is it really this bad?
what has the world come to when people feel they need to ask others if it is ok to clear fallen trees? Just cut the things out of the way.
according to the DEC officer
i asked the local (NY) dept of enviromental conservation officer on this matter and this is what he has to say:
The “riparian rights” or the rights of property owners that border or include water is very complicated. The answers I have provided are general in nature and accordingly you should take no actions based on my guidance but you may need to seek the services of a lawyer experience in real property matters.
Question 1. Is it legal to cut a section away to allow kayaks to pass? Isn’t that a form of “trail maintenance”?
-trees that fall into the water from storm or other natural causes are real property that belong to the adjacent property owner and you can not cut or remove any tree without the permission of the owner.
2. Does land ownership apply to a river? In other words, can a landowner block people from floating down his section of the river?
-navigable waters belong to the state of New York and the right of a boater to navigate those waters can not be intentionally blocked or infringed upon. For instance a land owner can’t build a dock that blocks navigation. However the land on the bottom of many rivers or streams is owned by individual private property owners and this is a case by case situation. You would need to examine the property deed to determine the owner of the land under the water. Accordingly, while you do have the right to float down any given navigable water, you would not have the right to take action to remove an obstruction on another persons property without their permission.
3. Does land ownership apply to debris obstructing the river? In other words, in the above-mentioned downed trees, does the landowner have the right to prevent people from cutting that downed tree?
-See the answer to number 2.
4. If a kayaker isn’t legally allowed to cut away those downed trees, but has the right to float through that section, who’s responsible for clearing the river of those trees?
-While New York law prevents an individual from intentionally obstructing, filling, damming or altering the course of navigable waters there is no New York law or regulation requiring property owners that border navigable waters or in which navigable water flows through their property to maintain the navigability of those waters. In your specific example I would suggest you contact the owner of the property in which the obstruction lies and ask permission to remove the tree that obstructs your path.
Our local forest preserve district
relies on clubs and private individuals to help them clear a navigable path. Our paddling club, the Smallie club and Scouts pretty much have free rein. We leave habitat, but clear most obstructions on our small stream. Fishing is good, paddling is good and everybody’s happy. Because the district is friendly to the locals desires, they get lots of volunteer help in developing excellent trails and greenspace in suburban IL. There are 3 neighboring counties that work with ours to link trails, water included, and we have a real nice system coming together.
just wondering
are the same people of the “just do it” e.g. cut it down without asking persuasion, the same people who would grab a road grader if the roadwork wasn’t going fast enough for them and lengthened their commuting time?
Cooperation between local volunteers and federal state agencies is great. Knowing what laws apply is intelligent.
The Wild West approach is neither.
just cut them
– Last Updated: Oct-17-06 10:53 AM EST –
Honestly if you let the log jams buildup they are just going to cause the landowner problems with flooding. Some enviromentalists just drive me nuts with their don't do anything because you might affect the stream. Honestly if you are one of those people don't even put your boat in the stream. For all you know, getting into the boat at the start, portaging around the trees may cause some erosion when you step on the bank. The stream may be impacted by you walking up and around the tree. Maybe you will step on some bugs that live by the stream. Maybe, maybe. If there is no one around to notice you cutting the logjam out, just cut it out. If you honestly think it improves streams having trees jamming it up, then chop down trees in all the rivers you paddle and jam them up.
In most states
Normally the adjoining landowners will own the river to the thalweg or middle of the stream or river if the body of water is not deemed “Navigable”. Therefore you would have to seek their permission.
On a Navigable body of water, (lake, river, stream) the ownership is with the state, and no one has the right to interfere with the customary use of the surface of the lake. So in this instance I would guess you could cut away to your hearts content.
However, I am aware that some government departments like Department of Natural Resources would consider the action you speak of (clearing a path) as something they have the authority to regulate.
Hope this helps.
P.S. I am a Professional Land Surveyor with some experience in Riparian rights.
Clean and Through Method
Here in MI it is actually ‘legal’ to use the clean and through method which means you can clear a path through as long as you are not changing the course of the waterway. I think that is the name of the method and it is actually encouraged as long as you leave some parts in the water for habitat.
Would hate to see someone drown in a strainer that could have been avoided. ‘We’ my friends and I that is, routinely keep a few miles of the best paddling in SE MI clear. When we meet people on the river, most are appreciative. Have not had any land owners complain yet, but not too much is ‘prime’, mostly public and in flood plain areas. We just try not to make it a major production - stealth clearing!
I’d just do it
Things in NY are so crazy, as you found out, that no one can really do much of anything. I’ve read a number of peoples’ explanation of the law concerning cutting into trees in water. It seems like the answer, ultimately comes down to it being prohibited by the DEC.
