One of the topics I’ve been reading a lot about recently is access to creeks and other waterways for fishermen. In Western New York, we have many public access points for different streams and rivers, and a few of us are lucky enough to fall in with farmers/landowners and get additional access points.
The issue that concerns me is the way the law looks at navigability.
It’s a complicated issue. The way NYS reads it now (and it may or may not be changing) is that the creek bed of any water way is private property (if owned by a private entity, or posted by the State, etc). The water that flows through it belongs to the state. There doesn’t seem to be a mention of who owns the fish, plants, animals, and insects IN that water. (Comment below if you know otherwise).
In order for a stream section to be UNFISHABLE (and note there’s a big difference between unfishable and un-navigable), the stream section must be posted on both sides. In other words, a farmer who’s land butts up to a creek, and who has posted it against fishing/hunting, can properly restrict you from fishing and walking on exactly the half of the stream that he or she owns. If the other side is posted as well, be it by the same farmer or a different land owner, then the whole stream is unfishable, and unwadable (but not un-navigable).
Unwadable? You bet. He owns the creek bed, and you can’t touch it. Period.
Enter the kayaker, canoeist, or float tuber.
Since the state owns the water, you can pass through that section. The DEC so states:
Q. May a person travel in a boat or canoe on a waterway which is posted?
A. Yes, but travel may not include fishing. A person in a vessel has a right of passage on a navigable waterway, even if the bed of the waterway is privately-owned and is posted. A waterway is navigable if it is capable, in its natural state and ordinary volume of water, of transporting, in a condition fit for market, of floating logs or manufactured or agricultural goods to market. A navigable waterway need not be navigable in both directions, nor need it be navigable 12 months of the year. Furthermore, a waterway’s navigability is not destroyed by rapids or other temporary obstacles so long as the rest of the waterway is otherwise navigable. Where such obstacles exist, the right to public navigation authorizes a boater to get out of the vessel and walk alongside the boat to get around such obstacles, or to portage around such obstacles, even over private property above the mean high water mark, so long as the portage is by the most direct and least intrusive safe route possible. The right to navigation does not otherwise authorize the public to go on private land above the mean high water mark, even for access to or egress from a navigable waterway. A 1997 ruling of the New York State Court of Appeals indicates that the public right to navigation does not include the right to walk on the bed of a waterway to fish, or to anchor for the purpose of fishing where the bed of the waterway is privately-owned; or to fish while navigating through privately-owned waters.
Note the use of the term MAY, however.
While the 1997 ruling seems to specifically state that fishing from a boat, even unanchored, isn’t protected, one wonders that based on the language they chose to use whther or not the DEC agrees. Further, I guess we have to wonder whether or not the fact that the DEC might disagree matters.
Want it to get more complicated? Try on this discussion.
Here, we see a debate that stems back to documents that are hundreds of years old, still potentially driving whether or not a fisherman can wade and cast in a specific section of the Delaware River. Granted, the Delaware has a storied and historic past.
This is going to be an ongoing series of arguments and blog posts here, perhaps directly pertaining to some of our favorite creeks and streams in the Rochester/Buffalo area. I intend to do more research on this topic.
What do you think? Do we just need more state fishing easements? How do we co-operate with land owners and still enjoy our sport? Tough questions indeed.
Tags:
fishing,
kayaking,
property access,
trespass 
