Who Owns the Delaware River?

[Update: In our April-May 2022 issue we ran a story titled “Public or Private” in which author Beau Beasley called on New York State to settle the issue of wading access on the Delaware River. In particular, he asked the state to address the situation on Long Flats Pool, where a Home Owners Association has posted “No Fishing” and “No Wading” signs along the riverbank, asserting ownership of the riverbed to the center of the river. Three years later, the New York State Department of Conservation (NYSDEC) had still issued no statement or policy concerning these signs, so Beasley crafted the following story “Who Owns the Delaware?” to force some sort of resolution for wading and floating anglers who encounter the signs, or who may be wondering about their rights to fish in the rest of New York.

After the story was completed, edited, and this issue was about to be sent to press, NYSDEC General Counsel Thomas S. Berkman issued a policy revision dated May 14, 2025, that reads in part “Navigable Waters are subject to the public right of navigation for any commercial or recreational purpose. Pursuant to applicable case law, the public also has the right to fish on Navigable Waters, except under extremely limited circumstances. Attempts by private landowners to interfere with the public’s right to navigate or fish on Navigable Waters violates Federal and/or State public trust interests in the waterway. Where a Navigable Water runs across or adjacent to private lands, private landowners do not have a right to close the Navigable Water to the public or otherwise harass the public for using those waters for navigation or recreational purposes, and may only close it to fishing in the rare circumstances where title to fishing rights has been formally passed to the landowner . . . The presence of barriers, “no trespassing” or “posted” signs that threaten criminal prosecution, or verbal statements by private landowners discouraging navigation by the public do not affect whether a waterway is a Navigable Water”  . . . “Furthermore, the public right of navigation on a navigable-in-fact water includes all incidental uses that are reasonably necessary to enjoy the right (e.g., portaging over private property to avoid rapids, falls or obstructions) so long as this occurs by the shortest, most direct safe route. The public also has the right to walk on the bed of the waterway to guide a boat through shallow areas, to go on privately-owned shoreline to scout for the best route, and to otherwise touch the streambed incident to navigation.”

To our knowledge NYSDEC is not attempting to have the signs removed, as the signs are on private property and landowners have the right to post whatever they please on their property. According to this new directive from NYSDEC, which you can find at dec.ny.gov merely by searching for “Public Rights Of Navigation And Fishing,”  the signs are of no legal consequence and the public has the right to wade the river bottom and fish on the East Branch of the Delaware and all other navigable-in-fact waters in New York State until a judge rules otherwise. The following story may be slightly outdated due to the May 14 policy. The Editor.]

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What can one accomplish in three years?

Law school takes three years. A relatively healthy adult can plan and train for and then climb Mount Everest in three years. Or complete every one of the Camino de Santiago routes several times in three years. Or walk across the United States and back again twice in three years.  Magellan and his crew circumnavigated the globe in three years.

What one apparently cannot do in three years, however, is figure out where anglers can safely fish on New York’s famed Delaware River.

In an article in the April-May 2022 issue of Fly Fisherman, I highlighted a riparian landowner’s claim to private, exclusive ownership of a portion of the Long Flats Pool on the East Branch of the Delaware. The basis of this claim is a land grant issued from England’s Queen Anne in 1708 to colonial officer Major Johannes Hardenbergh.

I spoke to one landowner who expressed his belief that, not only is his claim of private ownership valid, but every riparian landowner whose deed was included in the original land grant has the same exclusive rights. It’s worth noting that the original Hardenbergh grant spans nearly two million acres and encompasses land in several New York counties (including Ulster, Delaware, and Sullivan). Moreover, the landowner asserted that sections of the Beaverkill River are also subject to private ownership. Those riparian landowners should officially state their claim, he argued, since those landowners insist the New York State Department of Environmental Conservation (NYSDEC) has no authority in such matters.

So, New York, who owns the river? Will another three years pass before this issue is resolved?

Inquiring Anglers

My interest in the Delaware was piqued when a wading fly fisher asked for my help. Riparian landowners had posted a sign on the river, he said, and he wondered if this was legally binding. The NYSDEC had been unwilling to provide anglers with a coherent answer.

Nothing has changed since my article was published three years ago. The sign in question remains posted—at the end of a parcel of upland property purchased by the state explicitly for public fishing access, no less, which only adds to angler confusion. The privately posted sign, however, states in no uncertain terms that wading in the river without the express permission of the Long Flats Pool HOA is illegal. Crossing the river to fish the other side and wading farther upstream is impossible due to the deep water. License-holding anglers are led to believe that they may not proceed upriver in a public fishery, even if they do so while staying within the low-water boundaries of the river. The sign further directs anglers to contact NYSDEC with questions. But many have done so and received no help.

