By MIKE LYNCH
A 1.8-mile stretch of waterway through privately owned Brandreth Park on the edge of the William C. Whitney Wilderness area will remain off-limits to the paddling public.
Former Adirondack Explorer Editor Phil Brown and the state of New York decided against pursuing an appeal last week regarding a December 2018 decision in favor of the private landowners who prohibited public access. The owners had sued to keep closed waters that Brown argued were navigable and therefore open to passing boaters under state law. The stretch of private land and water lies along a 17-mile canoe route between public access points in the western Adirondacks, and recreational users are asked to carry their canoes around it.
Brown had until Oct. 28 to file paperwork (called “perfecting the appeal”) and the state had until Nov. 1. The Department of Environmental Conservation sent the Explorer a statement on Monday saying it had “carefully reviewed the court’s decision” and consulted with the attorney general’s office before declining to appeal.
“By not perfecting the case it will end after 10 years and will not go on for another one to three years. That’s always good news,” Brandreth Park Association attorney Dennis Phillips said last week.
“The piece of Adirondack wilderness known as Brandreth Park has always resonated strongly and deeply in our family history, and we have enthusiastically embraced our ongoing stewardship responsibilities to protect and preserve it for 168 years,” Brandreth Park Association President Christopher Potter said in a written statement. “Ten years ago, an individual intentionally trespassed on our property (and publicized his actions) in an attempt to establish a legal basis for public access. We responded by filing a lawsuit to protect our historic and constitutional rights to privacy, and we have now achieved that goal.”
Brown’s attorney, John Caffry, declined to say why Brown decided against an appeal, but said “for all intents and purposes” the case is over. Failing to perfect an appeal means it is automatically dismissed, though parties may ask to reinstate an appeal for up to a year if they can show cause.
“We’re disappointed with the judge’s decision,” Brown said. “We think he’s wrong, but it didn’t go our way and that’s that.”
The debate over the navigation rights of Mud Pond, Mud Pond Outlet and Shingle Shanty Brook began in May 2009 when Brown paddled from Lilypad Pond to Lake Lila in the William C. Whitney Wilderness. In doing so, he avoided a 0.8-mile portage from Lilypad to the publicly owned part of Shingle Shanty Brook, which flows into Lake Lila.
He later wrote about the trip in a July 2009 article. Brown stated that his research led him to believe that the public has “the right to paddle these waterways.” He wrote that “the Explorer’s intent is to set forth facts—in words and photographs—that may clarify the legal situation. In the end, it’s up to state authorities to determine whether or not Mud Pond and its outlet are navigable waters open to the public. Until that time, paddlers may want to stick to the waterways and trails in the state-owned Forest Preserve.”
Instead the Friends of Thayer Lake, which owns the land, and the affiliated Brandreth Park Association, which owns certain recreational rights on the tract, filed a lawsuit in November 2010 in state Supreme Court in Hamilton County claiming that Brown committed civil trespass. The state later intervened on behalf of Brown in the case, saying that the waters are navigable-in-fact and should be open to the public.
Several early decisions went in favor of Brown, but in December 2018, state Supreme Court Justice Richard Aulisi, after a trial, reversed his own initial ruling in the lawsuit brought by the landowners and ruled in their favor.
The judge wrote that in order to be “navigable-in-fact” and therefore open to public use, a waterway “must provide practical utility to the public as a means for transportation, whether for trade or travel.” Mud Pond, its outlet and parts of Shingle Shanty Brook and Lilypad Pond have seen little commercial use and don’t meet the test, he determined.
“Recreational use alone is insufficient to deem a waterway navigable-in-fact,” Aulisi wrote, “and the record reveals that only a marginal segment of the general population would benefit from using the disputed waterway for recreational travel.”
Adirondack Mountain Club Executive Director Neil Woodworth said the case wouldn’t affect the law that defines navigability in New York and wasn’t precedent-setting. “What was determined in the lawsuit was really very specific to the waterway in question,” he said.
Caffry agreed with Woodworth’s assessment.
“The Judge Aulisi decision did not really create any precedents. It’s one stream decided upon the particular facts of that case,” Caffry said.