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Thursday, July 26, 2018

‘Explorer’ paddling rights case in judge’s hands after trial

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

A new ruling is expected by year’s end in the eight-year-old lawsuit that pits landowners against outside paddlers over rights to a two-mile waterway in the remote northwestern Adirondacks.

State Supreme Court Justice Richard Aulisi, after hearing three weeks of trial testimony this summer, is tasked with deciding whether Mud Pond, its outlet and parts of Shingle Shanty Brook and Lilypad Pond are “navigable in fact” where they pass through private land and therefore open to any canoeist or kayaker.

The land is owned and controlled by the Friends of Thayer Lake LLC and affiliated Brandreth Park Association, whose members sued because they don’t want strangers on their land and waters.

The defendant is former Adirondack Explorer editor Phil Brown, who in 2009 wrote an article for the magazine about his trip on what Aulisi in court has taken to calling “the disputed waterway.” He is accused of trespassing.

New York’s Department of Environmental Conservation subsequently sided with Brown. The DEC concluded the two-mile stretch, part of the so-called Lila Traverse between publicly owned lands and waters in the Whitney Wilderness, is rightfully open to the public.

Brandreth Park members disagree. They say there’s a portage of less than a mile that paddlers can and should take on the 17-mile traverse between Little Tupper Lake and Lake Lila to avoid their land entirely.

The owners have sued the DEC separately, claiming improper taking of their property rights, though the department has also participated in Brown’s trial and could resolve that issue there.

In 2010, after two senior department officials canoed the waterway at the invitation of the landowners, the DEC said its settlement attempt failed and advised Brandreth to take down its “No Trespassing” signs and remove its cameras, calling its attempts to keep the public off the waterway “unlawful.”

In 2013, Aulisi dismissed the landowners’ suit based on legal arguments in the case. The midlevel Appellate Division upheld that dismissal but those justices were split 3-2. New York’s Court of Appeals, its highest court, sent the case back down for a full trial, concluding the voluminous “conflicting or inconclusive evidence” needed to be sorted out there.

“The record is not conclusive with regard to, for instance, the waterway’s historical and prospective commercial utility, the waterway’s historical accessibility to the public, the relative ease of passage by canoe, the volume of historical travel, and the volume of prospective commercial and recreational use,” the top court said.

In closing arguments on Wednesday, attorney Amanda Kukle said the legal test for a public easement on waterways through private land is “practical utility to the public,” that historical records show it was used commercially and that recreational use may be part of the legal test for navigability.

“Mr. Brown had a right to use Mud Pond Waterway,” Kukle said. “There was no trespass.”

Assistant Attorney General Nicholas Buttino said eight paddlers testified they traveled along it at various times between 2009 and 2017 and had no difficulty. He asked the judge to find the landowners created a public nuisance with efforts to stop the public.

Brown “overreached” in 2009 by using the waterway without asking permission, and the state did the same by stating publicly that it was open, attorney Eric Schwenker countered. “All the defendants have done is made a case that they should purchase this property.”

Schwenker noted that the state’s and Brown’s witnesses all said they preferred paddling through to carrying their boats on the state path around the private land and that they enjoyed the solitude. “So what if they preferred that? The law doesn’t confer a right to the public based on the subjective preferences of a few people,” he said.

At trial, Justin Potter, a member of the extended family of landowners who monitors that part of their holding, said the waterway’s use by outsiders was extremely infrequent. Cameras placed along it showed “four groups of strangers” canoed it in 2010, he said.

“The question we had is how often we would bump into strangers on the property,” Potter said. “People who are not my cousins, people who I do not know, people who are not members of the Brandreth Park Association and who are not their guests.”

In about 180 days that he was in that area over the past decade, he didn’t encounter any outsiders, Potter said. He noted that the rapids at the Mud Pond outlet are “not canoe-able,” that the association established a 500-foot portage trail around them for its use that strangers have used and that he has cut trees farther downstream that fell across the waterway, which was needed to make it passable, and that low water and beaver dams can impede canoeing.

Brown testified he used that short portage trail, which also bypasses a low footbridge, and ran into no physical obstacles on other parts of the two-mile stretch except the trespassing signs and a cable the landowners has placed across it at the property line.

“When I paddle I like to get away from civilization so to speak,” said Brown, also an author of canoeing guides. “This was as scenic if not more scenic than many of the trips I’ve done.”

Christopher Amato, former DEC assistant commissioner who canoed the disputed waterway, said, “It was incredibly scenic … very remote and very wild,” and it was “an easy paddle.”

Amato had helped some Boy Scouts carry canoes on the three-quarters of a mile portage that avoids canoeing through private land — a group that simply happened to be there the day he was. He said that DEC-maintained alternative route was “a difficult carry,” kind of overgrown with treacherous footing, a portage that he “wouldn’t want to do … again.”

  

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

 

Michael Virtanen

Michael Virtanen joined the Adirondack Explorer staff in March, asked to take an in-depth look at certain places, issues and unanswered questions in the Adirondack Park. He worked previously as a correspondent for the Associated Press in Morgantown, West Virginia, and at the Capitol in Albany for the wire service and for daily newspapers in Albany, Utica and Amsterdam, N.Y. He had been an occasional free-lance contributor to the Explorer and went on some outings with then-Editor Phil Brown, who once led him up the popular rock climb Pete’s Farewell on Pitchoff Chimney Cliff overlooking the Cascade lakes and Route 73 outside Lake Placid.

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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