from PRFAs Eleventh Annual National Conference on Private Property Rights

The Navigable Waterways Controversy
John S. Marwell

Good morning. Carol, thank you for that very gracious introduction, and I really must speak to you, should you ever invite me to speak again. I have no interest whatsoever in following Mr. Pilon as a speaker. After lunch would be fine or last in the day would be fine.

I am actually one of those coal miners to which Mr. Pilon referred. I spend my days representing property owners in litigation against advocacy groups and against governments, and I spend my nights in front of planning and zoning and wetlands commissions standing up for property rights for private property owners.

How many of you are New York State residents who own property? Okay, how many of you have been before planning and zoning boards? Any members of planning and zoning boards here? They would be afraid to raise their hands. How many of you have been tortured by those boards? It is a very difficult situation that I don’t have to go through with you. I was wondering if Mr. Pilon might be available to come and train some of these planning and zoning board members. I remember one of my more particularly humorous moments late at night about 11:30 or twelve o’clock. I had been arguing a case in front of the zoning board in northern Westchester and what was happening was so outrageous that I had the tenacity to refer to the rights preserved by the United States Constitution. The chairman of that board looked at me and said, “Mr. Marwell, what possible relevance does the United States Constitution have in events of this town?” At least I knew where I stood.

Carol asked me to talk about navigable waterways, and I think it is a very interesting topic for a number of reasons. Of those of you who are property owners in New York, by a show of hands, how many of you have water that flows through your properties or is on your property? Okay, and as Carol mentioned, we are not going to talk about wetlands regulation. That is a whole other topic for another month if anybody has the stomach for it.

What we want to talk about, though, is an impressive concerted effort on the part of what I would characterize as a small group of recreationists to try to create new rights in favor of the public at the expense of property owners. And for those of you who may be sportsmen and women and may read sports magazines, you may read articles related to this. Very often these kinds of disputes over rights and waterways are written about in sportsmen’s magazines—fishing and outdoor magazines, conservation magazines. And these types of legal battles are going on all over the country. Pennsylvania, Ohio, out west, Florida—so it is not uncommon. And I think the situation where we have been involved and still are involved is fairly typical although it may be a better orchestrated effort than many of these are.

In fact, it was in the context of this particular dispute that we first met Carol because as a lone voice in Hamilton County she started writing letters to the editor of the local newspaper, the Hamilton County News, in the late 1980’s. Carol W. LaGrasse was saying, what on earth is going on here. These people have property rights. Doesn’t anybody understand that?

We became aware in the late 1980’s that there was a group of people who had been lobbying hard at DEC, New York State Department of Environmental Conservation, which has regulatory authority over property and wildlife, property rights in New York State. The group was attempting to change the age-old standard of “navigability in fact” in New York State. And I want to give you two minutes of background, nothing near what Mr. Pilon gave you, but I think a historical context, very briefly, is important to bring us to where we were and where we are today and where we continue to be.

We are talking not about tidal, not about salt water waterways. Those types of the land under salt water or tidal water bodies are deemed to be owned by the state and have public right of passage, public rights of recreation. Everybody has rights there. We are talking about a body of law that is governed uniquely by the laws of each state, and there is a completely different pattern that applies to fresh water bodies throughout the country, and each state has its own unique water issues. You will find very different sets of rules in many of the states west of the Mississippi and different attitudes and different laws from states east of the Mississippi.

The key legal phrase is “navigable in fact.” Water bodies that are deemed to be non-navigable in fact remain private property and there is no public right of passage. Water bodies that are deemed to be navigable in fact are held to be subject to a public right of passage over that water body. This is really the key legal issue and has given rise to an incredible amount of legislation and litigation for several hundred years in New York State and continues to today. So you can see it is very important to determine whether a water body is navigable in fact or not because, if it is not navigable in fact, no one has the right to go down that water body or to play in that water body, to recreate, or to pass through it. If it is navigable in fact, there is a public right of passage, whatever that means. And there has been a lot of litigation over the years on both the issue of whether a particular water body is navigable in fact and hence whether there is a public right of passage. If indeed there is a public right of passage, the question is just how broad is that public right of passage and what is included in it.

