May 10, 2022
By Beau Beasley
Editor's Note, 6-2-22: The New York Department of Environmental Conservation has responded to this story with this official statement: "Navigability and public access rights are issues of great importance to both the public and DEC. DEC is aware of the various access issues surrounding the status of the Delaware River system, along with a number of other waters of interest. As a result, DEC is in the process of conducting a thorough legal review of the issue, related case law, and access rights. DEC will be providing guidance on the matter once the review is completed." Fly Fisherman will continue to track this story as developments occur.
Each year thousands of fly fishers make their pilgrimage to the great New York tributaries of the Delaware River, and with good reason: The beauty of the clean, cold water is intoxicating as it winds its way through the Catskill Mountains, placidly flowing past old farms and family homesteads that lie in stark contrast to the neon, concrete, and noise of the Big Apple to the south. Visiting anglers find the river not only picturesque but chock full of healthy brown and rainbow trout, some of which easily exceed 20 inches. Montana, Wyoming, and Colorado may win the “fly-fishing” word association game, but American fly fishing was actually born right here in the Catskills.
The East Branch of the Delaware flows from the Downsville Reservoir; its West Branch flows from the Cannonsville Reservoir. The branches converge near the town of Hancock to create the main stem, which is popular with anglers, kayakers, and other water lovers as well. Businesses that cater specifically to fly fishers—like West Branch Angler and the Delaware River Club—host thousands of guests annually, who contribute millions of dollars and serve as economic lifelines to small towns like Hancock and Deposit, New York. Lodging is a significant source of tax revenue, but so too are sales generated in fly shops and meals purchased at local restaurants and taverns. Many anglers part with hard-earned cash to splurge for a guided trip on the river, casting comfortably from a drift boat under the watchful eye of a resident expert. From far and wide come the fans of the Delaware River, to escape the harried pace of modern life and soak up the solitude for an afternoon.
But all that might be about to change.
Among the Delaware River’s most devoted fans are its riparian landowners, who believe an 18th-century land purchase entitles them to deny public use of the river bottom. In 1706, Colonial officer Major Johannes Hardenbergh, who served with General George Washington, purchased what has come to be known as the “Hardenbergh patent”—nearly two million acres of land that encompasses what is now
New York’s Sullivan, Ulster, and Delaware counties—from the Delaware Tribe. The purchase was confirmed and officially deeded to Hardenbergh and six others in 1708. Over the years, the massive and complex deeds were handed down to new owners, the land was subdivided—and today establishing ownership is a bit of a mess.
The position of some current landowners is that they are protecting the property upon which, by law, they are obligated to pay taxes. They have grown weary of entitled, disrespectful river users who leave a trail of empty beer bottles and other, even less savory detritus in their wake. Landowners lament that disgruntled anglers have cursed at them on their own property; others have routinely witnessed river enthusiasts relieving themselves, and stumbled upon human feces on their own property.
Long Flats Signs
Walter Engelke, who has fished the Delaware River watershed for decades, observed, “Recently I’ve noticed people sectioning off the river for themselves, denying the public access to what is supposed to be a public fishery.” Engelke points specifically to a sign affixed to the Public Fishing Rights (PFR) marker upstream from Long Flats Pool, a public access point purchased and managed by New York’s Department of Environmental Conservation (DEC). PFRs, purchased by New York State from willing sellers, are sections of land that run adjacent to a river that allow anglers access to the river. They can be hundreds of yards long but are generally no more than 33 feet wide. Users may not use PFRs to camp or stay overnight, and anglers are not allowed to access or use “upland property” (land above the river’s edge) without the landowner’s permission. Once in the river, however, anglers assume they are free to roam up and down the river as long as they stay below the water line. All the PFRs available to the public are marked by signs along the river and on maps published by the NYSDEC.
The sign to which Engelke refers effectively cuts off all access to wading anglers because the opposite side of the river is several feet deep. “What irks me,” says Engelke, “is I can’t get a straight answer out of anyone at NYSDEC. You call there asking for direction, and no one seems to know anything. Instead you just get transferred from one person to another.”
