The Adirondack Explorer has hired Glens Falls attorney John Caffry to defend me against alawsuit filed by landowners who claim I trespassed when I paddled through their property near Lake Lila last year.
The state Department of Environmental Conservation has said the waterways in dispute—Mud Pond, Mud Pond Outlet, and Shingle Shanty Brook—are open to the public under the common-law right of navigation.
Caffry represented the Adirondack Mountain Club (ADK) in another navigation-rights case, Adirondack League Club v. Sierra Club et al. That lawsuit resulted in a landmark decision in 1998 by the Court of Appeals, the state’s highest court, in which the judges ruled that recreational use could be considered in deciding whether a waterway is open to the public under the common law.
Caffry said the new lawsuit, filed last week by the Friends of Thayer Lake and the Brandreth Park Association, could impact paddlers throughout the state.
“Not only does this case have the potential to block public access to a navigable waterway, but if the outdated legal theories advanced by the plaintiffs were to be adopted by the courts and become the law, the state of the public’s right of navigation would be set back over a hundred years,” he said.
The landowners assert that a waterway must have a history of commercial use to be subject to the common law. Furthermore, they say Shingle Shanty Brook and the other two waterways lack such a history.
Neil Woodworth, ADK’s executive director, worked with Caffry for nearly a decade on the Adirondack League Club case, fighting for the right of paddlers to travel on navigable waterways.
“John has excellent knowledge of the law,” Woodworth said. “The two of us looked at every single precedent not only in New York, but across the country.”
In that case, the Adirondack League Club sued the Sierra Club and five paddlers who went down the South Branch of the Moose River in the western Adirondacks. It was settled before trial. The settlement allows paddlers to use the river during much of the year if water levels are high enough.
Are Adirondack Explorer subscribers (which includes me) helping to pay for this?
I for one don’t want to have any part in an attempt to open every marsh, brook or other wetland in the State of New York stretching between two roads or other public access points to unrestricted recreational travel, including motorized use – http://www.youtube.com/watch?v=j5q0XPMqruc
I’m sure many other, if not most subscribers would have similar reservations.
Please let this Explorer subscriber know where to donate money for legal funds.
I for one want to be part of an attempt to stop every person with a waterfront property from stopping reasonable use of waterways. Otherwise a single person on any waterway could make it impassable and thus the park virtually unusable.
“Otherwise a single person on any waterway could make it impassable and thus the park virtually unusable.”
You must be kidding? Is the park “unusable” now?
“You must be kidding? Is the park “unusable” now?”
No, Paul, because every person with waterfront property isn’t declaring the water they border “private” and suing each person that crosses it.
Not sure why you are being sarcastic… that is exactly what this person is doing.
This only applies to land where the “bed and banks” of the water body are privately owned.
That is a very tiny portion of Adirondack waterfront and land.
As a subscriber to the Adirondack Explorer I certainly DO NOT want to pay any part of the defense costs for the criminal activities of Phil.
I will plan to discontinue my subscription.
I would like to know where to donate to the Brandeth Lake Assn. to help with their legal action.
Paddling these “disputed” waterways was never necessary for the “story”. This was about sparking just this type of action.
Brian Mann in another story also said that he felt that he “had” to paddle this waterway to get the story. It makes no sense to me.
Why didn’t the Explorer (if they support this) just sue the landowners for what they considered to be illegal posting??
Landowner: His behavior was not criminal: New York State declared the Posted signs illegal. If you want to donate to a rich family trying to bully an individual and the public in general, why not go all the way and send your money to Goldman Sachs?
Paul: my understanding is that in fact many property deeds in the Adirondacks do include “bed and banks” provisions, but of course most people don’t have the desire and/or ruthlessness to go suing people to leverage what is really a relic of the Depression era.
“Why didn’t the Explorer (if they support this) just sue the landowners for what they considered to be illegal posting??”
Where would they get the money to do that?
only the state can own waterways, even retired senator Barklay found this out on the Salmon River.
“Where would they get the money to do that?”
I suppose they could use the same money they are going to use to pay this lawyer? From some of these comments it sounds like they have some financial support for a case.
“but of course most people don’t have the desire and/or ruthlessness to go suing people to leverage what is really a relic of the Depression era.”
Cody, I thought that you said that everyone was going to try and shut down these waterways?
Which is it?
Dean, if you own ALL the pond you own the pond. If the public can’t legally access a NIF waterway they can’t go on it.
Dean, 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.”
Regarding funding, by all means I hope those who want to support Phil’s cause do. While I don’t support this cause (obviously), and don’t want my subscription fees put towards it, that doesn’t mean that I want to see Phil and the Adirondack Explorer financially harmed by this.
Phil, I really think you should let us know whether or not general Adirondack Explorer funds are being used for this.
As I understand it this group – “Friends of Thayer Lake” owns the land in question. The Brandeth family retained the “recreational rights” after the sale. I remember reading an Adirondack Life article about this transaction. The Friend’s group is composed of a number of individuals including (I think) a past APA commissioner. I think they have a pretty good amount of insight into the state’s “position” in this case, or at least they have been privy to the DEC discussions on the subject. It will be interesting to see how the DEC defends the states position here. They may have to explain why they view this stream as open for unrestricted navigation when they don’t see waterways like the South Branch of the Moose river as NIF. The state was a party in that suit and settled in lieu of a court decision. Also, why did the DEC build landings and a carry trail on NYS land around this section of Shingle Shanty Brook that they now say was unnecessary? Their position has hardly been unwavering.