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Thursday, November 18, 2010

Brandreths sue in dispute over paddling rights

Phil Brown paddles on Shingle Shanty Brook.

Phil Brown paddles on Shingle Shanty Brook.

A few days ago, the Brandreth Park Association filed a lawsuit against me, alleging that I trespassed when I canoed through private land last year on my way to Lake Lila.

As part of the suit, the association is asking the New York State Supreme Court to declare that the waterways in question—Mud Pond, Mud Pond Outlet, and Shingle Shanty Brook—are not open to the public.

I did my two-day trip last May, starting at Little Tupper Lake and ending at Lake Lila, and wrote about it for the Adirondack Explorer. Click here to read that story.

I believe the common-law right of navigation allows the public to paddle the three waterways even though they flow through private land. The state Department of Environmental Conservation—as well as several legal experts I consulted—support my position. In September, DEC wrote to the association’s attorney, Dennis Phillips, and asserted that the waterways are open under the common law. The department also asked the association to remove cables and no-trespassing signs meant to keep the public out. Click here to read about DEC’s decision.

But the landowners are not backing down. They served me with the complaint in the lawsuit at the Explorer office on Tuesday.

The legal papers do not mention DEC’s decision. We have reported previously that the department and the association disagree over whether a waterway must have a history of commercial use to be subject to the right of navigation. The association contends that Shingle Shanty and the other two waterways have no such history, so they are not open to the public.

The department maintains that if a waterway has the capacity for trade or travel, and if it meets other necessary criteria (such as legal access), then it is open to the public. Furthermore, DEC says recreational use can demonstrate this capacity.

If the Mud Pond-to-Shingle Shanty route is open to the public, paddlers traveling from Little Tupper to Lake Lila will be able to avoid a 0.75-mile portage. That certainly would be a boon. But the larger question is whether the public has the right to paddle waterways that connect parcels of public land, public lakes, or other legal access points. After all, how many rivers in the Adirondacks and elsewhere in the state pass through private land at times? I’m guessing a lot.

Phil Brown

Contributor Phil Brown was editor of the Adirondack Explorer from 1999-2018. When he isn't at his desk, he's usually out hiking, paddling, skiing, or doing something else important.

35 Responses

  1. Mark says:

    Hang in there, Phil. Your story served the public interest in the most obvious way, and was totally responsible. How in the world could they claim to have been harmed? I hope you countersue the crap out of them and win damages for your legal hassles. And that their legal ploy backfires and they end up establishing clearer law on the public’s rights to these waterways. Meantime, we readers appreciate your independent reporting and courage.

  2. Josh says:

    Give ’em hell Phil

  3. Solidago says:

    Mark, the Sierra Club, the State of New York and ADK failed to prove that the South Branch of the Moose River, once one of the top 5 log driving rivers in the Adirondacks, used for transporting logs for over 50 years, and clearly useful for recreational travel, was subject to an easement for public travel.

    We see this same picture of Shingle Shanty Brook over and over, yet we never see pictures of the South Branch, which was the subject of the last lawsuit instigated by recreational activists, which lasted almost a decade and went all the way to New York’s highest court, only to be settled. Why is that?

    In Morgan v. King, the court held that the section of the Raquette River in question, capable of transporting logs aided by men in boats for two months of the year, was NOT navigable-in-fact, concluding “It would be going beyond the warrant of either principle or precedent to hold that a floatable capacity, so temporary, precarious and unprofitable, constituted the stream a public highway.”

    Why are you and others so confident that this minor waterway is clearly a public highway?

    Mark, your comment makes it sound as though you think people should make their property available for public use, and if they don’t, they should be coerced into doing so. And if they resist the coercion by asking that the legal claims being made be proven, they are guilty of a “legal ploy.” Interesting attitude.

  4. Paul says:

    Phil,

    The recent DEC decision will not have any bearing on your case. What the courts have decided is what matters now.

    The principle question I see. The Moose River case said that “recreational boating” can be used as ONE measure of Navigability-in-fact. If the court decides that it is the ONLY necessary measure than you win. If there are other measures that should be used than you may be in some trouble. I expect the latter.

    Good luck.

