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Rights of Passage

The curious and convoluted story of how our great open canoe routes became posted preserves

Geography predestines the Adirondacks for small-boat travel. Twenty-eight hundred lakes and ponds, thousands of miles of rivers and streams radiating out from the axes of elevation, cross-grained in­terconnections — all constitute a boater’s paradise, as W.H.H. Murray called the region in 1869. “The novel and romantic peculiarity of this wilderness…is its marvelous water com­munication….One can travel in a canoe or light boat for hundreds of miles in all directions through the forest.” Another tripper remarked, “The whole length and breadth of this strange country can be traversed by boats so light as to be easily carried on the shoulders of a man,” (Samuel Prime, 1874). “Boats are the cabs of the wilderness,…the very poetry of travel,” (Thomas Gold Appleton, 1878). “It should be remembered that in this ‘Venice of America,’ nearly all the traveling is done by means of boats,” (E.R. Wallace in various editions of his guidebook). All waters were open from the arrival of the first tourists, about 1840, until 1890. In that half-century the Adirondacks was the country’s favorite region for small-boat travel.

Readers of E.R. Wallace’s Descriptive Guide to the Adirondacks (1872-1899), with its detailed descriptions of many water routes now closed, must wonder how so much of that heritage of small-boat tripping has been lost.

Prescription, in the common law that the United States inherited from England, is the establishment of a claim to something by virtue of long use and enjoyment. In most of New York State and throughout the New England states, the fact of early use of waterways for commerce and recreation has kept them open to navigation. In the Adirondacks, however, some rivers and streams, lake-chains and ponds, are now closed. It is no longer possible to speak of Murray’s range of hundreds of miles in all directions. If a tripper wished to cross the park from Stillwater on the Beaver River to Cadyville on the Saranac, or if he wished to go from Old Forge in the south to St. Regis Falls at the northern extremity, he would encounter non-geographic blockages. It is ironic that Adirondack rivers, once they leave Park boun­daries, are fully open to navigation but are wholly or partially closed inside the Park, which was dedicated in 1892 to “the free use of all the people for their health and pleasure.”

The first hint of possible sequestra­tion appeared in an editorial in the New York Times in 1864: “We venture a suggestion to those of our citizens who desire to advance civilization by combining taste with luxury….Let them form combinations and, seizing upon the choicest of the Adirondack Mountains, before they are despoiled of their forests, make of them grand parks,…where, at little cost, they can enjoy equal amplitude and privacy of sporting.” Wealthy individuals and “combinations” were not slow to seize on the idea. “Amplitude of sporting” came to mean estates of thousands of acres (in one case, 200,000). Privacy came to mean the closing of waterways within these demesnes. No authority invoked prescription in the interests of the boating public, though the state legislature did declare several rivers public highways for logging. The New York State Forest Commission, forerunner of the Department of En­vironmental Conservation (DEC), ac­quiesced in the posting of stream cor­ridors and chain ponds. Its report of 1893 acknowledges the trend toward sequestration. “In going from Little Tupper Lake to the Beaver River coun­try, the direct route leads up the outlet of Charley Pond. On entering this stream, some large placards, con­spicuously posted, arrest attention.. .’All persons are strictly forbidden to trespass upon these grounds.’…It should be stated in this connection that these trespass signs are fast becom­ing a prominent feature of the Adiron­dacks.” Little Tupper Lake, Charley Pond and its outlet, and a section of the Beaver River remain closed to the public today.

In a parallel development, wood-product corporations acquired large tracts on streams capable of floating logs. As local taxes rose, they sought to maintain profit margins by leasing hunting and fishing rights to game clubs. The latter proceeded to post lands and waters against public access.

Today  it is precisely in the best region for river cruising, the northwest sector of the Park, that restricted waters are most common. To be sure, there are problems elsewhere. All but four of the 36 miles of the South Branch of the Moose River are inac­cessible for public boating. Other restricted waters in the south are Up­per West Canada Creek and several miles of whitewater on the Cedar River. In the northeast (the Lake Champlain basin), the headwater lakes of the East Branch of the Ausable are closed to public boating, and recent posting at the four corners of the bridge over the Saranac on the Silver Lake Road is evidently designed to prevent access to a prized whitewater run as the river descends 200 feet off the plateau. Fencing at the four corners of a bridge on the West Branch of the Ausable has the same effect. And in general, throughout the Park, there is a lack of convenient access points and rest stops at intervals of 8 to 15 miles on river routes that pass through private lands. Warren County alone has provided some of these.

