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Thursday, July 26, 2018

‘Explorer’ paddling rights trial to begin in August

Phil Brown, editor of the Adirondack Explorer, canoes Shingle Shanty Brook in 2009.
Photo by Susan Bibeau,

When Adirondack Explorer Editor Phil Brown paddled his eighteen-pound canoe through private property on waters linking public lands in 2009 he touched off a legal battle that continues today and may help clarify paddling rights.

Originally scheduled for this month, Brown’s trial is now slated to begin August 20 in New York State Supreme Court in Johnstown and is expected to last into September. If there are appeals, the case could continue for another year or two, according to Brown’s attorney, John Caffry.

The landowners—the Brandreth Park Association and the affiliated Friends of Thayer Lake—filed a trespassing lawsuit against Brown eight years ago. New York State later intervened on Brown’s side and in defense of the public right of navigation.

As the parties were preparing for the trial, the plaintiffs lodged a second lawsuit in June, this one against the state Department of Environmental Conservation. In supporting Brown, they contend, the state is disregarding private-property rights. Brown is not a party in this second court action.

Brown paddled through private land for an hour or so during a two-day trip in 2009 between Little Tupper Lake and Lake Lila. When he reached private property, he kept on paddling instead of undertaking a 0.75-mile carry across state land. The waterway in dispute consists of Mud Pond, the pond’s outlet, and a portion of Shingle Shanty Brook in the town of Long Lake—all part of the headwaters of the Beaver River. In court papers, it is referred to as the Mud Pond Waterway. It entails a short carry around rapids.

In their latest lawsuit, the landowners contend that Brown ignored no-trespassing signs and wrongly “gambled” that he had the right to paddle his canoe—a twelve-foot Spitfire made by Placid Boatworks—over the waterway, which connects two tracts of the public Forest Preserve.

In 2010, DEC Assistant Commissioner Christopher A. Amato paddled the same waterway with permission and determined that it should be open to the public. In a letter, he asked the landowners to remove the posted signs and cables over the waterway.

The landowners are blasting Amato’s conclusion and accuse the state of taking their land rights by authorizing public use without just compensation.

The new lawsuit arose as Brown, the state, and the landowners prepared to go before a state court for the fourth time.

State Supreme Court Justice Richard T. Aulisi dismissed the case in 2013—not after a trial, but after hearing legal arguments from all the parties. Two years later, the Appellate Division of State Supreme Court ruled 3-2 to uphold Aulisi’s decision. But New York’s highest judicial body, the Court of Appeals, said in 2016 that it could not make a decision without additional facts. It overruled Aulisi and ordered a trial be held.

At issue is whether the waterway is “navigable-in-fact,” legal terminology applied to waters that are open to the public. The landowners contend that a waterway must have a history or capacity for commercial use to be deemed navigable-in-fact and that the Mud Pond Waterway is not suitable for commercial use. Brown and the state contend that a capacity for recreational use is sufficient to establish a waterway as navigable-in-fact (assuming legal access) and that, in any case, the Mud Pond Waterway has been used to transport beaver pelts and other goods and is suitable for guided trips.

The Court of Appeals said more information is needed on the waterway’s character, its historical use, and its prospects for commercial and recreational use.

DEC declared in a 1991 memo that waters are open to the public if they have been used for commercial traffic in the past, even long-ago log floats or fur-trade travel. They are considered highways even if the land below is privately owned, according to the DEC.

In new court papers, Dennis J. Phillips, lawyer for the landowners, says the state dredged up an “archaic” exception with that finding. Phillips also asserts that Brown enlisted DEC to his mission to write an in-depth story about the disputed waterway (which Brown denies).

Phillips emphasized in the recent court papers that an 1851 “letters patent” obtained by former owner Benjamin Brandreth documented the Mud Pond region as private. He also recently discovered an 1892 statute that declared that the headwater tributaries of the Beaver River—which would include Mud Pond—not be considered a public highway for logs, timber or “products of the forest.”

Phillips would not comment for this story.

The state attorney general’s office, which is representing DEC, contends the new lawsuit should be put on hold until the first case is decided. In a letter to Justice Aulisi, Assistant Attorney General Philip Bein also asserted that the 1892 statute is irrelevant. “It regulated logging but has nothing to do with navigation of the Mud Pond Waterway for recreational canoeing and kayaking, the matter to be addressed in this case,” he wrote.

