Some landowners are pushing back, arguing the sport is stepping on their private property rights. As Brian Mann reports, the dispute has sparked a kind of range war on some of the North Country's most beautiful rivers.
My journey into this story begins in the depths of Ausable Chasm, a flume of towering sandstone cliffs and whitewater in the Champlain Valley. Easy stretches of the river are a tourist attraction run by the Ausable Chasm Company. They sell tickets to families who like to hike and paddle. But there’s another class of paddlers, serious athletes who have been fighting for a decade to get a shot at some of the Ausable’s fiercest rapids.
Kayaker Andrew Ludke of Pennsylvania describes the chasm as an exhilarating challenge. “Coming over that drop, you’re entering this magical place. You’re pitting your personal skills against the natural environment,” he said. This summer Ludke was one of the first paddlers ever to run this stretch of the AusableRiver after a court decision opened the route. He was also one of the first to get injured. “I actually had trouble right at the beginning and ended up swimming out of the rapids below Horseshoe Falls,” he said. “And if I came against the cliff face I pushed off the rock 2 or 3 times and swam aggressively to the other side of the river.”
Ludke shrugs off the fact that the broke a bone in his hand. But he’s furious at what he describes as harassment by the people who own the land on both sides of the river. “They were telling us that if we put a foot on dry rock that we would be cited. They were taking pictures of us, telling that they were radioing to the police and if we got out would be cited for trespassing,” he said.
The confusion, said Ludke, put paddlers at risk. But John McDonald, president of the Ausable Chasm Company, says kayakers don’t have any business running these rapids. “Personally, no I don’t for one reason because of the safety factor. We had a fellow jump in the chasm from the bridge a few years ago. And the state police diver almost drowned trying to find his body.”
McDonald concedes that on this river the courts have spoken, given paddlers the rights to run the rapids every year. And he worries that an accident would force his tourist attraction to close for days, even weeks. “If they shut it down, we don’t have any income,” McDonald said.
It turns out this kind of feud between paddlers and landowners is common across the US. “They’ve told me to get out, given me dirty looks and threatened and I haven’t quite had a gun pointed at me whereas other people I know have had guns pointed at them. Eric Leaper is director of the National Organization for Rivers, a paddler advocacy group based in Colorado. Earlier this year, landowners in his state lobbied aggressively to defeat a bill that would’ve clarified the rights of paddlers to run most of that state’s navigable rivers, even if they pass through private property. “And rancher after rancher got up and said ‘this ranch has been in my family for 3 or 4 generations and now you’re going to come take my property,’ and I do have sympathy because they have this long-standing misunderstanding that the river flowing through their ranch is private. Now they know the county road going through their ranch isn’t private, but they think the river is,” Leaper said.
This is the pivot-point of the debate: a tangled legal argument going on state-by-state over what rivers are. Are they part and parcel of the land that surrounds them, or are they travel corridors open to everyone for commerce and recreation? Phil Brown is editor of the Adirondack Explorer magazine and an avid paddler who’s written extensively about this topic. He says here in the state of New York there’s actually a lot of legal precedence supporting the idea that rivers are a kind of traditional public highway. “This common law right dates back to old England so in a way this represents our heritage. Their was a time when rivers were used as travel, a sense that you know, a private a landowner may doesn’t the rivers, or they may own the rivers but the public has the right to travel on them,” Brown said.
Paddlers and many legal experts say navigable rivers that cross private land in New York were opened unambiguously to canoe and kayak traffic by a landmark decision in 1998 involving the Adirondack League Club. In that decision, the state’s highest court rejected the landowners’ argument that recreation and sport paddling aren’t valid reasons to use rivers that pass through private areas. “I understand their desire not to have paddlers on their land, however the law has spoken and they may not have a choice,” said Ross Whaley of the Adirondack Landowner’s Association, who’s researched the ALC decision. “It seems that the case law over time has made it clear that navigable in fact streams can be navigated by paddlers. This stems from English common law, which was the law of the state of New York prior to any legislative law. And the Adirondack League case settled that where the court said that recreational passage is allowed under the common law,” Whaley said.
That view is shared by John McDonald, head of the Ausable Chasm Company and an attorney. He doesn’t want paddlers passing through his land but says the ALC decision was definitive. “Legally they do have the right to go through the river. That case also decided was what paddlers could do. They could portage and they have the right to stop.” That means that paddlers have the legal right to get out of their boats, scout for obstacles, and even portage around them when necessary. But here in the Adirondacks, some landowners are still aggressively posting rivers that appear to be navigable.
Shingle Shanty Brook is one of those contested locations. By paddling through the posted water and making a short portage across private land, boaters are able to avoid an overland carry that’s more than a half a mile long. Based on the precedence set in the league club decision, the group I’m with decides to push on, ignoring the signs—and the cable stretched across Shingle Shanty Brook. Phil Brown and a growing number of other paddlers have made this same trip. “I mean it’s just a beautiful winding stream, marshy grasses, the day we did it there were puffy clods, sun was shining, big sky—it was just gorgeous. Any paddler would rather do that than lug his canoe through the woods for a mile.”
But Judson Potter, head of the Brandreth Park Association which owns this land, is convinced that all these paddlers are breaking the law. “There’s a camp built by my great grandfather in 1918. It’s a very important part of my family’s history and we very actively regularly use the area and we don’t want to be in the situation where there’s a conflict between members of our family and members of the public who are going through the area,” he said.
Potter has rigged automatic cameras on his land to photograph paddlers who cross the short portage trail. He points to specific details of Shingle Shanty Brook and the sometimes-complex language of the Adirondack League Club decision that he thinks means this route should remain closed. “Very simply spoken, nowhere in this ALC case does it say recreational use alone establishes navigability in fact. It doesn’t say that anywhere on this,” said Potter.
Here’s what the ALC decision actually says: “If a river is navigable in fact, it is considered a public highway not withstanding that its banks and bed are in private hands. ”And while New York’s highest court didn’t broaden the definition of proper use of Adirondack rivers, it does say explicitly that “recreational use fits within that description.” John Humbach is a law professor at PACEUniversity in White Plains, New York, who has studied the case law for river navigation rights in the state. Despite the reservations still raised by some landowners, he says the law is clear. “If it’s obviously clear that a river can be navigated because people are in boats floating down it, then it’s almost certainly going to be held to be navigable in fact,” Humbach said.
Ross Whaley with the Adirondack Landowners Association says the next step is for the state Department of Environmental Conservation to work with the legislature and with landowners and recreation groups to compile a final list of which North Country rivers are clearly navigable and open to the public. “My sense is it’s going to come to closure in legislation at some point in time—how long that’ll take, I don’t know,” he said.
A preliminary list compiled in 1990 by the DEC included no fewer than 55 Adirondack rivers and stretches of river that should be open to the public. Shingle Shanty Brook was one of the rivers on that list.