The northwest comprises the largest of the five major drainage basins of the Park, the St. Lawrence River basin. It consists of streams heading in lakes of the central and northern highlands and emptying into the parent river in St. Lawrence and Franklin counties or Quebec Province. The westernmost is the West Branch of the Oswegatchie, the easternmost the Chateaugay. The long gentle slope of the plateau in the northwest makes for excellent cruising conditions, with lengthy reaches of flat water, mild rapids, and few sharp drops except on the perimeters of the Park. In the southern Adirondacks and the northeast the rivers are steeper and the runoff fast, so that practical canoeing in most cases is limited to the spring season and intervals of heavy rainfall. In the northwest, headwater lakes, extensive wetlands, and spongy conifer-forested soils have a regulating effect on runoff and help to maintain adequate depths for three-season boating. These rivers are also attractive to the whitewater paddler. As they fall off the plateau, sometimes to elevations as low as 710 feet at the Blue Line, they challenge the skills of advanced paddlers.

I have identified 21 navigable rivers and streams in the northwest. All are in the St. Lawrence basin except the Beaver, which is in­cluded because of its possibilities of linkage in a traverse of the Park. (Not included are several brooks and creeks canoeable for short distances of up to four miles.) The largest number, 17, can be sampled only piecemeal between posted carries. Blockages negate the opportunities of geography: follow­ing a river from its headwaters to the Blue Line or engaging in a canoe-camping trip of a week or more on interconnected waters, as was popular in the last century. The only such extend­ed routes today are on the Raquette to the hamlet of Piercefield and the Ra­quette in combination with the Saranac. In consequence, these routes are much overused.

Three of the 21 navigable streams are closed in entirety. The 16 miles of Long Pond Outlet are inaccessible over private jeep roads. Of the 40 miles of the West Branch of the St. Regis River inside the Park, only the upper one mile is open to the hardy paddler will­ing to carry his craft over long portages to reach so small a segment. Below that mile the river enters a private park and continues inland posted by game clubs.

The South Branch of the Grass too has a length of 40 miles inside the Park; in addition it has everything most at­tractive to the wilderness paddler — remoteness, variety of terrain, absence of impoundments, flatwater and rapids, and six beautiful waterfalls. No Forest Preserve land exists on this river. A small rest area at the bridge on State Route 3 east of Cranberry Lake is of little use because rapids immediately below it approach class V in difficul­ty; for most paddlers a carry on posted land is necessary. Even the advanced kayaker is thwarted by lack of an egress site downstream. Three canoeists were recently ticketed and fined for taking out 16 miles downstream at the first bridge crossing on a public road. For boaters and lovers of riverine scenery generally, the South Branch is the best kept secret of the Park.

What are the chances of open­ing restricted rivers and pond chains to the public? The quickest and most effective solu­tion would be new legislation to bring clarity into the confusing, inconsistent mixture of common law, statutory law, and case decisions concerning inland navigation. In my experience, DEC of­ficials, legal consultants, judges, lan­downers and members of the public in­terpret navigational rights in often con­tradictory ways. Is it permissible to use the right-of-way on a public road to carry a boat around the corner of a bridge and slip it into water? Canoeists across the country assume legal access and egress at bridges and parks. In most areas bridges are more numerous than parks and more conveniently located. If they were ruled out, river running would hardly be a viable sport. Guidebooks would have to be rewrit­ten or become obsolete. Even in the Adirondacks, and especially in the northwest, such a ruling would be a serious handicap. Yet a DEC official, responding to a landowner’s com­plaint, ruled that transporting a canoe around a bridge on the right-of-way is illegal; the right-of-way is for highway purposes only.

Once legally upon a stream, can the boater proceed in either direction as long as he remains afloat even if both shores and the river bed are in private ownership? The ruling of a county judge in St. Lawrence County (1980) affirmed this right. “A person boating on the waters…is not a trespasser.” Though this decision is binding only in the county, it was adopted as policy throughout Region 6. But it is not recognized in Region 5, as a Ray Brook official of the DEC informed me.

