What I mean by that title is where we stand with the DEC’s Office of General Counsel (OGC) and its review of all the material we provided regarding the public’s right to wade and fish in New York State’s navigable rivers.

Those of you who follow this column are aware of the issues associated with our right as anglers to wade and fish in Catskill rivers—specifically the East Branch of the Delaware in the town of Hancock.

In 2022, my piece, “The public’s right to fish in Catskill navigable rivers,” appeared in the Fish section of the River Reporter. That article outlined the issues we have identified that are facing anglers who wish to fish sections of the East Branch where river-bottom ownership is in question. So in essence this is a review and update of what we’ve learned and what has taken place since that article appeared.

Several years ago, when we found sections of the East Branch in the Town Hancock posted against fishing, we decided to review the deeds associated with those postings. Every one of the deeds we checked stated that the landowner owned to “the mean low water mark.”

Since we did not know what that term meant, we sent inquiries to the OGC, requesting clarification.

We began that process in August 2021, and to date have not received a response.

The East Branch of the Delaware River is a navigable river and is listed as such by the federal government as navigable in fact. As a result, the public has rights, provided by the Navigation Law and Public Trust Doctrine, to conduct certain activities. Navigable rivers are considered public highways and, in addition to commerce, provide the public with the right of passage and portage. That means people can float a navigable river and carry their craft around obstacles without issue.

However, when it comes to wading the river bottom to fish, there could be conflicts.

Unfortunately, New York State does not have jurisdiction over the bottom of the East Branch. That is very likely because the land that encompasses that river was deeded forward from the Hardernburgh Patent.

For verification of the role that patents play in the ownership of property, I found the following information in River Voices, a production of the River Network: “Rivers which are navigable under Federal law, the stream bed is owned by the State, not the streamside landowner unless, prior to Statehood, ownership of the stream bed was transferred into private ownership by the United States (or the King of England, in case of lands part of the original 13 colonies).

“State ownership of these submerged stream beds was first declared by the Supreme Court in 1842 in Martin v. Waddell.”

The influence of patents is further demonstrated in Douglaston Manor v. Bahrakis, where the defendants claimed that the Public Trust Doctrine allowed them to anchor and fish in a section of the Salmon River closed to fishing. On final appeal, the court disagreed, explaining that when the State of New York transferred the deed from the McComb Patent to Douglaston, the ownership of the river bottom and the right of fishery went to Douglaston.

As it stands, the OGC, through its policy statement OGC-9 (Office of General Counsel-9) which it developed for law enforcement officers, is the document that guides conservation officers, should they receive a complaint of trespass.

In Section IIIB. Public right of fishing, OGC-9 states, and I paraphrase portions: “The public’s right to fish on non-tidal waterways necessitates a review of applicable land grants and deeds as well as a determination as to whether prescriptive easements exists.”

OGC-9 goes on to explain that if there are conflicts between landowners and anglers regarding river bottom ownership, law enforcement officers are advised not to issue tickets, but instead to consult a regional DEC attorney for clarification/guidance.

While the DEC has the authority to set enforcement policy for rivers, I do not believe that it can alter what has been set forth by the Hardenburgh Patent regarding access to the river bottom.

So here we are as interested anglers, trying to force the resolution of a very difficult issue. And it appears from the research I conducted, that the provisions provided in the Hardenburgh Patent supersede authority granted by the Public Trust Doctrine when it comes to wading in private rivers.

There don’t appear to be a lot of options here, which is the reason I recently wrote to my local senator, who is a member of the Senate Environmental Conservation Committee, seeking her input. Frankly, I don’t believe legislation would be possible in this environment, even though Montana passed a stream access law in 1985, which allows folks to wade any river regardless of who owns the river bottom. Just keep in mind that Montana did not have to deal with a variety of patents when it decided to promote and implement that access law.

History, laws, politics and patents make the resolution of river-bottom ownership a much more complex issue here in New York State than in Montana.

In addition to the DEC, we recently contacted the OGS to see whether it knows if the provisions provided in the Public Trust Doctrine supersede the authority granted by the Hardenburgh Patent when it comes to privately owned river bottoms. Hopefully we’ll receive answers to the many questions we raised with both agencies in the near future.