RE: NY special election Feb. 26. Turnout is critical!
This the family your talking about?
Unknown to most anglers, the right to fish hundreds of miles of waterways within New York State has hung precariously in the balance for more than a year, following a court decision that greatly limits where the public can cast a line.
The ruling stemmed from a case involving 10 fishing guides arrested in 1995 in Oswego County for fishing from their drift boats along a private stretch of the Salmon River known as Douglaston Run -- two and a half miles managed as a ''pay-to-fish'' operation.
The landowner, the former State Senator Douglas Barclay, sued for trespass. The guides argued that the Salmon was a ''navigable'' waterway -- a designation that allows access by boaters and canoeists, and has traditionally implied fishing rights. The case wended its way through two lower courts before a Court of Appeals finally ruled that while navigability did include a right of passage by boaters, it did not include a right to fish.
In a written opinion, Judge Joseph Bellacosa stated, ''The longstanding public easement of navigation in navigable-in-fact rivers does not sweep away or displace other rights . . . including that of exclusive fishery.'' In one fell swoop, the decision jeopardized decades of work by the New York State Department of Environmental Conservation.
It also meant that landowners whose deeds include river or lake bottoms could either ban fishing altogether, or charge an admission fee, even if the water in question is stocked with fish purchased with state funds. (New York State operates a massive hatchery on the Salmon River where migratory Pacific salmon, steelhead, brown trout and Atlantic salmon migrate past both public and private stretches.)
So far, the D.E.C. does not appear overly concerned about the ruling, though a department spokesman admits it could leave other state waterways vulnerable to fishing bans. ''To some extent the Barclay decision does set a precedent that could endanger the public's access rights to other properties that are similar,'' said Sam Thernstrom of the D.E.C. ''It's an area of developing case law where a lot of questions have not been answered yet.''
That is a chilling thought for anglers. Dery Bennett, executive director of the American Littoral Society, a national conservation organization that fights for public access to waterways, described the ruling as ''smacking of elitism.''
''What's next?'' Bennett asked. ''Are we going to make a kid with a cane pole and a can of worms have to pay up before he goes down to the pond to catch a few pumpkin seeds?''
According to Yvonne Kopy of the New York State chapter of the Fisheries Defense Fund, anglers have already begun feeling the effects of the court ruling. Kopy cited an example along Johnson Creek in Point Breeze, where a property owner levies a fee to fish for that stream's monster brown trout -- again stocked with state funds. The owner has even hired wardens to patrol his section of the river.
She also heard from bass anglers who had been chased from casting under docks after launching their boat at a public launch ramp.
Kopy, whose husband was one of the defendants in the original suit, questioned why the D.E.C. and Attorney General Dennis Vacco have stayed silent on this issue, noting that in similar cases in Montana, Alaska, Florida and Virginia, state wildlife agencies successfully defended anglers' rights. ''My concern is the D.E.C. and Attorney General's failure to respond to the public; how can public funds support private enterprise like this when it's forbidden in our constitution?'' she said, referring to the New York State Constitution. ''No one has answered that.''
Just last month, a Pennsylvania court considered a case involving an angler arrested after wading onto a private stretch of the Lehigh River owned by a fishing club. After key testimony by Pennsylvania's Fish and Boat Commission and others, the court ruled the Lehigh navigable, and therefore fishable by the public.
But relief may be on the way for New York anglers in the form of legislation proposed by Assemblyman Alexander B. Pete Grannis. His bill, set to go before the Assembly in this session, would essentially overturn the Court of Appeals ruling by including the right to fish under the legal definition of navigable.
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