Well, in New York State’s law there was a lot of activity back in the 1800’s when there weren’t any roads. Water bodies were the main means of transport, the main highways for transport to get goods to market, to get the crops to market, to get logs to market. You had to float them because there was no really other way to get them to market. It became very important to determine which water bodies were available to float those logs to market and those crops to market. As Mr. Pilon mentioned, this is one of those issues which evolved largely through judicial decisions, individual decision making, common law decision making by judges and by courts to evaluate the various evidence that was put in front of that court to determine whether a particular water body had sufficient characteristics so as to warrant a finding that it was navigable in fact and hence there was a public right of passage.

All kinds of decisions came down and it was a bit of a hodgepodge until the New York Court of Appeals, New York’s highest court, in 1866 rendered a decision called Morgan v. King. And in that case the court basically said that a water body would be found to be navigable in fact if in its ordinary volume of water and in its natural condition it was capable of being utilized for commercial utility purposes for the passage for travel, trade, or transport.

That standard was upheld and has been honored and recognized until the late 1980’s when a group of people said, you know what, we don’t really need the rivers and the streams as means of transport anymore. We have highways, we have railroads, we have airplanes, we don’t need the public right of passage. It has pretty much changed, and it is time to “clarify,” what I would say is radically change, this public right of passage and this definition of what constitutes navigability in fact. And the agenda was to do away with this old commercial utility test because it is no longer relevant, and what we want to do is insert a recreational use test. However, under the Morgan v. King, New York’s highest court had adopted this time-honored standard in 1866 that said if a water body has meaning for trade or transport or travel, then there is going to be a public right of passage.

These advocates decided it was time to try to change the law so that a water body would be considered to be navigable in fact if it were capable of being floated down by a canoe or a kayak. Furthermore, that right of passage would not be obstructed if there were natural obstructions in that water body but people exercising this “public right of passage” would be able to enter upon privately owned river beds and banks in order to walk around any obstructions and to carry on such activities as would be incidental to the public right of passage.

To me that is a pretty radical change. When I think of navigable, I look out the window and I say, well, the Hudson River is navigable or these huge lakes are navigable. These are meaningful bodies of water for trade or transport for the movement of goods to market, but when I start thinking in terms of Rocky Mountain streams where people have owned property for years and years and years with a reasonable expectation that their properties are private and there is not a public highway through them, to me that is a major change.

Now let’s talk about how this effort was orchestrated. We became aware of it in the late 1980’s. There was a group within DEC, New York State Department of Environmental Conservation, that was trying to convince DEC to enact regulations that, in effect, would change this legal standard and would also create a list of water bodies throughout New York State that were deemed to be navigable in fact under this legal standard—deemed navigable in fact not by a court of law but by DEC, by the staff at DEC and the commissioners at DEC.

I will give you three guesses as to which parties were consulted on these draft regulations. It wasn’t the property rights people. It wasn’t property owners. It was Sierra Club, and it was White Water Challengers, and it was all of these advocacy groups and recreational groups that sought additional recreational opportunities on people’s private property at no cost.

Well, it turns out that the senior staffer in charge of this effort happened to be a member of the Sierra Club and happened to be a member of a number of these groups as well and no efforts had been made to reach out to get the other side of the story. So we managed to get that bottled up.

Well, not to be deterred, their next effort was, well, we are going to legislate this. We are going to get laws signed, passed through the New York State legislature, and signed by the governor, a navigable rivers bill, which is going to change the legal standard and which is going to create all of these ancillary rights that we think should be available to kayakers and canoeists through people’s private property. Well, that bill made it to the legislature on several occasions, made it through the Assembly, but did not make it through the Senate. In those days there was a senator, Senator Stafford from the Adirondack region, who was a proponent of property rights. He is no longer with us, but this bill managed not to get enacted and not to get passed through the Senate.

This group was not to be deterred. They made a couple of other efforts, then, in the background. They engaged a law professor from Pace University School of Law, a place where I have taught, and had him write a Law Review article, the basic thesis of which was, New York really has a recreational use test. It hasn’t been said in so many words but it really has a recreational use test, and that recreational use test really is pretty broad and, you kayakers and canoeists, you can really have a good time and you are within your rights. Well, that wasn’t helpful.