Can the boater walk on the privately owned bed of a stream where necessary for passage? Counsel for the Adirondack Park Agency (APA) says that he can pursuant to the right of navigation. But the judge in the case cited above (the People versus Waite) ruled that anchor­ing a boat to the bottom or tying it to a tree branch is a trespass.

When is a stream navigable? Is the test its capability of being used in com­merce or recreation or both?

These are some of the imponderables. The public’s right to use an inland body of water for recreation is largely undefined in New York statutory law, and this gives rise to conflicting inter­pretations. Landowners are likely to be guided by self-interest. Some assume that they own the water that flows through their land, an assumption encouraged by the DEC folder on the posting law. It states, without distinguishing between landlocked and running waters, that a landowner can post “both lands and waters.” Riparian owners do not “own” running water “In fact, there is no title to running water in this state,” Edward L. Ryan, legal consultant to New York State, is quoted in a 1964 report of the Commission on Water Resources. “In navigable waters they (riparian owners) are subject to the dominant power of the United States and the state to control, develop and regulate waters in the interest of navigation and commerce.” Idaho has adopted a navigation code free from ambiguity and responsive to the public interest. Relevant portions are as follows: “a) Navigable Streams Defined. Any stream  which, in its natural state, during normal high water…is capable of being navigated by oar or motor propelled small craft for pleasure or commercial purposes is navigable; b) Recreational Use Authorized. Navigable rivers…shall be open to public use as a public highway for travel and passage, up or downstream, for business or pleasure, and to exercise the incidents of naviga­tion — boating, swimming, fishing, hunting, and all recreational purposes; and c) Access Limited to Navigable Streams. Nothing herein contained shall authorize the entering on or crossing over private land at any point other than within the high water lines of navigable streams except that where ir­rigation dams or other obstructions in­terfere with the navigability of a stream, members of the public may remove themselves and their boats, floats, canoes, or other floating crafts from the stream and walk or portage such crafts  around said obstruction at the nearest point where it is safe to do so.”

The last clause, providing for use of the foreshore at obstructions, would be the open sesame for Adirondack rivers. Right of passage is now thwarted by posted carries on private shores. But the enactment of legislation similar to Idaho’s is probably a perfectionist’s dream. Landowners would consider it a “taking” and oppose it in every way open to them.

Another solution, though slower and more uncertain, is offered by the En­vironmental Quality Bond Act of 1986. It provides $250,000,000 for the acquisition of public lands, including the Forest Preserve. There is local op­position to this measure by foresters and hunting club members. In the lat­ter part of 1987 the state entered into negotiations with the Yorkshire Timber Company, which owns 72,000 acres in southern St. Lawrence Coun­ty. These holdings give access to about 50 miles of the South, Middle, and North branches of the Grass River. Alarmed at the possible loss of ex­clusive hunting and fishing rights, 21 game clubs that lease land from Yorkshire launched a campaign, con­tinuing at this writing (January 1988), to prevent the state from buying the land or securing easements. The coun­ty legislature also went on record as op­posing additional purchase of Forest Preserve in the county.

Local opposition overlooks the fact that the Adirondacks are of paramount interest to the people of the whole state and of the northeast at large. This larger constituency has an interest in those 20 navigable streams of the northwest sector that are wholly or partially closed to public boating and to access on foot. Of the six named waterfalls of the South Branch of the Grass, for instance, only one, not the most spectacular, can be partially view­ed from a town road.

Boating rights can be secured without fee purchase. Easements would allow commercial forestry to continue without harm to the local economy. The state has the authority to buy con­servation and recreation easements. The latter could be limited simply to boating rights, in a move comparable to the fishing rights the state has bought from landowners in the past. Game clubs could then continue to en­joy exclusive hunting. Some might prefer a trade-off of fishing rights for state stocking of rivers.

It is time to reclaim the heritage of unrestricted small-boat tripping that charmed Adirondack visitors a century ago. “We should do for our waterways what we do for most of our other routes,” says John M. Kauffmann in Flow East. “If we could treat our rivers like our roads, we could have beautiful permanent river parks …They are the best and in some places the only cor­ridors along which we may pass from the contrived to the natural world.”

Rivers are the museum galleries of the wilderness. Land forms and the community of plant, animal, and bird life are on display in river corridors as nowhere else in the forest, in vivid closeness and with the slow intimacy of a passing canoe.

Archives

Rights of Passage The curious and convoluted story of how our great open canoe routes became posted preserves
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