  5. Mark says:

    Solidago, reasonable minds will differ on how to interpret the law in this case. But your sneering use of the term “recreational activists” speaks volumes. I prefer the term “the people.”

  6. Phil Brown says:

    Paul, thanks for the good wishes. We shall have to see what the courts decide.

  7. Marc says:

    Best of luck, Phil! I have just re-read Morgan v. King, and I again come away feeling that the paddlers (and DEC) have the right idea– essentially, that recreational paddling is the modern equivalent of log driving. At any rate, it will be a good outcome if the case finally makes the rights of all concerned clear.

  8. Steve says:

    I guess Solidago doesn’t learn easily, because all of the relevant points were thoroughly covered after one of Phil’s previous stories. At that time Solidago repeated the same things over and over, and he apparently has nothing new this time, either. It seems that the Brandreths also don’t have anything new.

    The fact is that the South Branch was found to be navigable in fact when the appellate division granted summary judgment, though that ruling was voided when the Court of Appeals accepted the case. Despite ending with the settlement, the case was still decisively won by paddlers for several reasons. Solidago apparently fails to understand (or willfully denies) that the Adirondack League’s reason for settling before the appellate Division retried the issue of navigability is almost certainly because the settlement left them one small, token morsel, while a court ruling likely would have stripped them of even that. What paddlers got in the settlement was considerably more than the biggest piece of the pie: access for virtually all of the periods during which people would want to paddle the South Branch. The tiny morsel left for the Adirondack League was in salvaging their ability to prevent the very small percentage of access that might have occurred during hunting season and the dead of winter.

    What’s much more important about the case is what paddlers got from the ruling that was issued by the Court of Appeals. That ruling is just one of the many nails that will go in the coffin when the Brandreth’s argument is buried. The federal laws are very clear tha what makes a stream navigable in fact is its *capacity* for commerce, which comes from the streams character, not its actual use. The Court of Appeals ruled that recreational use is one valid way of establishing that capacity. There is absolutely nothing in the law that requires a history of commercial use. I imagine that such an argument would only be put forth by a lawyer who is billing by the hour and has a desperate client.

    While it’s theoretically possible that a court could find that the character of the disputed waterways are such that they don’t have the capacity for commerce and are therefore not navigable in fact, I expect that the choice of a different legal argument tells us that the plaintiffs have no expectation of such a ruling. Of course the reality is that, as in Adirondack League v Sierra, Phil doesn’t need the court to rule that the streams are navigable in fact. It’s up to the plaintiff to prove that they aren’t.

  9. Solidago says:

    Thanks for clearing things up Steve.

  10. Shane (Long Lake) says:

    We are planning a trip in the spring with 15-30 people kayaking and canoeing through. This is specifically to challenge this!

  11. Cody says:

    Phil, How can we help? Can you be represented by DEC’s legal counsel or do you have to retain your own? I would be willing to donate money for legal expenses… Please let us know.

  12. Phil Brown says:

    Cody, thanks a lot for your kind offer. It’s still very early in this process, so we are just beginning to think about how we will defend this lawsuit. We’ll keep you apprised of developments.

  13. Solidago says:

    Phil, if you managed to convince a court that the capacity for recreational travel alone is sufficient for a water to be “navigable-in-fact,” why wouldn’t any marsh, swamp or stream stretching between two roads or other public access points then be considered a public highway?

    Also, given that the common law doesn’t take into consideration the type of watercraft that can be used on a navigable-in-fact water, what would prohibit the use of these lovely boats on all of these public highways? – http://www.youtube.com/watch?v=j5q0XPMqruc

    Although this lawsuit is about this specific route, the legal principles and rationale that a decision would be based on would have to apply uniformly across the State of New York.

    Any group or person, especially those who consider themselves environmentalists or conservationists, should seriously consider the possible consequences of “victory” before rushing to support this cause.

    There are things more important than the “right to recreate,” and the ability to paddle your canoe or pilot your airboat wherever it will take you.

  14. Jeff says:

    Although I favor private property rights I have to question the why this association is working overtime to prevent recreational paddlers from going on the water through thier property. As long as you aren’t fouling the water or littering the land I don’t see what thier point is.