Then another step—traditionally the trespass laws had been enforced by the DEC rangers. When a property owner felt that someone was trespassing on his property, at least in upstate, he called the local DEC ranger, the ranger would come out and investigate and if he felt that trespass had occurred, he would issue a trespass summons. Well, lo and behold, the general counsel of DEC issues what he called an “enforcement guidance” that basically directed the DEC rangers throughout the state not to arrest members of the public who are exercising their right of public passage over waterways.

Now, this guidance was based in part upon this Law Review article and what I would consider to be not an entirely objective analysis of what the law of navigability is and encompasses, and it basically put the rangers in the position of having to make determinations as to what kind of water body, which water bodies were navigable in fact and which were not, because that would determine whether someone was trespassing. So now the rangers refused to issue trespass summonses.

So now we have a situation where the criminal law can’t be enforced. We have a “scholarly” article saying that there is a broadly defined public right of passage over the water bodies that are canoeable or kayakable, but we have managed to bottle up the legislation that hasn’t been enacted and the regulations are foundering. These draft regulations have not been enacted, draft regulations which I might add never found their way to a public hearing, but they were referred to as having some legal import and meaning. So what is left?

Well, they decide, “we are going to go out and provoke a test case.” So the Sierra Club, supported by its Legal Defense Fund and supported by the attorney general’s office in New York State, says we are going to send some canoeist down a series of private water bodies in upstate New York, and we are going to provoke a test case. It is a no-lose situation. If we go through and we don’t get sued, we are going to declare that water body as open to the public and “come on down.” And if we do get sued, we are going to get our test case, and we have the Sierra Club Legal Defense Fund that will indemnify and back up the canoeist. They issued a bunch of press releases back in 1991, stating that this is what they had in mind and this is what they planned to do. They even sent letters and notices at the last minute to the property owners, saying, here we come. Like it or not we are coming.

Well, the Adirondack League Club, which owns 53,000 acres of almost entirely wilderness, pristine property, said, wait a minute. We don’t have any development along our waters, very little, certainly not along this twelve-mile stretch of river. It is pristine. The wetlands are in perfect condition. There is virtually no human intrusion into it, and, furthermore, Cornell University has been conducting fish research and acid deposition research on our preserve for some fifty years. What are you, who do you think you are, and what are you doing?

Sierra Club chose not to answer that letter, and they sent a group down the river. When they got to the boundary of the League Club’s property they were confronted with a couple of signs over the river warning people to stop, that they were entering a private preserve, that it was extremely hazardous, and, furthermore, that the League Club has recently enacted decontamination policies out of fear of environmental contamination resulting from any boats or other vessels that entered onto the water bodies on the club property and these had to be decontaminated before they could go on the property in order to avoid the spread of the zebra mussel and other contaminants. These folk were not to be deterred. They came down the river. They capsized several times. They walked along the banks. They sat on the banks. They were confronted by management of the League Club and asked to leave. They said, we are not leaving. They said, we are not turning around. What we are doing is continuing down the river because we have the right to do it. Well, they did continue their journey.

There was no arrest for criminal trespass, but a lawsuit was brought shortly thereafter against the canoeists and the Sierra Club seeking $5 million in punitive damages and a permanent injunction saying, you were trespassing, this is private property, it is not navigable, you have no right to be here. You have no permission. You have endangered the environmental sensitivity of the wetlands. You violated our decontamination policy, and you have disturbed the privacy of the members of this club. And away we went.

Immediately thereafter, the attorney general, of the State of New York moved to intervene in the case, on the side not of the property owners, I might add. And the Adirondack Mountain Club moved to intervene as well. We litigated this case from 1991 through the trial court, motion court, through the intermediate appellate court, to New York’s highest court. In 1998 we got to the Court of Appeals on two issues.

Issue number one is, what is the legal standard of navigability in New York State, and, number two, once having determined that legal standard, does this stretch of the river satisfy that legal standard?