Glenn Erickson, also a fly angler, belongs to the Long Flats Homeowners Association, comprising those who have property adjacent to the river. The association has posted multiple signs warning anglers not to enter the river without obtaining their express permission. Erickson claims his property, and that of every other riparian landowner along the East Branch, extends to the center of the river because they are associated with the Hardenbergh patent. Riparian landowners, argues Erickson, can deny the public the use of the Delaware riverbed, as well as that of the Beaver Kill.
The East Branch is hardly the only contested river bottom. In fact, river access and usage are hotly debated across much of the country. Although there is no uniform standard that applies in all cases, the U.S. Congress has provided some clarity. Section 10 of the Rivers and Harbors Act of 1899 gives the Army Corps of Engineers (ACE) the authority to deem a river navigable. Congress took this action to allow for commercial use of some rivers, for floating logs and other farm goods to market, and to prevent landowners from putting up private tolls.
Most states recognize the ACE as the prevailing authority on the issue of navigability. States may retain the right to deal with the riverbeds themselves, however, which is why riverbed ownership has become such a big issue. If a state owns the riverbed in trust for the public, then the public is free to walk up and down the river as long as they stay in the river. If the river is non-navigable, you may be trespassing without even knowing it—which is why I always recommend avoiding non-navigable waters without the express permission of the landowner. Even if you are fishing a navigable waterway, once you step out of the river and venture on to dry land, all bets are off.
Back on the East Branch, Erickson makes his claims to ownership on the basis of four assertions. First, he says that approximately 20 years ago he was informed by a NYSDEC surveyor that as a riparian landowner, his land ownership extends to the center of the river by default. It is in fact quite common for riparian landowners to own to the center, or thread of a river, if these rivers are deemed non-navigable. Many states (such as my own, Virginia) take this position—but others do not. In nearly every case, however, rivers that carry a navigable rating like the East Branch are not subject to private ownership. As a general rule, where the federal government asserts its ownership of the surface of a river (because it is deemed navigable by the ACE), nearly all states by default claim to own the riverbed of said river and hold it in trust for the public. There are some exceptions, one of which is in New York. (More on this later.) The biggest problem with Erickson’s claim, however, is that no state employee can grant independent ownership of a river bottom without some sort of legal review. Moreover, NYSDEC has no record of such independent ownership on this portion of the Delaware.
Second, Erickson asserts that several years ago Dave Brandt, then president of a local chapter of Trout Unlimited that now bears his name, told him that he recognized Erickson’s claim of ownership. A renowned Catskill fly tier whom I knew personally for many years, Brandt is now deceased—making it impossible to independently verify this assertion. The conversation may very well have occurred, but as previously stated, no individual has the legal authority to officially recognize such ownership. The current leadership of the Dave Brandt Chapter of TU state emphatically that they are solely a conservation organization and have no interest in entering into land disputes.
Third, Erickson and fellow landowners contend that their claims to ownership are analogous to those addressed in Douglaston Manor, Inc. v. Bahrakis (1997), which they insist NYSDEC uses as its standard for determining ownership. In Douglaston Manor, Inc. v. Bahrakis, a riparian landowner on New York’s Salmon River argued that his claim of ownership superseded that of the state. Local anglers and others rejected the landowner’s assertions and continued to fish. Eventually the riparian landowner brought legal action against a guide, who continued to fish on his property even after being warned numerous times to stop.
The landowner’s argument? The riverbed was privately owned, and the owners had exclusive fishing rights. It is worth noting that every day hundreds of anglers were fishing this portion of the river, because the state advertised the river as public property. Although Douglaston Manor, Inc. v. Bahrakis was brought against a single trespasser, it had broad application to others fishing on the river.
Among other findings of Douglaston Manor, Inc. v. Bahrakis, the court determined that New York State retained its mineral rights even after private sale of the land, since this provision was written into the deed at the time of purchase. As the state made no such similar attempt to retain its fishing rights in the original deed, however, those fishing rights were transferred at the time of sale to the new owner.
The outcome of this important case is obviously an attractive one for riparian landowners. Nevertheless, Erickson’s claim of ownership is on a different river, in a different county, with a different deed containing its own unique language and provisions. Landowners interested in a decision like that of the court in Douglaston Manor, Inc. v. Bahrakis will likely have to bring suit to get it. Other similar cases I have written about in Virginia and elsewhere can easily cost private landowners big money—$100,000 or more—to resolve.
