Say you’re out for a Saturday canoe outing, paddling down a narrow creek connecting two small lakes you know are open to public recreation, and you encounter a “No Trespassing” sign. Both banks, it turns out, are private land.
Are you trespassing?
If you live in the state of New York, a judge ruled Tuesday, the answer is no.
In an important victory for outdoors lovers, the New York State Supreme Court ruled against private landowners in the Adirondacks who brought charges against a canoeist paddling a stream on their land, reported the Washington Post. The paddler, Phil Brown, followed a stream from Lake Lila to Little Tupper Lake, in William C. Whitney State Park, but had to cross a private tract in order to have an uninterrupted journey. He wrote an article about the trip for the Adirondack Explorer newspaper, raising the ire of the landholders, Brandreth Park Association and Friends of Thayer Lake.
The owners had posted signs and stretched cables across the waterway to discourage passage through their land, but this week’s ruling ordered them to remove the obstacles.
Upholding a 1998 ruling, which was under review, the judge found that all “navigable” waterways in New York are open to not only commercial use, but also to recreational use. The plaintiffs had unsuccessfully argued that the law only protects commercial use.
Portage around rapids was found to be allowed in this case, although fishing and land-based entry to the waterway were not.
But what about other states? Can landowners in Pennsylvania or Colorado stop you from kayaking their creeks?
According the U.S. Supreme Court the test of public use nationwide is “navigability,” dating back to an 1870 decision about state ownership of waterways. However, it is up to state courts to decide which waterways are and are not navigable.
In the case of Colorado, disputes between boaters and landowners—often ranchers—got so heated, they included incidents of “hanging barbed wire and fishhooks below a bridge, felling trees across river channels, and constructing impassable fences that are maintained even during high water and in the absence of livestock,” according to a task force report.
However the various rules of navigability, portage around obstacles, and use of rivers in low water remain unresolved in that state.
Pennsylvania law, on the other hand, explicitly asserts broad public rights to “navigable” rivers, including fishing and wading, and even the right to paddle through “non-navigable” waters. (Lakes and ponds are excluded from this protection.)
The verdict: One state’s unnavigable rapids might be another’s public waterway. Unless a state explicitly posts its rules, the only way to know if you're in the clear, it seems, is to let the courts decide.