Fishing and Posted Property in New York State
Proposed Solutions to the Navigable-In-Fact Controversy
I think there’s a few things we can do to improve upon the current system. Of course, it’s very hard to discuss this issue in the sense of any real “absolutes”. That’s why we have attorneys, and courts. I’ll propose a few things here, but bear in mind they are simply the thoughts of a non-legal mind, and a person who has empathy for both sides in this debate.
- Improve Access to Current Public Waterways – This is first and foremost, and an obvious starting point. With the access we already have to NYS water, there is no immediate need to open every trickle of water to public paddling. Yes, in the case of white water kayakers and rafters, some waters will always be better than others. There are unique geographies that exist, some on private property, that are desirable to adventure seekers. I can understand the desire to want to use them. I think however that we can do more with less if approached properly.
- Create a scientific standard for navigable-in-fact – Even under the guise of recreation, I think it’s important that we come up with a unit of measure that denotes what is passable and what isn’t. For example, I would find it ludicrous for there to be an expectation of public access to a stream that has next to no water in it in the height of summer. I’ll defer to a fluvial geomorphologist to define what that standard is, but I would say there certainly could be an “eye test”.
- Create absolute protections for private property owners – I think we need to put assurances in place that private property owners are not responsible for injuries on their property even if a waterway is deemed navigable in fact. We can’t prevent a lawsuit from occurring, as the actual placement of fault has to be determined case by case, but we can certainly provide for a punitive countermeasure against baseless lawsuits such as the one I described earlier. Also, there can’t be an implication that the property owner is somehow responsible for the maintenance of the water on their property. Downed trees and other items are acts of nature, and the land owner should bear absolutely no obligation to remove them.
- Define the Length of Navigable-In-Fact Water on Private Property – Another consideration is the length of the water in question. Again, coming up with an exact number isn’t going to be easy, or in some ways popular, but wouldn’t it make sense to limit the length of the waterway we are discussing? While a half mile paddle from one public water to another is one thing, and likely should be allowed, do we believe we should be allowed to paddle 10 miles through private property to reach a public waterway?
In Conclusion – Navigable in Fact Waterways
In the end, common sense must prevail. We find however that this isn’t always the case. Anyone willing to spend enough money can have their position enacted by law. I think it’s important that we don’t allow one right to supersede another.
There needs to be a good dialog on this from people in the middle – those without private property in question and those that don’t believe there is an absolute right to paddle, boat, fish and swim wherever one may choose.
If we allow only the vested people to carry the conversation, it becomes a battle that likely won’t find middle ground. Both sides of the argument have merit. Ultimately, in order to create a workable, safe, and fair solution, it will have to be the “rest of us” that determine it.
A vast majority of fishermen, kayakers, and other water recreationalists want to preserve private property rights. It’s in our best interest to have private property owners feel comfortable with opening their water to visitors. And, it’s also important that we have the ability to access all truly public water which sometimes means we have to traverse private property to get there. These are all key considerations, and again, as with anything else, some of the most vested individuals in the argument are not going to be swayed. That’s why the middle needs to be heard.
What do you think? Please leave a comment below, or feel free to submit a letter to the editor on the issue. We will publish all that aren’t profanity laced rants. This editor believes that both sides need to be heard, and preferably in one place.