Not long ago, the NYSDEC’s Office of General Counsel (OGC) determined that the Delaware River and its two branches were considered federally navigable waters by the U.S. Army Corps of Engineers. The DEC modified its policy statement, OGC-9, accordingly. As a result, anglers now have the right to wade and fish in those rivers, regardless of who claims ownership of the river bottom, provided that fishermen do not cross private property for access.

Those of us who worked with the OGC were delighted to learn this determination. And while anglers can now wade and fish these three rivers, access still remains an issue, especially on the East Branch.

Some years ago I reviewed the DEC’s Region 4 Public Fishing Rights (PFR) maps, and found that there were about 25 miles of PFR areas between Downsville and Hancock. That number includes PFRs on both sides of the river. 

The distance between Downsville and Hancock is about 25 miles. There are 11 angler access points along this section of river. That being said, while that seems like a fair amount of access, there is a good deal of PFRs that anglers cannot gain access to along the East Branch. Why?

When the Conservation Department purchased PFRs along the East Branch of the Delaware River in the 1960s, the field staff did not always purchase access to those rights. As a matter of record, a PFR easement is 33 feet wide, and this is where things get tricky and difficult. As long as that easement butts against a road, angler access is guaranteed. If, however, the easement is more than 33 feet from a road, anglers cannot legally cross that property to access PFRs unless there is a state-owned footpath or parking area. As a result, there are  PFRs along the East Branch of the Delaware River that cannot be accessed because of this issue.

In essence, some landowners sold public fishing rights to New York State during a time when locals were not concerned about a few anglers crossing their fields to go fishing. That, my friends, is no longer the case. In more recent times, some of the properties along the East Branch have changed hands, and new landowners, some of them absentee, have posted their property against trespass, even if public fishing rights are on their land. Frankly, I do not know how many miles of PFRs are landlocked from anglers because of this problem, but there are enough. 

Years ago, while we were researching river-bottom ownership, I was made aware of two deeds in which PFRs were sold to the state in 1962. In addition to selling PFRs to the Conservation Department, those landowners also sold a four-foot right-of-way for access to those easements, as part of the contract agreement. To the best of my knowledge, neither one of those access rights-of-way was ever developed. 

So we contacted the DEC with an enclosed copy of both deeds, and were advised by letter that the deeds were not legitimate. That response was very odd, in that both deeds were filed with the Delaware County Clerk’s Office. With that information in mind, one has to wonder how many other deeds contain a right-of-way where PFRs were sold to the state? 

The sad part, based on our last inquiry to the DEC, is whether the agency would take on the responsibility of developing those access rights-of-way if any were found. Based on the DEC’s past track record, that does not seem likely.

So even now that the DEC has determined that anglers can wade and fish the East Branch of the Delaware, regardless of river-bottom ownership, access to sections of that waterway is no better than when PFRs were the only available mechanism. And that is because there is no access to sections of the East Branch, despite PFRs and the fact that the river can be legally waded all the way from Downsville to Hancock!

Based on additional research and notes to DEC attorneys describing the access issues associated with land-locked public fishing rights, there does not appear to be a resolution to this very difficult conundrum. It seems to me, looking back in retrospect, that when state field staff purchased PFRs, there should have been a way to guarantee access to those easements. And while landowners were not paid a great deal of money years ago for public fishing rights, they took the money. Some may have had the knowledge that despite the sale and the contract, they would not have to allow access if the easement was more than 33 feet from the road. 

So unless every one of those deeds has a condition to allow the establishment of a right-of-way for access, those landowners essentially got paid without having to allow fishing. And that does not seem right and ethical to me.