The Battle for River Access Rights Continues
The public wins on the Moose, loses on the Salmon

The Adirondack League Club, Inc. v. Sierra Club, et al.
On June 15, 1991, five paddlers descended the South Branch of the Moose River from near its source in the Moose River Plains, and into the private, posted property of the Adirondack League Club. The ALC is a sportsmen's club that maintains two huge tracts of land south of Old Forge: one near Woodhull Lake, the other near Honnedaga Lake (historically known as Jock's Lake, and the site of a popular wilderness retreat). The paddlers were not trying to prove their mettle on some seldom-if-ever paddled stretch of whitewater, they were attempting to challenge the existing de facto laws regarding the rights of the public to paddle on water that flows through private property. The major issue in the case was whether or not paddlers have the right to portage around stretches of the river made unnavigable due to obstructions or dangerous rapids. The ALC was given advance notice that the trip was to occur, and the 12-mile paddle was videotaped by both groups as evidence. As expected, the ALC promptly sued the paddlers and the Sierra Club, the organizers of the outing, for tresspass in the amount of five million dollars.

The paddlers and their supporters, which came to include the Adirondack Mountain Club among many others, charged that since they were able to navigate the river, it was by right a navigable waterway, which entitled the public to use it, even though the banks and the riverbed were privately owned (this ability for public access is somewhat analogous to the public highway system passing through private land, though explicit easements called rights-of-way are obtained in the case of roads).
Remsen Falls on the Moose River
The South Branch of the Moose River at Remsen Falls. The small waterfall,
not seen in this photo, is located just a few miles downstream
of the private land boundary of the Adirondack League Club.
April 19, 1998.
The defendants moved for "summary judgement" on the navigability of the South Branch of the Moose, which would have effectively prevented a trial and declared the South Branch navigable. The case eventually worked its way up through the court system until reaching the state's highest court, the Court of Appeals, and although the motion for summary judgement was eventually denied, the case has effects reaching far beyond the navigability of a single waterway.

In the 1868 New York case Morgan v. King, it was laid out that the typical test of the navigability of a river hinges on its usefulness in commerce. However, the decision also stated that the passage of boats was not necessary for a river to be in fact navigable; that if logs could be driven downriver, without the aid of dams or other artificial modifications to the river's course, this would be proof enough of navigability.
"[A] river is, in fact, navigable, on which boats, lighters, or rafts may be floated to market ... [Additionally,] the public have a right of way in every stream which is capable, in its natural state and its ordinary volume of water, of transporting, in a condition fit for market, the products of the forests or mines, or of the tillage of the soil upon its banks. It is not essential to the right that the property to be transported should be carried in vessels, or in some other mode, whereby it can be guided by the agency of man, provided it can ordinarily be carried safely without such guidance .... If it is so far navigable or floatable in its natural state and its ordinary capacity, as to be of public use in the transportation of property, the public claim to such use ought to be liberally supported"
A lower court also affirmed that a river "does not lose this characteristic [of navigability] even if it has fallen into disuse for a hundred years."

Based on these precedents, the defendants cited that since the South Branch of the Moose had been used heavily in the 19th Century to float logs to market, it should be declared a navigable waterway. However, the ALC claimed that dams and other works were erected on the river to enhance the water flow, and that logs were only able to be floated for a very short period of the year due to minimal flow. However, again according to the landmark Morgan v. King, the river doesn't even need to be considered navigable for the entire length of the year for it to retain its status as a navigable waterway:
"[It is not essential for a river to] be capable of being ... navigated against its current. ... Nor is it essential to the easement that the capacity of the stream ... should be continuous ... at all seasons of the year. ... If it is ordinarily subject to periodical fluctuations in the volume and height of its water, attributable to natural causes, and recurring as regularly as the seasons, and if its periods of high water or navigable capacity ordinarily continue a sufficient length of time to make it useful as a highway, it is subject to the public easement."
Remsen Falls on the Moose River
Looking upstream from Remsen Falls.
April 19, 1998.
In denying the defendants' motion of summary judgement, this Court did not rule on the specific navigability of the South Branch. The issue was left to be determined later in trial. As I mentioned previously, however, this case was a landmark one not because of any decision regarding the navigability of any single waterway, but because it upheld the rights of paddlers to be on rivers in general.

For example, what about the fact that several times throughout their journey, the paddlers had to leave their boats and carry around dangerous sections of the river, thus setting foot on private property? The defendants held that such portages were an integral part of the navigability of the river and should be allowed. In their December 17, 1998 decision, the State Court of Appeals agreed:
"[The] defendants are correct, however, that the existence of occasional natural obstructions do not destroy the navigability of a river. ... Following naturally from this proposition is that in order to circumvent these occasional obstacles, the right to navigate carries with it the incidental privilege to make use, when absolutely necessary, of the bed and banks, including the right to portage on riparian lands ... On the other hand, any use of private river beds or banks that is not strictly incidental to the right to navigate gives rise to an action for trespass."
And finally, in a decision that reflects the changing attitudes of the modern era, the court upheld the rights of paddlers statewide. A river's test for navigability, under the precendent established here, now includes the ability of a waterway to be used for recreational purposes such as canoeing and kayaking, and not simply its ability to be used in commerce:
"The declining need to use rivers for commercial logging coincides with changing attitudes toward the preservation of our natural resources. Rivers, long-recognized as unique natural resources, are no longer primarily subjects of commercial exploitation and gain but instead are valued in their own right as a means of travel. ... In line with these modern circumstances and our precedents, we are satisfied that recreational use should be part of the navigability analysis. ... [The ALC's] fear that consideration of recreational use unduly broadens the common law standard and threatens private property rights is unfounded. We do not broaden the standard for navigability in fact, but merely recognize that recreational use fits within it."
The dissenting opinion in the case, which called for the summary judgement on the navigability of the Moose to be granted, agreed that recreational use should be taken into account when considering the navigability of a waterway.

This decision has major effects for the paddling population of New York. It in effect opens up many rivers currently closed to recreational boaters. However, paddlers should be well aware that this decisions does not give them the right to tresspass on private property. Any use of private land aside from that strictly necessary for the navigation of the river in question is still strictly illegal. Further, this decision does not give the public permission to cross private land to gain access to a waterway. And still further, as laid down by a 1997 decision by the New York Court of Appeals, fishing in a river while over private lands is illegal. More details on this case, Douglaston Manor, Inc. v. Bahrakis, which debated public fishing rights on the Salmon River, are available by clicking the link below.

Read about the February, 1997 decision upholding landowners' rights on the Salmon River.

View the full text of the decision of the Court of Appeals. (external link to a page at Cornell University)

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