NY Fishing Rights

Dave Henderson

Press and Sun
June 11, 2008

Fishing rights in New York are fairly unique among states, and allow for a troubling latitude of interpretation.


Fish & Wildlife Bureau deputy chief Doug Stang explained, in a recent letter to the Conservation Council's Fred Neff, that if a landowner owns the bank of a New York stream, his property extends to the mid-point of the stream. If the landowner owns both banks, then the landowner owns the entire bed of the stream, within the boundaries of his property.

New York's Public Fishing Rights Program consists of the state purchasing the right for the public to trespass on private property for fishing. The DEC acquires an easement, usually 33 feet wide, along a stream or river that allows the public to walk along the stream, enter the stream and fish within the confines of the property.

If the state acquires rights along both banks, then an angler may wade the entire stream between the banks/points where the DEC has acquired the rights. If, however, the rights are acquired along only one bank, then anglers may only wade to the mid-point of the stream.

The whole river rights thing was brought to light in court late in the last century. The owners of Douglaston Manor, a resort on the Salmon River, allowed anglers to fish from their boats through the Manor's stretch of the river, but objected -- in fact, they sued -- when some river guides floated to that point, anchored, got out and waded to fish there.

Douglaston won the suit in New York's Supreme Court in 1994, gaining an injunction against any such trespass. The guides countersued for nuisance and interference with business relations.
The guides appealed and the Appellate Court reversed the Supreme Court's decision, and granted the defendants' request for an injunction against any future interference with their right to fish on the Salmon.

Douglaston appealed this decision and in February, 1997 the Court of Appeals -- the State's highest court -- unanimously reversed the Appellate Court's decision and reinstated the injunction against the guides.

The major point in the case was the distinction between waterways classified navigable as a matter of law (navigable-in-law) versus those classified navigable as a mater of fact (navigable-in-fact).

A navigable-in-law waterway is defined as one "in which the tide ebbs and flows" and is "devoted to the public use, for all purposes, as well for navigation as for fishing." If there is no tide a river is classified as navigable-in-fact, and the owners of the banks have exclusive rights to the fisheries.

These regulations came from court cases in the 1880s and 1920s, but were brought to light only by the Douglaston suit. The Court further stated that New York's practice of purchasing fishing rights from private landholders on navigable-in-fact rivers was evidence that the landholders did in fact hold exclusive fishing rights on these rivers.

Stang told Neff that if a river is navigable, "then someone in a boat can float down that water, and there is some provision for reasonable portage around in-stream barriers to navigation. What complicates things further is the determination (in some cases) that the right to fish is not conferred with the right to passage.
"So in some legal cases it has been determined that although one can freely float down a navigable river, they may not fish while doing so.

"As you can tell from my 'clear as mud' description and the confounding legal cases, discrepancies in law and their interpretation make this issue complicated and unclear.
"It is likely that more legal cases are in our future before this issue gets settled."
Delaware gets colder

Just as the friends of the river were beginning to grouse about low flows and potential thermal shock for trout in the Delaware River and its branches, DEC Commissioner Pete Grannis requested emergency releases of cold water from the Cannonsville Reservoir this week.

Recognizing a potential problem, New York, Pennsylvania, Delaware, New Jersey and the City of New York, the "decree parties" that share management responsibility of the reservoir, agreed late Monday night to the releases because of high water temperatures.

Flows from Cannonsville have been increased gradually from 260 cubic feet per second late Monday to 660 cfs by Tuesday morning. Officials anticipated maintaining that rate through this morning, coinciding with the expected arrival of cooler weather.