Who Owns an Ancient Dam in New York?

ALBANY, N.Y. (CN) - New York's Department of Environmental Conservation overstepped its authority by declaring "legal strangers" to be co-owners of an upstate dam and making them jointly liable for its repair and upkeep, a couple claims in court.

Robert and Karen Berger asked a state judge to throw out the DEC decision that named them co-owners, with David and Jody Cook, of the Honk Falls Dam in Napanoch, about 45 minutes west of Poughkeepsie, in Ulster County.

"DEC's compulsion of legal strangers to associate against their will is contrary to all authority and ultra vires," the Bergers claim in Albany County Supreme Court.

The Bergers bought land east of the dam in 1994; the Cooks bought land west of the dam in 1999.

The dam itself dates to the late 1890s, when it was built on Rondout Creek for hydroelectric power. It created 40-acre Honk Lake, which is open to the public for recreation. A state fishing guide describes the lake as "shallow and weedy, which provides excellent habitat for largemouth bass."

The DEC has regulated New York dams since the 1800s. In 1999, the Legislature, responding to dam failures after several years of flooding, amended environmental conservation law to give the DEC "the legal tools to ensure that dams are safe."

That included added authority to demand that dam owners develop maintenance programs for structural safety, and emergency action plans should a disaster occur.

The Honk Falls Dam, a concrete structure nearly 300 feet long and about 42 feet tall, was classified as deficient after DEC inspections beginning in the 1980s. An Army Corps of Engineers analysis in 1998 put the dam in the "Class C, High Hazard" category, based on its potential to damage life and property downstream.

But determining who owned the dam proved difficult.

In 1924, it was conveyed by its builder to United Hudson Electric Corp., which later became part of Central Hudson Gas & Electric. The utility sold it in 1949 to a paper mill, which was barred from using the dam to generate power and had to adhere to the extensive rights to water in Rondout Creek that New York City obtained via eminent domain in 1948.

(Ulster County is part of the New York City watershed, an area of some 1,900 square miles in the Catskill Mountains and the Hudson River Valley that supplies about 90 percent of the water consumed in metropolitan New York.)

Honk Falls Dam subsequently changed hands several times until it was acquired in 1976 by Recycled National Paper. That company lost the dam to tax foreclosure by Ulster County in 1979.

The Bergers say in their complaint that during the 1980s, the DEC "attempted to find an owner who would be held liable for the dam."

The agency tried to contact Recycled National Paper, which was out of business. It held "extensive communications" with Ulster County and the town of Wawarsing, which includes the hamlet of Napanoch.

By 1986, the Bergers say, "DEC employees charged with oversight of the dam had concluded that the dam was an orphan."

Although internal memos show the agency continued to pursue Recycled National Paper as the dam's owner up until 2006, the Bergers say it was about then that the DEC "changed its mind regarding ownership of the dam."

In 2007, the DEC cited the Bergers and the Cooks for violations of the tougher conservation law that made dam owners responsible for maintenance. The couples were charged with failing to maintain the dam's safety since their 1994 and 1999 purchases of property on either side of it.

The couples answered that they owned the land that abutted the dam - and the Cooks claimed to own the bed of Honk Lake - but they denied owning the dam or any part of it.

Hearings were held for nine days in late 2011 and early 2012 before an administrative law judge issued findings that were adopted by DEC Commissioner Joseph Martens and released as a decision and order in June.

In it, Martens declares the Bergers and the Cooks the owners of the dam from a point in the middle of Rondout Creek to their land to the east and to the west, based on case law holding "that conveyance of land along a stream or lake is presumed to convey land under the water to the centerline of the stream or lake, unless the deed expressly excludes the underwater land."

Since the couples own the underwater land, they own the dam atop it, Martens ruled.

In their complaint, the Bergers contend the DEC "has no authority to determine ownership of real property by adverse possession when ownership is disputed."

They also charge the agency with using adverse possession "as a weapon in an enforcement proceeding."

The couple claims the DEC decision to hold them jointly liable for any failing by the Cooks in the dam's continued maintenance is "contrary to all authority and DEC's own precedent, and [is] unconstitutional."

The Bergers also dispute the DEC's finding that New York City has no ownership interest or responsibility for the dam. All riparian rights attached to their property have been owned by the city since 1948, the couple says. "DEC's refusal to recognize that only the owner of riparian rights may dam a stream was irrational, arbitrary and capricious, and contrary to law," they contend.

The Bergers ask that the DEC decision on the dam be overturned, that they be reimbursed for any payments toward civil penalties assessed in the decision, plus legal expenses.

Their attorney is Carl Dworkin of Nolan & Heller in Albany.

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