Finally, and most significantly, Erickson argues that the deed he holds extends to the center of the river. Requests for a copy of the deed were denied, and the NYSDEC had no such record of private ownership at their office. At the local courthouse, I tracked down a deed to property matching the description of Erickson’s, and the language does indeed support his claim to the land “together with all riverbed, boulders, riverbank and lands lying between the centerline of the East Branch of the Delaware River and the bank of said river as so described hereinabove and lying between those properties . . . .”
On its face this appears to be an ironclad argument—Erickson’s strongest by far. Nevertheless, it requires further inspection. First, this deed is part of a “quit claim” filed in 2014. A quit claim occurs when one party quits a claim of ownership and it passes on to the next owner. A quit claim is intriguing because often the quitting party is saying, in effect, “I’m not really sure what I own, but if I do own anything in this area, I am giving up any such claim to the new owner.” This release of ownership is important because of course a party can’t claim to pass on or transfer what is not theirs to begin with. This is precisely why homeowners purchase title insurance, which protects them from any defects in the title.
Erickson appears to have purchased his property from a holding company that shares the same address; in other words, he seems to have purchased the property from himself or someone close to him, which is both legal and common. However, the original deed to the purchased property, to which the quit claim was filed, makes no mention whatsoever of river bottom ownership; instead it describes the property boundaries in part as “shoreline” and “edge of the river.” Indeed, I could find no language about river bottom ownership at all in deeds to the property before Erickson’s original purchase. Such language appears to originate in the quit claim. The fact that this quit claim was recorded does not make it valid or legally binding.
According to longtime Delaware River angler Mark Toepke, Erickson is not the only riparian landowner to post portions of the East Branch. Toepke says that Dan Plummer, a well-known local conservationist and riparian landowner, personally asked him to leave while he was fishing. Plummer has worked tirelessly to preserve and protect the Delaware River. In addition to his work with Trout Unlimited and the Portland, Oregon-based Wild Salmon Center, Plummer served for years as chairman of a conservation organization called Friends of the Upper Delaware River (FUDR).
Plummer’s property is posted, though the sign does not assert ownership to the center of the river as does that of the Long Flats HOA. Still, anglers like Toepke believe it is ironic that Plummer would be such a strong advocate for the river, and then deny the public access.
Plummer is an affable man who is eager to share his concerns for the river with those who are interested in helping him protect it. When he came on board FUDR, Plummer says, a great deal of animosity simmered between anglers and riparian landowners; he and others have gone to great lengths to mediate these disputes and promote understanding among all parties. Plummer’s dedication to the Delaware is admirable, and he couldn’t be a more gracious interlocutor. At the same time, he steadfastly refused to comment on his own private property claims, as is his right.
Delaware riparian landowners have every right to secure their private property. This will, however, likely require much more than simply posting a sign if landowners hope to discourage the public from enjoying what they believe is a public fishery. According to New York real estate attorney Rod Futerfas, the fact that a property deed does not specifically include language that mentions the river bottom doesn’t necessarily mean a property owner does not have a claim to ownership.
Excluding the public, however, “is an entirely different matter and can be very difficult to prove without express language in the deed that clearly spells out your ownership rights. Most states like New York have a very strong Public Trust Doctrine,” Futerfas explains, “and that would have to be overcome. Such claims of ownership are rarely cut and dried and can be very difficult to discern apart from a court ruling.”
No riparian landowner I interviewed could cite a case granting exclusive control of the Delaware River bottom to a landowner. Instead, landowners appear to have hitched their wagons to the star that is Douglaston Manor, Inc. v. Bahrakis. But what exactly does the case mean for public fishing and private property more broadly?
Says the New York DEC’s Office of General Counsel, in two relevant sections: Waterways subject to the public right of navigation may be navigated for any commercial or recreational purpose, and attempts by landowners to interfere with the public’s right to navigate violate the State’s trust interest in the waterway, i.e., the owner of a navigable waterway has no right to close it to the public or otherwise harass the public.