  15. Solidago says:

    Jeff, to start, I think any landowner would want to go through the expense and trouble of having a court look at the law and the facts in a circumstance like this, where over 150 years after the state sold the property, people are demanding recreational access by claiming that the state has held an easement for public travel over this route the entire time.

    As for the impact of recreational travel over this route, accounts make a good portion of it sound like a marsh, referring to it as being ‘extremely clogged with vegetation’ during the summer (the height of paddling season) – http://www.adkforum.com/showthread.php?t=4455 (read posts 13, 20 and 27).

    Images from Google (taken May 4, 2009, at the very beginning of the growing season and when water levels are typically at their highest in the Adirondacks) support these observations – http://bit.ly/a21DBL

    Paddlers repeatedly forcing their boats through marshy wetlands ‘extremely clogged with vegetation’ are likely to destroy the vegetation and create channels that will alter the water flow. On top of that, you have to consider the prospect of the introduction and spread of invasive species like Purple Loosestrife or Phragmites, which paddlers traveling long distances through multiple wetlands are ideal for doing. These invasives love marshy wetlands like this and quickly gain footholds in disturbed areas where the slower growing and less aggressive native vegetation has been destroyed.

    If the public has a legal right to recreationally travel through a wetland area like this, regardless of the environmental consequences and other practical considerations (like the fact that there is a shorter, more direct, and perfectly legal route to reach the same point – http://www.adirondackexplorer.org/images/home/stories/lilatraversemap.jpg ), think of all of the other places in New York State anyone in any sort of watercraft might be able to go.

    Given not only the likely far reaching consequences of “victory” for sensitive wetlands across the state, but also the consequences for this specific area, is recreational access to this route something that ostensibly pro-environment groups like the Sierra Club, ADK or even the Adirondack Explorer really want to fight for?

    This is a lot to think about even before considering the legal strength of the case, which I think even the most ardent ‘recreational activist’ or ‘navigation rights advocate’ would acknowledge is far from rock solid.

  16. Paul says:

    Jeff, I see what you are saying but this common law if expanded in this way would allow all “recreational boating” on these waterways. I think that even Phil has been advised that this would not be restricted to non-motorized use. If the “waterway” is a public highway than it is a public highway open for any economically relevant use. You will have to take the good with what many here might see as the “bad”. The cat is out of the bag, thanks to Phil and others, we can’t put it back now. These owners have asked the court to rule on the matter. I hope they make the right decision. Can a sensitive wetland that traverses private land be open under the common law for any and all economically relevant use? What do you think is the right decision?

  17. Paul says:

    Jeff, I should clarify. The Sierra Club case that Phil and the DEC will use says that “recreational use” not boating is one measure of NIF. If this decision say that it is the ONLY necessary measure under the common law than the flood gates are open. It is not only paddlers that can use these waterways.

  18. Dean says:

    Only the state can own water, This was proven on the salmon river @ Douglaston Manor. Even retired Senator Barklay could not win this one.

  19. Phil says:

    Paul, DEC does not lose its right to regulate recreational use on a waterway just because a waterway is “navigable-in-fact.” It prohibits or limits motorized use on many NIF waterways. As to the waterways in dispute, they can be reached only by paddling through the Whitney Wilderness, where all motorized use is banned. So there is no risk that they will be invaded by jet skis and airboats.

  20. Paul says:

    Phil, that is true that the state can place limits on state owned waterways not on ones where the banks and bed are private land. Also, the common law covers all waterways not just this isolated brook. This isn’t just about Shingle Shanty Brook. Take for example the stretch of the East Branch of the St. Regis I have seen discussed in these stories. There you could put a Jet Ski in at Rice Brook (like where the paddlers start) and Jet Ski several miles of the river before getting back to state owned land. If the court rules that RECREATIONAL BOATING is all it takes to make the waterway NIF (or they already have as you claim) then the water is open for ANY recreational boating. A strange “partnership” between paddlers and power boaters has formed!

  21. Solidago says:

    Phil, do you honestly believe that it would be a good thing for any wetland in the State of New York stretching between two public access points, such as roads – even those wetlands ‘extremely clogged with vegetation’ – to be open to unrestricted recreational travel?