“I’ve experienced firsthand the DEC’s unwillingness to address blatant violations of their own policy,” says Rod Futerfas, a longtime fly angler who often fishes the Delaware. “The existing policy says ‘no fishing’ signs are illegal and that the DEC shall advise the property owners that their acts to post and prevent fishing constitute a public nuisance.” When Futerfas explained to an employee at the DEC regional office that he wanted to report just such an offense, he was told that because the sign was on private property, there was nothing the DEC could do. “I reminded him of their own policy, which speaks to this issue. He clearly had no idea what I was talking about. He said, ‘Have a nice day,’ and hung up on me.”

I spoke to numerous anglers who believe NYSDEC is ignoring the issue in the hope that it will simply go away. “I told him I was an attorney,” says Futerfas. “I told him I was familiar with their policy. I even tried to read the DEC policy to him, and he hung up on me.”

Employees appear, he argues, to have been instructed not to accept any complaints concerning stream access. “So if the policy is to have agency employees refuse to accept complaints from the public, if the policy is that public concerns about access won’t even be accepted, what can we expect in the future from this agency?”

Access and Usage

From its founding, the United States has debated river access and usage. Native Americans and settlers alike used rivers as avenues for commerce. Waterways were divided, therefore, into two basic categories: navigable waters suitable for commercial trade and used by farmers and manufacturers to move goods up- and downriver; and non-navigable waters that aren’t.

In part to prevent private citizens from charging tolls to use waterways, Congress passed the Rivers and Harbors Act of 1899, which vested the Army Corps of Engineers (ACE) with jurisdiction over certain navigable rivers and the power to claim the surface of those rivers as the property of the United States, to prevent the curtailment of trade.

Generally speaking, when the ACE has deemed a river navigable, most states automatically claim ownership and control of the river’s bottom. This is often referred to as the Public Trust Doctrine, which simply means the state holds the river bottom in trust for the public’s common use. Just as all citizens may drive an interstate highway regardless of whose property it passes through, likewise river bottoms crossing through or beside private lands are subject to public use.

Rivers that are deemed non-navigable and not subject to ACE’s jurisdiction can be privately owned in nearly every state. River access laws vary widely from state to state, but the New York State code is clear: Navigable rivers and their beds are held in trust for the public’s use and enjoyment.

New Claims of Ownership

In spring 2025, a letter appearing on letterhead from the law firm Bond, Schoeneck & King (with an office in Syracuse, NY) circulated among riparian landowners and once again raised the issue of private ownership of the river. The missive is from an organization called the Riverland Defense and Unity Foundation (RDUF), the mission of which is to “protect and preserve the natural habitats of the Delaware River from exploitation and protect landowners’ rights along the upper Delaware River.” RDUF claims the right to deny access to wading anglers on this section of the Delaware.

The letter references the Hardenbergh land grant. Directing their fire specifically at anglers, the RDUF argues that guided fishing trips have significantly increased river traffic, destroying the “peaceful tranquility” of the area and driving down property values. In addition, the letter requests that the political leaders in the towns of Deposit and Hancock ensure that the missive be read openly in an official setting so that the public is fully aware of landowner claims. (For more information about RDUF, visit rduf.org.)

Accordingly, in a déjà vu moment, the time seemed right for me to reach out again to NYSDEC with numerous questions about the Long Flats Pool HOA signage. I asked:

1. Did your agency give landowners permission to use the imprimatur of NYSDEC to bolster claims of ownership? If yes, why?
2. Is your agency enforcing this ‘No Trespassing’ sign—stopping anglers from fishing and wading on the river bottom near the sign?
3. Does your agency officially acknowledge any other claims of private ownership (that is, exclusive fishing rights and wading rights) along New York’s Delaware River? If so, where?
4. Has your agency requested in writing that this sign be removed?  

The reply I received from NYSDEC was nearly identical to the one I received three years earlier:

“DEC is conducting a stringent review of applicable land grants and deeds and whether any prescriptive easements exist to make an appropriate determination regarding the legal status and who has valid fishing rights in the area in question.

The signs posted are not official DEC signage or endorsed by DEC. The property and access rights in this area are currently under review. Additional updates will be provided as they become available.”

In other words, nothing has changed, and DEC can offer the public no more clarity than it could three years ago.

Perhaps I should’ve spent the intervening years in law school after all . . .

