the trips proceded without incident. Only the League Club took the bait. They had a number of observers stationed along the river, including people in camouflage taking pictures, and of course a "welcoming committee" on one of the bridges.

[Wldrns]

... What if you just paddled down from Lila, took a spin around Nehasane, and paddled back up to Lila?

On the one hand, it's kind of like the keyhole pond -- you're not actually using the river to get from point A to point B, which was the original point of these navigation rights; you're using it to explore a "private" body of water. On the other, the fact that the river is navigable-in-fact means that you can be on any part of it legally, so should it really matter what your route choice is?

That's a tough one. The Association for the Protection of the Adirondacks brochure does not specifically address this question. Reasonableness may or may not play a part here. One thought is that it may be ok because according to the court ruling there is no specific time of year during which water levels must support a navigable-in-fact waterway. What if what at times what is otherwise a reasonable passage turns into an impossibly long portage due to extremely low water? In that case you would have to turn around and return to point A. But it could be argued that you should have known that before starting out.

[colden46]

One thought is that it may be ok because according to the court ruling there is no specific time of year during which water levels must support a navigable-in-fact waterway. What if what at times what is otherwise a reasonable passage turns into an impossibly long portage due to extremely low water? In that case you would have to turn around and return to point A. But it could be argued that you should have known that before starting out.

True, I can certainly think of a few valid reasons where you'd want to turn around, in addition to the one you mentioned. Injury or illness, sudden weather change, huge unsafe logjam, etc. Seems like that would make winning a case difficult from a landowner's perspective, though a court's ruling could well depend on the exact circumstances. That said, I doubt a court will ever get a chance to rule on it -- who's going to take the time and risk to bring someone to court for it?

It's an interesting question though. My personal guess is that the answer depends on if you actually intended to go from point A to point B. I can't imagine a court requiring you to complete every journey you start, as long as you made a good-faith effort to do it. If you intended from the outset to only visit the private lake, I would tend to agree with wildriver in that it's probably not covered.

In all of these cases the group notified the landowners beforehand that they were going to paddle these rivers on such-and-such date. ... Only the League Club took the bait. They had a number of observers stationed along the river, including people in camouflage taking pictures, and of course a "welcoming committee" on one of the bridges.

The ALC folks were friendly at Woodhull Lake yesterday. A few of them even waved as we paddled by. Maybe I should have called them first to warn them that we'd be there

[Bill I.]

My personal guess is that the answer depends on if you actually intended to go from point A to point B. I can't imagine a court requiring you to complete every journey you start, as long as you made a good-faith effort to do it. If you intended from the outset to only visit the private lake, I would tend to agree with wildriver in that it's probably not covered.

The South Branch Moose settlement more or less ruled out this possibility. The river gauge has to be at a certain depth for the trip to be legal. If the river is too low, then the river is off-limits.

Of course, that settlement was specific to that one river.

[Navig8r]

Considering that the South Branch Moose settlement allowed passage across the Adirondack League Club, and actions directly related to navigation such as scouting rapids and carrying around them, but explicitly prohibited all other activities such as fishing, picnicking, and camping...

...my GUESS would be that the river is only "navigable in fact" to the extent that it serves a useful purpose. Using the river for any purpose other than passing through would not be covered.

I believe the court ruled that RECREATION was a legitimate purpose. I would think that if the body of water can be reasonably paddled to, most of the year (not just high water situations) from a publicly accessable point, then it would be OK to paddle on that body of water.

[Wldrns]

I believe the court ruled that RECREATION was a legitimate purpose. I would think that if the body of water can be reasonably paddled to, most of the year (not just high water situations) from a publicly accessable point, then it would be OK to paddle on that body of water.

I don't think that recreation being a legitimate purpose in they eyes of the court necessarily gives you a right to enter an area to play around without considering "navigation in fact" of the waterway. A lawyer could argue you are only being allowed safe passage on your way to recreate. It is clear you are not allowed to wander far from the direct carry path for any such recreational purpose; you cannot take a side hike nor can you fish or hunt. Why should it be any different in sections of deeper water? But unless and until more test cases arise we can only debate what might come about. Are there any well funded volunteers willing to "test the waters"?

[Awetcanoe]

If I read your question properly, entering a body of water that can be legally passed through but not passing through.
The law allows you to pass through from point A to B as in paddling downstream but also you may paddle up stream as a return trip.
It is not stipulated where the turn around needs to be so it shall not be required to paddle through into the outflow before starting your return trip.

[chairrock]

This months CONSERVATIONIST has a good article on the "States "definition of Navigable. Here is a link to the online version ,however this months issue is not online yet...so ....

http://www.dec.ny.gov/pubs/conservationist.html

[Bill I.]

I believe the court ruled that RECREATION was a legitimate purpose. I would think that if the body of water can be reasonably paddled to, most of the year (not just high water situations) from a publicly accessable point, then it would be OK to paddle on that body of water.

I think you are half correct. It is true that a stream that is shallow and rocky in midsummer can meet the test for being navigable in fact.

But at the same time, and for the same reason, a waterway big enough to hold the QEII even in a drought can fail the same legal test.

The key is that the waterway has to be "useful", and to be useful it has to go somewhere that has public access at both ends.

But this is just my educated guess. The person who would know more authoritatively is Woodspirit. If only we can lure him to this thread...

[Bill I.]

But unless and until more test cases arise we can only debate what might come about. Are there any well funded volunteers willing to "test the waters"?

Sort of a risky proposition, don't you think? Say just such a well funded group stepped forward once again, found a section of river passing through a large single-owner property, and prompted the necessary reaction from that owner. The legal fun commences, large amounts of money are spent, and then...


...the state buys the land and all former access issues become moot.

There are essentially three potential resolutions that could resolve the navigability issue once and for all:

1. Each river could be contested individually in court. But as hinted above, this requires the parties on BOTH sides of the issue to have the will and resources to see it through.
2. The land surrounding the rivers could be acquired by the state in fee or easement.
3. The state could simply pass a law clarifying the rights of paddlers and landowners.

[Navig8r]

Some info here: http://www.americanwhitewater.org/re...Navigation.pdf.

[Wldrns]

Some info here: http://www.americanwhitewater.org/re...Navigation.pdf.

Same reference given in post #3.

[pico23]

My guess would be that your destination doesn't have to be a set point A and B. As in you don't have to paddle beyond a certain point, navigation both ways is acceptable.

The issue with Keyhole ponds like Follensby is there is no reason for you to be on it. You cannot go further without tresspassing thus you have no reason to paddle it.

On the other hand you Lake Lila could be point B from Stillwater and it is a public waterway that you have the right to access. Stillwater Reservoir is also a public waterway. So you have the right to navigate between the two (or so one would assume but lawyers and judges and NYSP might think differently)!!!

[Navig8r]

...
The issue with Keyhole ponds like Follensby is there is no reason for you to be on it. You cannot go further without tresspassing thus you have no reason to paddle it.

I guess the further question might be; Is recreation good enough reason to paddle it?