  22. Steve says:

    As in previous threads, where they were all debunked, Solidago is once again trotting out his favorite straw man arguments.

    For better or worse the applicable law on navigability does not address environmental concerns. Of course neither do the laws governing traffic over paved roads. I’m reasonably sure that pollution, 40,000 deaths annually, and many other results of that traffic are considered somewhat problematic by at least a few people, but that doesn’t mean that we prohibit traffic merely to please the adjoining property owners. The law simply determines whether a given waterway is navigable or not based on the characteristics of that waterway. Fortunately there are other applicable laws that do address environmental issues, and as Phil points out, being NIF doesn’t mean that usage is completely unrestricted. As it happens, being NIF or navigable in law is one of the requirements for the ability to enforce some environmental regulations.

    The law on navigability also covers the effect of heavy vegetation and other obstacles on hazards. The simple answer is that such obstacles have little bearing, and a waterway can be navigable despite many obstacles and hazards.

    Of course, Solidago once again brings up the straw man of alternate routes. Such alternatives have no bearing on navigability. Perhaps he thinks that waterways should automatically be considered NIF if there is no alternative route for paddlers?

    The argument about “any wetland in the State of New York stretching between two public access points” is yet another red herring recycled from previous threads. The law is very clear that if such a route has the capacity for commerce then it is NIF. As above, obstacles in the wetland do not prevent it from being navigable, even though they increase the difficulty of that navigation. Roads may provide a public access point, but navigability is determined by the physical characteristics of the waterway.

    This should all be fairly clear to anyone who has made the effort to familiarize themselves with the relevant law. I can only conclude that Solidago and the Brandreths either aren’t familiar with the law or simply choose to ignore what is abundantly clear. Adirondack v Sierra is far from being the only case that establishes that a history of commercial use is required. It’s possible, though unlikely, that the Brandreths may prove that the characteristics of the waterway in question aren’t sufficient for it to be NIF, but they have no chance of winning by establishing a requirement for actual commercial use, or with straw man arguments about the environmental damage caused by some wildly hypothetical influx of an unrestricted public.

  23. Solidago says:

    Steve, thanks for the laugh. I’m glad to see you’re still so vigorously representing The People, and won’t let any legal, practical or ecological consideration get in the way of rhetorical victory.

  24. Explorer hires lawyer in paddling dispute @ says:

    […] Adirondack Explorer has hired Glens Falls attorney John Caffry to defend me against a lawsuit filed by landowners who claim I trespassed when I paddled through their property near Lake Lila last […]

  25. steve says:

    Solidago – The Brandreths are fortunate indeed that there are people like you to offer a powerful and well reasoned rebuttal when others claim the law is against them.

  26. Cody says:

    So Solidago: if there were absolutely no other consequences, you would support allowing non-motorized craft to travel down the Mud Pond-to-Shingle Shanty route in question? Please answer that explicit question without a smokescreen…

  27. luvsadk says:

    Interesting that the Brandreths are pitting their deep pockets against an individual with shallow pockets in an effort to intimidate him and any other potential paddlers. This is a shameful thing. Now, predictably, the Explorer has decided to support their editor. As a small not-for-profit voice of the Adirondacks, they do not have the deep pockets of the Brandreth family and it is entirely possible that high legal costs could extinguish that voice. If the Brandreths have so much concern about possible trespassing, they should ask the DEC to prosecute. Obviously the Brandreths realize that the DEC as law enforcers do not believe any law was broken. It is too bad that we do not have the English legal system where the loser pays court costs because the Brandreths will not win in court but may win via intimidation. Again I say shame on them.

    Solidago (goldenrod???) are you on the Brandreth legal team? It seems you spend a lot of time defending their position and bringing in extraneous material. Last summer I canoed Lila to your Shingle Shanty Brook cable. This summer, because of the Brandreth suit, I am sorely tempted to canoe past the cable. Will you sue me too?

    Phil, you and the Explorer: keep up the good work. Keep us posted on how we can provide financial support!

  28. john t says:

    The silence is deafening, but says so much.