Dollars and Sense

Normally, money talks. And the Delaware certainly generates its fair share of tourism dollars. Visiting anglers stay at local hotels, eat at local restaurants, pick up gear at local fly shops, and hire local guides. All this commerce translates to good times for towns like Hancock and Deposit. Premier local players like West Branch Angler Resort and The Delaware River Club employ numerous New Yorkers to cater to visiting anglers.

According to a study by the American Sportfishing Association, in New York alone recreational fishing has an economic impact of nearly $2 billion annually and supports more than 20,000 jobs. In addition, anglers residing in or visiting the state contribute hundreds of millions of dollars to conservation through license sales, excise taxes, and donations.

Navigable Waters

NYSDEC does have legal guidance on this issue from its Office of General Counsel (OGC), which is in the process of updating its policy and asking for public input on a new draft. Unfortunately, the policy reads like a case of one step forward, two steps back. One section of the policy states:

“Navigable Waters are subject to the public right of navigation for any commercial or recreational purpose. Pursuant to applicable case law, the public also has the right to fish on Navigable Waters, except under extremely limited circumstances. Attempts by private landowners to interfere with the public’s right to navigate or fish on Navigable Waters violate Federal and/or State public trust interests in the waterway. Where a Navigable Water runs across or adjacent to private lands, private landowners do not have a right to close the Navigable Water to the public or otherwise harass the public for using those waters for navigation or recreational purposes, and may only close it to fishing in the rare circumstances where title to fishing rights has been formally passed to the landowner and no fishing easement exists . . .

The presence of barriers, “no trespassing” or “posted” signs, signs that threaten criminal prosecution, or verbal statements by private landowners discouraging navigation by the public do not affect whether a waterway is a Navigable Water.”

That seems awfully clear. But wait: There’s more, of course.

“The public has a general right to fish on publicly owned “navigable-in-fact” waterways in New York State. However, the public’s right to fish on privately owned “navigable-in-fact” waterways in New York State necessitates a review of applicable land grants and deeds, as well as a determination as to whether any deeded or prescriptive easements exist.”

And there it is: Anglers must wait—and wait, and wait—for a “review” of grants and deeds. And 16th century Portuguese navigators could complete a circumnavigation of the globe faster than the issue of fishing rights on the Delaware can be resolved by New York State.

Judging by the posted signs and the RDUF letter and website, the riparian landowners clearly believe they are well within their rights to control access to this section of the Delaware. Their claims are nearly identical to those of a riparian landowner on the Salmon River in Pulaski, New York, who had his day in court—and eventually won his case.

In Douglaston Manor v. Bahrakis 1997, the New York State Court of Appeals found the riparian landowners did indeed have the right to bar the public from fishing. The finding was predicated, however, on the fact that the landowners demonstrated they not only owned the riverbed but had retained exclusive fishing rights, transferred to them by New York State at the time of purchase.

None of the relevant deeds concerning the Delaware River that I have viewed conveys exclusive fishing rights. Indeed, those deeds don’t even include riverbed ownership. But as far as Delaware River access and usage are concerned, what I have or have not seen—or do or do not believe about ownership—is irrelevant. The governing body that can clarify all this for landowners and anglers alike has for some reason consistently refused to wade in—yes, I went there—and resolve the issue.

Very Few Answers

Riparian landowners should expect to be secure in their property rights. They also have the right to discover if they do indeed own the riverbed and have exclusive fishing rights on the waterway. Fly anglers, who tend to be conservation-minded folks who have a great respect for lands and waterways, generally eschew trespassing on upland property. They’re rarely uncivil or ill-mannered, but they are zealous about their own property rights—the rights held in trust for them as American citizens and taxpayers. Delaware fly-fishing guides, working hard to make a living—and to provide a significant return on their clients’ investment of time and money—are also not asking too much to expect a straight answer from the agency tasked with managing the state’s waterways.

Perhaps stakeholders can prevail upon New York State Assemblyman Brian Maher (518-455-4807; maherb@nyassembly.gov), and/or State Senator James Skoufis (845-567-1270; skoufis@nysenate.gov), both of whom represent the area, to pressure NYSDEC for clarity about Delaware River public access and usage. Surely their constituents—landowners, anglers, and other river users—deserve an answer in less time than it takes to walk from New York to California and back again.

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Beau Beasley is the director of the Virginia Fly Fishing & Wine Festival and an investigative outdoor writer. His latest book is Healing Waters: Veterans’ Stories of Recovery in Their Own Words.

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