“If a waterway satisfies all the criteria for being navigable-in-fact, it is open to public navigation for any purpose, whether commercial or recreational,” according to DEC’s general counsel. That program policy, posted online, also advises how to handle landowner complaints. The DEC posting cites prior rulings from New York’s highest court, the Court of Appeals.
“Officers shall take enforcement action for Environmental Conservation Law trespass or Penal Law trespass in situations involving persons navigating on waterways only if there is clear evidence or a court decision that the waterway is not navigable-in-law or navigable-in-fact,” it says.
Dated 2011, the guidance has remained unchanged following the December trial court ruling. The department says it’s reviewing the decision.
The DEC and defendant Phil Brown still have weeks to decide whether or not to appeal. It’s unclear whether the trial court’s conclusions will have much effect beyond those 1.8 miles of streams and ponds.
“DEC will review the guidance and make changes if deemed appropriate,” spokeswoman Erica Ringewald said. “The State Court of Appeals has set the standard for what constitutes navigable in fact and lower court decisions cannot overturn that standard.”
In December, State Supreme Court Justice Richard Aulisi, after hearing three weeks of trial testimony, reversed his own initial ruling in the lawsuit brought by the landowners who want strangers kept off their lands and waters.
Aulisi wrote that waterways through private land “must provide practical utility to the public as a means for transportation, whether for trade or travel,” part of the legal test for being determined “navigable-in-fact” under New York’s common law, which gives the public the right to use them.
He concluded that Mud Pond, its outlet and parts of Shingle Shanty Brook and Lilypad Pond have little historical or prospective commercial use and don’t meet that test.
“After hearing all the proof and reviewing the record before it, this court opines that the evidence establishes that the actual and potential use of the pond is limited to recreation,” Aulisi wrote.
“Recreational use alone is insufficient to deem a waterway navigable-in-fact, and the record reveals that only a marginal segment of the general population would benefit from using the disputed waterway for recreational travel.”
The DEC sided with Brown in the case that had wound its way up to New York’s Court of Appeals, which sent it back down for a full trial to answer specific questions including commercial utility and accessibility.
The disputed waterway is part of the so-called Lila Traverse, a roughly 17-mile canoe trip between publicly owned lands and waters in the Whitney Wilderness.
Brown is the former Adirondack Explorer editor, who in 2009 wrote an article for the magazine about his trip on the traverse including the disputed Mud Pond Waterway. He was accused by the landowners of trespassing, though the ruling against him made no such finding.
Brandreth Park members argued that there’s a state-established portage of less than a mile that paddlers can instead take to avoid their land entirely.
Aulisi wrote that evidence showed the traverse is 16.58 miles with the 0.8-mile portage, and it’s 17.86 miles with paddling the disputed waterway, which is only slightly faster. He noted that the state carry trail is the “sole, primary route available to members of the public at large” and that he disagreed with Brown’s characterization of it as an “alternate detour route.”
The landowners sued the DEC separately, claiming improper taking of their property rights. That suit has been discontinued, a spokesman for the plaintiffs said.
The department participated in Brown’s trial, arguing that the Mud Pond Waterway is navigable and should be open to outside paddlers.
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 mid-level Appellate Division upheld that dismissal but those justices were split 3-2.
In December’s ruling, Aulisi several times cited the conclusions of those two dissenting justices. He rejected the landowners’ request for compensatory or punitive damages but awarded them some legal costs — expected to be a few thousand dollars.