Kayak Fishing Rights on Posted Waterways

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Last summer, I had posted an article about fishing posted property from a kayak… Moreover, what you could and couldn’t do based on current interpretations of New York State law. (Your state may vary, so be sure to look into it.)

As it happens, it looks like the DEC website is still referencing the 1997 State ruling on the matter.

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.

So, as a refresher as you head out in your yak this summer:

1.) You MAY pass through property that is posted, if it has been deemed a navigable waterway*.
2.) You MAY fish the unposted side of a creek or river.
3.) You MAY exit your kayak and portage through posted property on a navigable waterway*.

However, you CAN’T fish in waters that are properly posted on both sides of the stream.

Bear in mind, some properties on many lakes that we fish are posted. I’ve yet to determine how exactly we are supposed to respect postings on lake front property. As in, how far out does the posting extend, etc. If anyone has info on that, please share below.

*NYS Definition of Navigable Waterway (per this Protect the Adirondacks brochure)

In order to be
navigable-in-fact, a waterway must provide practical utility
to the public as a means for transportation and travel.
However, over the years, court decisions have further detailed
and described aspects of the right. Thus, the courts have
recognized recently that utility for log drives has become
a largely anachronistic form of commercial use test for
determining whether a waterway is navigable-in-fact,
whereas recreational use has become an important
contemporary factor in the determination.Water-based
tourism in small boats, kayaks and canoes is a major
commercial activity now and a major contributor to the
State and local economies of New York State.

That excellent brochure also outlines in Point 15:

Is fishing allowed on waterways that are
navigable-in-fact, and if so, under what

The Court of Appeals has held that, although the public right
of navigation is protected by law, private owners of stream
banks and beds may have “exclusive” fishing rights in nontidal,
navigable-in-fact waterways.Although the answer to
this question may depend to some extent upon the specific
language of the landowner’s deed and the specific facts of
the situation, it appears that as a general rule fishing is not
included within the public right of navigation and, therefore,
fishing without the permission of the landowner is not
allowed on navigable waterways that cross private property.
Where the riparian land is publicly owned, fishing is allowed,
of course.

So again, this post is intended as a reminder of good conduct while kayak fishing, so you can make intelligent decisions about how to approach certain streams and rivers for the purpose of kayak fishing. I hope also that it fosters some debate, as the brochure’s comment about ” specific language of the landowner’s deed and the specific facts of the situation” tends to put some gray area in the fishing on private lands debate.

What do YOU think?