If it posed a real potential for danger, and not just an inconvenience, I’d make the necessary adjustments. But, I would also be pretty discreet about it too. If you pick the right timing and/or tools, it would seem to be fairly easy to avoid a confrontation.
Laws vary state to state. In RI…
Some state laws say nothing on the subject. Some states (like NY) are afraid to take any position on it, and defer to landowners whenever a question comes up.
In Rhode Island, clearing downed trees to clear passage for canoes and kayaks is an exempt activity that does not require any permit or pre-notification. So all you RI paddlers out there, start your saws!
I know…I’m the supervisor in charge of the RI permitting program for freshwater wetlands.
-Chuck
Beware of the Consequences
Several years ago my favorite kayaking spot was a stream which ran past the campground in eastern NC where I had a travel trailer.
About two miles upstream there was a bottleneck caused by trees jutting from both sides of the stream.
Being an industrious and thoughtful individual I decided to pull the trees to their respective banks so a couple of 'yaks could get through side-by-side.
What followed was unexpected? Bass boats of all type now wave as they fly by and enter the previously shut off area. My area of peace and solitude is no more. So beware of the consequences of your action(s).
“Any day on the water is a great day”
Cal
In Florida
with few exceptions, ANY navigable waterway is public property up to the annual mean high water level. So I paddle the few steep creeks in my area in the spring to check out the actual and potential deadfalls to either avoid or cut and clear before the hurricane and rainy season starts.
Although I’ve had a few problems with property owners after a conversation with any law enforcement they had called to talk with me the LEO would then inform them that since I wasn’t trespassing and was clearing a navigable waterway, I was within my rights and there weren’t laws being broke.
downed trees as “roadblock”
– Last Updated: Nov-11-06 4:40 AM EST –
another reason that prompted me to start this thread was the reverse of what happen in the above post: instead of someone clearing a quiet stretch and ended up having a hord come through, i get the distinct impression on one of the rivers i paddle that 1 or 2 landowners purposefully cut trees near their banks so as to block passage, as if they're putting a fense up around their property to keep people out.
no, i didn't see them actually cutting the tree, but the break in them seem a little too square, too straight, for it to be natural.
Navigable waters
Just a thought:
If it is “blocked” by logs and trees, it is not or no longer navigable.
Good idea! Maybe we can pave the banks
channelize it to make it even more convenient.
They do this thing called portage. Its really a cool part of the who wildlife experience.
I rarely see trees cut out for “safety” reasons. Mainly it is for convenience of lazy paddlers who would more than likely be more at home on a couch.
thats just ingnorant thinking
so now your suggesting to trespass on someones land , which is black and white illegal.
Several trains of thought on that.
When we were in Ak, we did our own thing and researched and paddled many wilderness rivers.
Some were so clogged with down trees, that you were portaging every couple hundred feet and it got so old so quick that after a mile or two we gave up and called it quits.
If that is your thing than go for it.
I don’t mind a couple of portages, but I don’t get on a river to spend most of my time portaging.
There is one fork of the Edistoe River near Orangeburg SC, that is just now getting to the point where it is a decent paddle because of the downed trees from a hurricane several years ago.
They were begging for fishermen to clear what they could.
Sometimes nature can use a little bit of our help.
Cheers,
JackL
well
No one would cut a still living leaning tree that was blocking the way, would they?
read the laws before you sound
– Last Updated: Nov-12-06 8:26 PM EST –
stupid.
Very few places it is illegal to portage a stream that is blocked. Now, like most things this is within reason, you cannot go out of your way to walk through a persons property, but if you posses a navigable stream / river on your property there are certain allowances that are afforded the paddler. This type of dispute over property vs. portage has been before the supreme court.
for an example, i pulled up Texas...
http://www.tpwd.state.tx.us/publications/nonpwdpubs/water_issues/rivers/navigation/riddell/scoutandportage.phtml
"Use of Stream Bank to Scout and Portage Hazards
Historically, the law of Texas, both in statute and in common law, has protected public rights relating to navigable streams. Although until recently there appeared to be no Texas statute or case specifically dealing with scouting or portaging, several aspects of Texas law seem to support the proposition that a portage right is a necessary corollary to the fundamental right of navigation. The authorities set out below support the principle that when a person floating a navigable stream encounters an obstruction like a log jam or a dam, or some other potential safety hazard, the navigator has a limited privilege to go onto adjoining private land to scout and if necessary make a safe, reasonable portage. The intrusion on private land should be minimized.
Other states that have addressed the issue concur in recognizing a portage right. Of course, as is sometimes the case, particular or peculiar fact situations may alter the application of general concepts in specific instances. A recent Texas statute acknowledges that stream users do portage over or around barriers and scout obstructions, and it precludes such use from creating a prescriptive easement over the private property.
