Craig and I decided we were going to take a couple hours and do some New Years Steelhead fishing. We went to one of our favorite Lake Ontario tributaries and was greeted with bright and shiny Posted signs. We found what we believed to be a public section of the tributary and gained access through that point. A bit further downstream of this unposted area, we ran into an angry land owner who told us to leave or he was going to call the cops.
Of course we left immediately and it started a conversation between Craig and me about what New York State actually says about fishing rights in the rivers, and creeks we fish so often. There are two things to know when fishing private land. One is the “navigable in law” rule and the other is Public Fishing Rights. This is what we found out.
- New York allows the right to navigate on freshwater waterways that are non-tidal even if that waterway is private property. This is how the DEC defines this New York State Law:
Q.
May a person travel in a boat or canoe on a waterway which is posted?
A.
The answer to this question depends in part on whether the waterway is subject to the tides. Waterways that are affected by the tides are considered to be “navigable in law” and the public automatically has a right to navigate on these waters, regardless of who owns the bed or if the waterway is posted. The issue of whether the public has a right to navigate on freshwater waterways not affected by the tides is more complex. The public has a right to navigate on freshwater waterways that are publicly owned, but has a right to navigate on freshwater waterways crossing private property only if the waterway is “navigable in fact.” The courts have held that a waterway is navigable in fact if, in its natural state and ordinary volume of water, it has practical utility to the public as a highway for trade, travel or transport. Both utility for commercial use and capacity for recreational use can be considered in determining whether a waterway has such practical utility. If a waterway satisfies this test, it is navigable in fact regardless of whether a court has ever made a finding on the issue, and regardless of whether the property owner posts no trespassing signs on the waterway.
A waterway may be navigable in fact even if it is not capable of being navigated against its current and even if the capacity of the waterway for supporting navigation is not continuous over time, as long as the capacity necessary to support navigation continues for a sufficient length of time to make the waterway useful as a highway for trade, travel or transport. A waterway may also be navigable in fact even where it contains occasional rapids, falls, dams or other natural or manmade obstructions so long as it nonetheless is useful as a highway for trade, travel or transport. If a waterway is navigable in fact, the right to public navigation authorizes a boater to get out of the boat to pull it around obstacles or to get around obstacles by portaging over private property, so long as the portage is by the most direct and least intrusive safe route possible. The right to navigation does not authorize the public to go on private land for purposes not directly related to navigation, such as camping, hunting, or hiking. Also, the public may not cross private property for the purpose of accessing or leaving a navigable waterway.
Q.
If I have a right to navigate on a waterway, do I also have the right to fish from my boat on that waterway?
A. It is clear that the public has a right to fish in tidal waterways and publicly owned non-tidal waterways. However, the fact that a particular freshwater waterway on private property is navigable in fact does not by itself mean that the public has a right to fish in the waterway. The right to fish on a privately owned, navigable in fact waterway depends on several factors, including: deeded rights of the property owner; whether the State has acquired public fishing rights from the land owner; and whether the public has acquired the right to fish as a result of a history of fishing without landowner permission. A 1997 New York Court of Appeals ruling found that the public did not have a right to wade in the water to fish, or anchor a vessel to fish, in thenavigable in fact freshwater Salmon River where it crossed property owned by Douglaston Manor. Wherever fishing is permitted, you must remember to acquire any necessary permit and comply with all applicable laws and regulations.
Conclusion:
The issues of whether particular freshwater waterways are navigable in fact and whether the public has a right to fish in privately-owned waterways that are navigable in fact can be complex. When in doubt, the prudent paddler or angler will consult with the landowner and, if that does not result in a satisfactory resolution, Department of Environmental Conservation personnel.
- New York State Public Fishing Rights
Public Fishing Rights (PBR) are permanent easements purchased by the NYSDEC from willing landowners,giving anglers the right to fish and walk along the bank (usually a 33′ strip on one or both banks of the stream). This right is for the purpose of fishing only and no other purpose. Treat the land with respect to insure the continuation of this right and privilege. Fishing privileges may be available on some other private lands with permission of the land owner. Courtesy toward the land-owner and respect for their property will insure their continued use.
Click Here for the PBR easements in your region and fishing destinations in New York State.
I know that most of my fly fishing friends know these laws but as we travel around the country and sometimes other countries sometimes the laws get a bit muddled and we tend to forget the laws of our home state. I for one will be quite a bit more cautious when fishing private land.
Land owners that do not give the state licensed fishermen the right to fish should be taxes on the increased value of their homes which include a private fishing area.