State Settles Major Recreational Public Access Case

Attorney General Spitzer and Department of Environmental Conservation (DEC) Commissioner John P. Cahill today announced the favorable settlement of nine years of litigation involving the public's right to access the South Branch of the Moose River in Herkimer County.

The settlement was approved by the State Supreme Court Justice Joseph M. Sise.

"This settlement ensures the public's right to travel and enjoy this beautiful Adirondack river, an historic avenue for transportation and commerce. I am pleased that our long efforts to protect the public's right of navigation on this River have been successful," Spitzer said.

DEC Commissioner John P. Cahill said: "Increasing public access and enhancing recreational opportunities on New York's waters has been a priority of Governor Pataki's and I am pleased that this settlement will once again allow the public to experience the beauty and excitement of paddling down the historic Moose River."

The litigation started after five people paddled down the South Branch of the Moose River in two canoes and a kayak on June 15, 1991. The paddlers entered the river from State Forest Preserve Land at "Rock Dam" and exited at a public campsite located in the hamlet of McKeever. During the trip, they paddled along 12 miles of the river that flows through property owned by the Adirondack League Club, a private club.

The Adirondack League Club sued the individuals (Thomas Kligerman, Jeff Jones, Carl Anderson, Lorraine Van Hatten and Robert Wolfe) for trespass. The State then intervened in the case to protect the public's right to navigation and to ensure that recreation would be considered in determining whether the public had the right to navigate the river as it passed through the Adirondack League Club property.

Much of the litigation involved the question of whether water conditions along the 12-mile stretch of river permitted navigation by small boats. By law, where such conditions exist, the public enjoys the right to travel on a river, even if the river passes through private property.

In 1998, the NY Court of Appeals ruled in this case that the test to be used by the courts in determining whether a waterway is navigable, is whether it can be used for commercial or recreational purposes. The Court of Appeals then sent the case back to State Supreme Court for trial to determine if the South Branch of the Moose River had commercial or recreational value.

Before the trial began, the parties negotiated a settlement which ensures seasonal public navigation of the South Branch of the Moose River during periods of sufficient water flow. The settlement allows the public to canoe or kayak this stretch of the Moose River between May 1 and October 15, as long as there is adequate flow. The public can determine water flow by checking the United States Geological Service staff gauge on the Moose River at McKeever in the Town of Webb, Herkimer County. The gauge must register at least 2.65 feet at any time during the 24 hours prior to a planned trip.

The public must register at the DEC Moose River Plains Recreation Area, complete the trip in one day, and not anchor, swim, fish or hunt. Access to the bed and banks of the river is allowed if a boater is seeking to avoid obstacles in the river.

The case was handled by Assistant Attorneys General John Sipos and Lisa Burianek.Attorney General Spitzer and State Department of Environmental Conservation Commissioner John Cahill today announced that a judge has ordered the shutdown of a fabric dying plant in East Flatbush. A lawsuit brought by Spitzer charged that the plant has been violating state clean air laws and has become an odor nuisance to the surrounding community. The plant is to end operations next Tuesday.

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