There is a fundamental distinction between using private land to portage around an obstacle and using private land as a short cut to get to or from a river. In Texas one has no right in general to cut through private land simply for convenient access to or from a stream.
Portaging Obstructions as a Traditional Part of Navigation
Obstructions have always been a natural part of streams. As the waters flow through the land, streams become obstructed by fallen trees, log jams, rapids, sand bars, shoals, etc. Historical accounts of navigating streams often mention the hazards and portages encountered. See, for example, Kenneth G. Roberts and Philip Shackleton, The Canoe, a History of the Craft from Panama to the Arctic (1983). Thus, portaging has always been a part of navigation.
The U.S. Supreme Court has explained that under the federal test of navigability (involving capacity for use in interstate commerce) the presence of a portage does not defeat navigability:
Navigability, in the sense of the law, is not destroyed because the water course is interrupted by occasional natural obstructions or portages; nor need the navigation be open at all seasons of the year, or at all stages of the water.
Economy Light & Power Co. v. United States, 256 U.S. 113, 122, 41 S.Ct. 409, 412 (1921).
As discussed elsewhere, Texas law has long recognized the public’s navigation right, a right of free passage along navigable streams. Texas law disfavors obstructions to navigation. The right to navigate would be meaningless if the presence of a single hazard—a fallen tree, for example—could legally “cut off” navigability."
you are right, its pretty black and white.... but not the way you were thinking.
Jack I know what you are talking about.
However the “lets go clear the stream” attitude is sometimes taken to the extreme where any tree in the stream should be removed. Maybe its just me and the new crop of paddlers see life a little different (you are not in this generalization) but the stream and the trees act together to create what we are enjoying. You know as well as I do that those same trees serve two functions. The first is they act to slow down the speed of the flow which can lessen some erosion that may occur and add sediment to the stream, secondly they act as habitat for the animals that live in that stream.
If you have to trim, use good judgement and trim only what is needed. If you still have to squeeze though that is ok… you are supposed to be in nature and enjoying the outdoors.
Maybe I am crazy but the wilder the stream the better. I know I am more likely to see wildlife and interesting plants. But thats just me.
not so.
while it slightly varies from state to state, you have a federally protected right to navigate a stream. Now, it has been recognized by the courts that safety is vital and at times it is required to portage around an obstruction. You have the right to do so as long as it is within reason. Now, this does not allow you to cut across land to get to and from a river nor does portage include breaks, lunch, sightseeing, urinating, and defecating.
Use of Stream Bank to Scout and Portage Hazards
Historically, the law of Texas, both in statute and in common law, has protected public rights relating to navigable streams. Although until recently there appeared to be no Texas statute or case specifically dealing with scouting or portaging, several aspects of Texas law seem to support the proposition that a portage right is a necessary corollary to the fundamental right of navigation. The authorities set out below support the principle that when a person floating a navigable stream encounters an obstruction like a log jam or a dam, or some other potential safety hazard, the navigator has a limited privilege to go onto adjoining private land to scout and if necessary make a safe, reasonable portage. The intrusion on private land should be minimized.
Other states that have addressed the issue concur in recognizing a portage right. Of course, as is sometimes the case, particular or peculiar fact situations may alter the application of general concepts in specific instances. A recent Texas statute acknowledges that stream users do portage over or around barriers and scout obstructions, and it precludes such use from creating a prescriptive easement over the private property.
There is a fundamental distinction between using private land to portage around an obstacle and using private land as a short cut to get to or from a river. In Texas one has no right in general to cut through private land simply for convenient access to or from a stream.
Portaging Obstructions as a Traditional Part of Navigation
Obstructions have always been a natural part of streams. As the waters flow through the land, streams become obstructed by fallen trees, log jams, rapids, sand bars, shoals, etc. Historical accounts of navigating streams often mention the hazards and portages encountered. See, for example, Kenneth G. Roberts and Philip Shackleton, The Canoe, a History of the Craft from Panama to the Arctic (1983). Thus, portaging has always been a part of navigation.
The U.S. Supreme Court has explained that under the federal test of navigability (involving capacity for use in interstate commerce) the presence of a portage does not defeat navigability:
Navigability, in the sense of the law, is not destroyed because the water course is interrupted by occasional natural obstructions or portages; nor need the navigation be open at all seasons of the year, or at all stages of the water.
Economy Light & Power Co. v. United States, 256 U.S. 113, 122, 41 S.Ct. 409, 412 (1921).
As discussed elsewhere, Texas law has long recognized the public’s navigation right, a right of free passage along navigable streams. Texas law disfavors obstructions to navigation. The right to navigate would be meaningless if the presence of a single hazard—a fallen tree, for example—could legally “cut off” navigability.