Essentially, the lawsuit against Brown is a dispute over what the Court of Appeals meant in a 1998 decision in a suit filed by the Adirondack League Club against five people who paddled through the club’s land on the South Branch of the Moose River. In that case, the court said the test of navigability-in-fact is “whether a river has a practical utility for trade or travel.”

In that decision, the Court of Appeals went on to say that fears “that consideration of recreational use unduly broadens the common law standard and threatens private property rights is unfounded. We do not broaden the standard for navigability in fact, but merely recognize that recreational use fits within it.” In their suit against Brown, the plaintiffs say commercial use remains a necessary component of the navigability-in-fact test.

Thomas Kligerman, one of those five paddlers, said he is looking forward to a decision in Brown’s trial. He said he knows the Mud Pond Waterway is navigable because he paddled it in 2013—after the Appellate Division ruling. With his girlfriend aboard, he took a longer and heavier canoe and made it through with no trouble. Like Brown, they carried a short distance around the rapids.

Colin Bradford, the former president of the Brandreth Park Association, said he can’t discuss the pending litigation, but he thinks that the Adirondacks, long known for bitter fights, are trending toward a spirit of compromise—“ a sense where everybody’s interests need to be heard and included in a decision.”

Click here to read Phil Brown’s original account of his trip.

Keep up with news of the Park. Subscribe to the Adirondack Explorer today: https://goo.gl/PeuX5X

 

James Odato

6 Responses

  1. George L. says:

    In 1893, William Seward Webb sued the state of New York for $184,350.60 for damages he claimed to have suffered from the flooding of the Beaver River, after the original dam at Stillwater was enlarged by the state. The higher water, said Webb, interfered with his ability to remove standing timber from his lands that bordered the river.

    Central to Webb’s legal pleadings, the testimony given on Webb’s behalf by locals, the numerous experts hired by Webb, and the mass of documentary evidence, was Webb’s assertion that the Beaver River and its tributaries were a “natural highway” for the transport of his property – i.e. logs and timber

    Shingle Shanty Brook is a tributary of the Beaver River. Plaintiffs ignore the history of the use of Shingle Shanty as a commercial passage between Little Tupper and the Beaver River.

    Historically, and legally, Phil Brown’s defense is on solid ground.

  2. Christopher Helms says:

    What a greedy Petty person this is, I had always understood that as long as you didn’t step out of your canoe ,connected waterways where legal to navigate through, again as long as you didn’t step off the canoe onto private land!

  3. Ron S. says:

    Christopher it is easy for people to ascribe words like, “greedy” and “petty” upon the landowner, especially when they are not the one paying the property taxes on the piece. Our club owns three miles, both banks of a large river in Franklin county, portions of which are rapids and have to be portaged around. Should we just open the land to everyone? If so why should we even be landowners? Do we have rights? Not an easy issue. On the surface the case this story is based on sounds like the paddler was trespassing to me. Do you just turn a blind eye and let everyone? What is even worseis the state steps in and take away your rights as a landowner. I am just asking you think about these things before the name calling starts.

  4. Francis colvin says:

    I to thought it was ok to pass through private property while paddling either a canoe or kayak as long as one stays within the vessel, respecting the land owners right,s of privacy and quietude

  5. Thomas Kligerman says:

    It seems like yesterday to me, but on Dec. 17, 1998, the Court of Appeals stated very clearly what rights one has on navigable streams – including “the right to navigate carries with it the incidental privilege to make use, when absolutely necessary, of the bed and banks, including the right to portage on riparian lands.” You don’t have to just stay in your canoe – where necessary, you may touch the bed and banks to portage (I like the Adirondack term carry) your boat as needed. It’s a short read – https://www.law.cornell.edu/nyctap/I98_0162.htm

  6. yoshootme says:

    well since buying about 400 acres in the Adirondacks, I have come to learn that what my idea of private property is and those who “have been hiking on my land for 100’s of years” varies greatly. There is a complete disregard by many, especially when the land “they” suggest should be accessible by ANYONE looking to enjoy my beautiful vistas, and CERTAINLY by those who have been doing so for “100’s of years”, to my rights as a property owner. So the “biggest” landowner in the area (whose family has been here for 100’s of years) thought I should allow hikers and hunters, as he enjoys the hiking here as well. Well I suggested he should allow me (and anyone else) to fish off his very beautiful lake front home , to which he said, “that is just not going to happen”. When did private property, one of our fundamental rights and of primary importance in our founding become a grey area?

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