The presence of barriers, “no trespassing” or “posted” signs, signs that threaten criminal prosecution, or oral statements by landowners discouraging navigation do not alter whether a waterway is navigable-in-fact. Rather, such posting, obstructions, and statements concerning a waterway that is navigable-in-fact constitute a public nuisance in violation of the common law right of public navigation. Either the state or the public can sue a landowner if a landowner tries to interfere with the public’s right to navigate on waterways that are in fact navigable.
The right to fish while navigating on a navigable waterway depends on a variety of factors. Virtually all tidal waterways are publicly owned, and a member of the public with the necessary license or permit therefore has a right to fish there. Also, the public may generally fish on non-tidal waterways that are publicly owned. However, the public’s right to fish on privately owned non-tidal waterways necessitates a review of applicable land grants and deeds as well as a determination as to whether prescriptive easements exist.
A 1997 ruling of the New York Court of Appeals, Douglaston Manor, Inc. v. Bahrakis, et al, 89 N.Y. 2d 472, 655 N.Y.S. 2d 745 (1997), indicates that where the bed of a navigable-in-fact waterway is privately owned, the owner has an exclusive deeded right to the fishery and there is no assertion that either individual anglers or the public-at-large hold a prescriptive right to fish, then the public does not have the right to wade in the water to fish or anchor a vessel in the water to fish without the permission of the property owner.
The NYSDEC confirms, then, that these public/private questions necessitate “a review of applicable land grants and deeds as well as a determination as to whether prescriptive easements exist” and suggests that riparian landowners must demonstrate an “exclusive deeded right to the fishery” to be able to keep the public away. Without a doubt, anglers who trespass and leave trash and other unmentionables on private property have acted egregiously and should be held accountable; in some cases, however, riparian landowners who chase anglers out of the water may themselves fall afoul of the law.
The Long Flats HOA certainly has the right to post upland property to prevent trespassers; nevertheless, signs warning the public to stay off the riverbed may be unenforceable without a determination from the NYSDEC or the courts. When asked about the signs posted by Erickson’s HOA, NYSDEC staffer Kevin Frazier replied, “The signs are not official DEC signs or endorsed by DEC in any way, and the matter is under review.”
The sign itself seems to violate NYSDEC’s own regulation (6 CRR-NY 59.1-A) since it is affixed to a PFR signpost funded through fishing license sales. And when would this review be completed? Multiple requests for an answer to that question went unanswered. As of this writing, the HOA signs that claim private ownership of the river bottom remain in place, and as far as I am aware, NYSDEC has made no effort to remove them.
According to the Delaware County Sheriff’s Office, no one has been successfully prosecuted for trespassing while standing on the riverbed in Delaware County.
Let’s be clear about what we do know: Anglers have a right to fish in certain settings, but purchasing a fishing license never gives anglers the right to trespass. A waterway may be public, but crossing private property to access that waterway is trespassing. If you wish to fish in a particular area and know for certain it’s privately owned, be sure to ask the landowner for permission. If you do find yourself on privately owned property by accident and you’re challenged by the owner, leave politely.
Whether landowner or angler, those who find themselves embroiled in a streamside confrontation should consider a couple of ideas before doing something they regret. First, remain calm and summon law enforcement. Often opponents are in possession of two different sets of facts; assume the best until an officer of the law arrives to sort through claims. If either party is unhappy with the officer’s on-the-spot decision, you can always follow up with the proper supervisor or government official. Second, remember that, generally speaking, both parties are interested in enjoying—and, one hopes, preserving—a precious natural resource. Perhaps a more collegial perspective, a sense that in many cases landowners and outdoor enthusiasts are on the same side, could prevent tempers from flaring while interested parties await resolution. Landowners are generally in search of peace and quiet, and anglers should only be interested in fighting fish—so everyone has a stake in resolving differences amicably.
This is an issue that needs to be addressed by the NYSDEC. Rather than turn on each other, let’s turn to our governance structures and demand clearer guidance.
Beau Beasley (beaubeasley.com) is an author, conservation writer, and the director of the Virginia & Texas Fly Fishing Festivals. His detailed research and objectivity have earned him praise from both sportsmen and landowners. While he frequently writes about legal issues, his articles should not be construed as legal advice.