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.
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