Now, I thought it might be interesting to you to see some of the pictures of this river. Again, in my mind’s eye when I think navigable, I am thinking Hudson River. I brought some of the photos that we had taken during the time period in question, so that you could see a fairly dramatic contrast between the commercial utility test and what the advocacy groups were seeking to have it cleared to be navigable in fact under New York state law. Let me pull a couple of these pictures up just to give you an idea of what we are talking about. Now, I don’t want you to laugh, but we put this up in the Court of Appeals. That is called a “boulder garden,” and that is typical of the riverbed that we are talking about at one point in time. Now by a show of hands, how many of you think that is navigable?

This river is about three inches deep, in the deep pools. So it is one thing to argue concept, but when you get right down to it, it is pretty serious stuff. Can any fair-minded person consider that to be representative of a navigable water body?

One of the things that is so scary about this case is that they want the right to portage around any areas that were not navigable. For those of you who have kayaked, you know you can simply hoist your kayak up on your shoulder and walk. Now that is one of the reasons why we had so much friend of the court interest in this case when we got to New York’s highest court.

One of the key questions in the case is, would this river be navigable for logs in the high water in the spring? This river was used during two weeks a year for log drives until 1948 with the assistance of a series of dams, sluiceways, dynamite, and armies of men moving those logs down the river. So there is an interesting question. You may remember that, when I mentioned the Morgan v. King case, I said that a water body was navigable in fact in its ordinary volume of water and in its natural condition. Now if you have got a series of dams and sluiceways to bottle up water to allow, to create necessary sequence and volume of flows and you are using dynamite to break up log jams to get those logs down the river and you have got armies of men, that raises a pretty significant question as to whether that is navigable. And one of the complexities of these types of cases is, if you can get logs down a river two weeks a year, is that good enough to make it navigable for the whole year.

I was going to tell you about the kinds of support we got. In the Court of Appeals we had over twenty property owners’ groups representing some 300,000 acres of privately owned property throughout upstate New York supporting our side of the case. The New York State Farm Bureau came in, as well. The farmers were scared to death that their drainage ditches all of a sudden would become public passageways. Not a joke. Not surprisingly, on the other side we had the river keeper who somehow argued that increased public access on pristine water bodies was going to improve water quality. I still don’t understand that argument. American White Water Challengers and a number of other advocacy groups were also involved.

We got a decision from the Court of Appeals, and it is an interesting dichotomy here. The decision said that we are adhering to the traditional commercial utility test in New York State. We are not going to deviate from that because it would have such an unsettling effect on real property rights. But what we do think is that times have changed, and we have to recognize that water bodies are no longer necessary avenues for transport for goods to market. So in making the determination on a case by case basis of whether a water body is navigable under a commercial test, we are going to take into account recreational use because recreation is big business in New York, so it has commercial utility. Okay, so that is one of the factors to be taken into account.

The Court of Appeals sent the case back for a determination, a trial as to whether this particular river met that particular standard. We then settled the case by allowing very limited access when water levels reached a certain amount. There were temporal levels on when people could pass through. There were severe limitations on incidental use.

Having said all that, I think we won the case. We established the legal standard and got a reaffirmation of the traditional legal standard in New York. So we won the case in court, but, as is also so often the case in these types of cases, and you folks know as well as I do, we are losing the case in the court of public opinion. And that very often in these cases is the most important court in which we are fighting these battles. When The New York Times and the New York Law Journal and other journals wrote articles about this decision, even though we had prevailed, they called and got quotes from the attorneys for all the defendants in the case, and we never got one phone call. And, in my view, the reporters who reported on this decision completely misunderstood and got it wrong.

What’s the danger of that? There is a change in public perception of what people’s rights are and are not, and this public relations campaign has continued. It continues today because there is now a navigable rivers bill that has been reintroduced in the legislature, and the proponent of the original navigable rivers bill is now the commissioner of DEC, and he is a strong proponent of opening the rivers and changing these legal standards. This navigable rivers bill would delegate to DEC all kinds of authority. It creates a very broad-brush interpretation which would create law in New York State as to whose rights are what, and, in my estimation, would turn the respective rights of paddlers on the one hand and private property owners on the other hand completely on their heads and reverse exactly what the law is and should be.

So I don’t mean to have a scary story for you, but it is an issue to watch. It is “death by a thousand cuts.” You have got to be aware of it, because there is a concerted effort out there to change the law again.

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