    Fortunately for Phil, and the rest of us who paddle, the DEC has asked the state to step in:

    http://tinyurl.com/NCPR-DEC-intervention

    That doesn’t mean others shouldn’t, or won’t get involved. Hopefully several organizations that represent wilderness users and paddlers will also step in, at least as friends of the court, if not as financial support.

  29. Bob says:

    Solidago is consistently entertaining.

  30. Phil says:

    Luvsadks et al., thanks again for your support.

  31. Paul says:

    I am curious since the DEC appears to support the unrestricted navigability of this brook, why do they also appear to support the restrictions placed on the South Branch of the Moose river? It is a much larger and deeper waterway?

  32. Lyn DuMoulin says:

    Having been turned around at the chain across the Shingle Shanty Brook for many years, I support Phil Brown and the Adirondack Explorer. I am not an attorney and I do have two questions: 1. Do land owners own waterways if they own the land surrounding the waterway? 2. Is paddling that waterway if those paddlers do not land trespassing?

    Anyway, Phil if you need it, I too will contribute what I can. In my experience I have yet to see quiet water people who can navigate their boats that far into the wilderness be disrespectful or destructive…quite the opposite.

    Phil, you are a courageous fellow.

    Hey fellas exactly who is “Solidago”?

  33. Solidago says:

    Lyn, here’s what New York’s highest court said in ALC v. Sierra Club – “As a general principle, if a river is not navigable-in-fact, it is the private property of the adjacent landowner. If, however, a river is navigable-in-fact, it is considered a public highway, notwithstanding the fact that its banks and bed are in private hands.” – http://scholar.google.com/scholar_case?case=18383162631078485309

    If the waterway is ‘navigable-in-fact’, then paddling it, and even ‘absolutely necessary’ portaging and other activities related to travel is not trespassing. The question here is whether or not that route is ‘navigable-in-fact.’ Phil thinks it is, the landowners think it isn’t. It is as simple and straightforward as that.

    As to whether or not it is navigable-in-fact, that’s what the court will decide. In the1866 Morgan v. King decision, it was found that the portion of the Raquette River in question, which was capable of floating logs for two months of the year, aided by men in boats, was NOT navigable-in-fact – http://www.courts.state.ny.us/reporter/archives/Morgan_King.htm

    The ALC-Sierra Club case, which was over the South Branch of the Moose River, once one of the top five log driving rivers in the Adirondacks, went all the way to New York’s highest court, and then the parties settled before it could be determined whether or not the river was navigable-in-fact.

    In Hanigan v. State, the court stated – http://scholar.google.com/scholar_case?case=6197878374151361043

    “The decision in Adirondack League Club v Sierra Club (supra) did not alter the established standard for determining navigability so as to permit a determination of navigability based solely upon a waterway’s suitability and capacity for recreational use. Rather, we expressly adhered to the traditional commercial use standard and held only that a waterway’s use for recreational purposes can, in an appropriate case, be relevant evidence on the issue of the waterway’s suitability and capacity for trade, travel and commerce.”

    Cody, if the landowners wanted to provide access, that’d be fine with me. Sure, the environment along the route would be worse off, but every time we head into the woods we do something to damage and disturb the vegetation, land or wildlife to some degree. I value the environment, but that doesn’t mean that we all should stay out of the woods and off the waters. I also value outdoor recreation, but that doesn’t mean that I think it should be pursued at all costs. What I’ve got a problem with here are the tactics being used in an attempt to gain recreational access to this route, which seem to largely disregard the facts, the law and the consequences.

    Luvsadks, if you think it is ‘shameful’ for the subject of Phil’s relentless campaign to ask him to prove the legal claims he’s been making ad naseum against them in the Adirondack Explorer and elsewhere (that this route is ‘navigable-in-fact’ and therefore a public highway), and if you consider facts and law relating to this case ‘extraneous material,’ then I don’t think there’s much purpose in trying to reason with you.

  34. Paul says:

    Lyn, what is “courageous” about possibly trespassing on someone private property? Like I said if he (or you) feel the signs are illegal then why not deal with it by using the justice system? Seems more courageous than sneaking under the rope?

  35. Greeneyezz says:

    Hi Phil,

    I followed this link form the adkforums. I’ve also read several of your articles over time.

    Just wanted to say I support you.

    ~ZZ

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