Judge rules that ‘Explorer’ editor did not trespass when he paddled through private property, but the landowners plan to appeal.
By Kenneth Aaron
The owners of a scenic, remote Adirondack waterway plan to appeal a judge’s decision declaring that the route is open to paddlers under the common-law public right of navigation.
In February, State Supreme Court Justice Richard T. Aulisi said the Friends of Thayer Lake and the Brandreth Park Association had created a public nuisance by posting no-trespassing signs and stringing cables across the contested waterway.
The judge dismissed all the complaints against Adirondack Explorer Editor Phil Brown, who was sued after paddling the waterway in May 2009.
Dennis Phillips, the Glens Falls attorney who represents the landowners, declined to explain the rationale behind the appeal. However, he has argued in the past that a waterway must have a substantial history of commercial use to be open to the public under the common law.
If Aulisi’s ruling is upheld, it will further establish the rights of recreational paddlers to make their way down even small streams if they can enter and exit them legally, according to Neil Woodworth, executive director of the Adirondack Mountain Club and an attorney in a landmark case that provided the basis for the latest ruling.
“A fair number of paddlers will begin to try waterways where there had been posted signs and barbed wire and such,” Woodworth predicted.
Officials in the Adirondack Landowners Association declined to comment on the decision.
The appeal extends a legal battle begun in November 2010 when the landowners filed a trespassing suit against the Explorer’s editor.
In May 2009, Brown took a two-day canoe trip from Little Tupper Lake to Lake Lila. Most of it was in the state-owned William C. Whitney Wilderness, but he also paddled through the plaintiffs’ property on Mud Pond, Mud Pond Outlet, and Shingle Shanty Brook. This portion of the trip included a short carry around rapids on Mud Pond Outlet.
Although the state had built a 0.75-mile trail across public land to avoid the privately owned waters, Brown believed the public had a legal right to ply them and made the hour-long trip down the stretch to research an article that appeared in the Explorer in 2009.
“I wasn’t setting out to get sued,” Brown said after Aulisi issued his ruling. “I had done my research and had come to the conclusion that this waterway was likely navigable and open to the public under the common law.”
Rather than being spelled out in statute books, the common-law right of public navigation evolved through the courts, with roots dating at least as far back as medieval England. It was the law of New York before it became a state.
That common-law right is also subject to interpretation, and cases over the years have tested the navigability of particular routes. Paddling advocates have repeatedly called for the state to pass a law defining navigability or create a list of waterways that are open to the public. Although those efforts failed, Charles Morrison, who co-authored a booklet on navigation rights after retiring from the state, said the Shingle Shanty case highlights the gains paddlers have made.
In the late 1970s, Paul Jamieson, the author of Adirondack Canoe Waters: North Flow, wrote the state Department of Environmental Conservation, where Morrison worked. “He asked us whether something called ‘a public right of navigation’ existed, a brief reference that he occasionally saw mentioned while doing his research,” Morrison recalled. “I think he would be very pleased to know how much has been done by so many people working together over the years.”
In a landmark decision, the state’s highest court, the Court of Appeals, ruled in 1998 that recreational use can be considered when evaluating whether a waterway is “navigable-in-fact”—a legal term referring to waterways that are both navigable and open to the public. In that case, the Adirondack League Club sued the Sierra Club and five paddlers who traveled down the South Branch of the Moose River.
Much of the debate in the Shingle Shanty case is over what the Court of Appeals meant in the earlier decision. Phillips argued that recreational use alone is not enough to trigger the common-law right and that a waterway must have a history of commercial use as well. He said the pond and streams paddled by Brown were too small to support robust commercial traffic and should remain off-limits to the public.
Aulisi, though, leaned heavily on that Moose River case for guidance. The Shingle Shanty route, he ruled, has “practical utility for travel or transport,” the standard established in the earlier case.
“It doesn’t really change the law from what the Court of Appeals said in the Adirondack League Club case,” said John Humbach, a law professor at Pace University who co-wrote the booklet with Morrison. “But it does provide a reinforcement. So people who might otherwise have thought ‘my stream is too small’ should realize from this case that if people find your stream of practical utility for transportation in boats, it’s not too small.”
Both the Court of Appeals and Aulisi noted that these days most waterways in the state are used for recreation rather than commerce. Given the importance of tourism in the Adirondacks, Humbach asserts that recreation is commerce. “It’s hard to distinguish the two,” he said.
In his decision, Aulisi noted that Dave Cilley, the owner of St. Regis Canoe Outfitters, said in an affidavit that he will guide clients down the contested waterway if it is open to the public. The judge also cited evidence that the waterway has been used for transporting goods, including building supplies and furs—evidence that suggests the waterway has the capacity for commercial as well as recreational use.
“Defendants have established that the waterway has a practical utility for travel and the transport of some materials,” Aulisi wrote.
At the request of DEC, State Attorney General Eric Schneiderman sided with Brown in the case. After Aulisi’s ruling, DEC applauded the decision. “It is important that individuals are able to access and enjoy New York’s vast natural resources,” a department spokeswoman said in a prepared statement. “However, the case does not mean that every waterway in the Adirondacks is now open to paddlers, nor does it mean that no-trespassing signs on waterways can now be routinely ignored.”
Nevertheless, Brown’s lawyer, John Caffry of Glens Falls, said other landowners may think twice before blocking access. “Hopefully, it will discourage other property owners from trying to close off streams through their property that are navigable. So people don’t have to go to court,” Caffry said.
The impact of the case remains to be seen. However, a decision by an appellate court would carry greater weight. Aulisi’s ruling is not binding on other courts, but an Appellate Division ruling would be binding on all lower courts within the Third Judicial Department. That territory extends as far south as Sullivan County and includes most of the Adirondacks and much of the Southern Tier. It also would be influential in other parts of the state.
One thing’s for sure: under Aulisi’s decision, the public has the right to paddle the route traveled by Brown. Unless the plaintiffs obtain a stay of the ruling, Caffry said, the waterway will be open this spring. Trail cameras put up by the landowners revealed that some people were using the route while the case was being litigated.
“I can understand why they would want to keep their land private,” Brown said. “I can empathize. But legally I had the right to go down that waterway, and I think the public does, and I think the judge agrees.” ■