Joining the fight

As navigation-rights case heads to the state’s Court of Appeals, both sides get help from interested parties.

By Kenneth Aaron

For five years, a group of Adirondack landowners has engaged in a legal battle with the editor of the Adirondack Explorer and the state Department of Environmental Conservation over navigational rights on a remote waterway in the William C. Whitney Wilderness. Now both sides have reinforcements.

In December, lawyers representing environmental, recreational, and property-rights groups were preparing to file friend-of-the-court briefs (also known as amicus curiae briefs) in the case. Because the dispute has reached the Court of Appeals, the state’s highest tribunal, the outcome could have widespread consequences for landowners and paddlers.

The case stems from a two-day trip that Explorer Editor Phil Brown took in May 2009, starting at Little Tupper Lake and ending at Lake Lila. En route, he paddled about two miles through private land—on Mud Pond, Mud Pond’s outlet, and part of Shingle Shanty Brook. The landowners, the Brandreth Park Association and Friends of Thayer Lake, sued him for trespass the following year.

In February 2013, State Supreme Court Justice Richard Aulisi threw out the lawsuit and ruled that the landowners had created a public nuisance by stretching a cable across Shingle Shanty Brook. In January 2015, the Appellate Division of State Supreme Court upheld Aulisi’s decision, but two judges dissented, setting the stage for the Court of Appeals showdown. The earliest the panel would hear oral arguments is late March.

At issue is whether the state’s common law gives the public the right to paddle the Mud Pond Waterway, as it has been referred to in court papers. The court’s decision could apply to similar waterways throughout the state.

The Adirondack Mountain Club (ADK) and Environmental Advocates of New York were planning to file an amicus brief on behalf of paddlers’ rights. The Adirondack Landowners Association, New York Farm Bureau, and Property Rights Foundation of America were planning to file a brief on the other side.

The main litigants—Brown, DEC, the Brandreth Park Association, and Friends of Thayer Lake—submitted briefs to the Court of Appeals last year.

Dennis Phillips, the lawyer for the landowners, contends that a waterway must have a history of or at least a capacity for commercial traffic for the common-law right of navigation to apply. He contends that the Mud Pond Waterway is too small and remote for commercial use.

Brown’s lawyer, John Caffry, and the state argue that a waterway is “navigable-in-fact”—that is, open to the public—if it is useful to the public for trade or travel. They contend that Mud Pond Waterway has practical utility for both.

The amicus briefs are expected to shore up and amplify these arguments.

“It’s big for the Adirondack Mountain Club,” Neil Woodworth, executive director of the club, said of the legal case. The club advocates for paddlers, hikers, and other recreational users of the Adirondack Park.

Woodworth, who is an attorney, said his brief—to be filed jointly with Environmental Advocates—will address issues raised by the two judges who dissented from the Appellate Division decision. The dissenters had agreed with Phillips that the waterway is too small and remote to be of practical utility to the public.

“To conclude that such a remote and narrow stream may be navigable-in-fact … reduces the navigability test to an improper one of mere access and floatability—i.e., as long as any member of the public can successfully travel by canoe on the stream in question, the stream has capacity and is navigable,” the dissenting judges wrote.

Woodworth contends that the remoteness of a stream is immaterial. “If the only way you can qualify [is] if a waterway is close to roads and population centers and useful for the carriage of goods in the modern sense, hundreds of waterways across New York State would be closed,” he said.

In fact, Caffry says the waterway is not all that remote. He canoed from Lake Lila to Lilypad Pond, utilizing the Mud Pond Waterway, in October 2009. Both Lila and Lilypad are part of the state-owned Whitney Wilderness. The round trip, including a hike to Little Salmon Lake, took several hours. “The paddling was easy, going both upstream and downstream,” Caffry said in an affidavit filed in the case. “The water was always at least two feet deep.”

Brown’s trip was longer because he started at Little Tupper Lake and visited a number of ponds before reaching Lilypad Pond. By paddling down the Mud Pond Waterway, he avoided a 0.8-mile carry between Lilypad Pond and the publicly owned stretch of Shingle Shanty Brook. The carry trail, built by DEC, lies in the Whitney Wilderness.

The Brandreth family has owned the land or the recreational rights to it since 1851. When the state purchased tracts on both ends of the Mud Pond Waterway, in the late twentieth century, the waterway became accessible to the public.

Even so, the three appellate justices who sided with Brown expressed reservations about opening up to the public a stream that had been private for more than a century, saying the decision “may destabilize long-established expectations as to the nature of private ownership.”

Mark Miller, managing attorney for the Pacific Legal Foundation’s Atlantic Center, hopes the Court of Appeals views Brown as a trespasser. “Society relies on stability and the law. And private-property rights should be something you can count on,” he said. More than 150 years since Benjamin Brandreth bought the property, “the courts shouldn’t simply decide that should no longer be true,” he added.

Miller, who planned to file an amicus brief on behalf of the Farm Bureau and the Property Rights Foundation, argues that the state has an obligation to compensate the Brandreths if it takes away some of their property rights.

Brown and the state argue that the taking argument is off the table, because Phillips did not bring it up in the original lawsuit. “They never preserved those issues,” Caffry said. “They never raised them in the lower court, and this is not part of this lawsuit.”

Phillips did not respond to requests for comment, but in legal papers he contends that the issue is properly before the court. Of the Appellate Division decision, he asserts: “If this is not a judicial taking, nothing is, and the Plaintiffs should not be foreclosed from raising it.”

Miller says the courts got other things wrong. He noted that Brown made a five-hundred-foot carry on Brandreth land to avoid rapids along the Mud Pond outlet. That portage, he said, is long enough to make the route non-navigable. And, like Phillips, he contends that the route is so narrow and so shallow that it can’t support commerce.

“If the courts are going to say that we no longer have a commercial-use component, that will be a new holding,” Miller said. “That will be a new concept in New York law.”

The lower courts held that the Brandreths’ longstanding use of the waterway to ferry supplies and furs indicates that it has a history of and capacity for commercial use.

In any event, Woodworth maintains that a 1998 Court of Appeals decision, involving paddlers on the South Branch of the Moose River, found that commercial use isn’t necessary to establish navigability-in-fact.

“Today, in the latter part of the twentieth century and twenty-first century, the most common use of waterways across the state is for recreational travel,” he said. “They’re not using it for transportation of goods.”

Phillips disagrees with Woodworth’s interpretation of the Moose River decision, insisting that commercial use has always been and remains an essential element of the navigability test.

In a sense, then, the Court of Appeals is being asked to clarify what it meant in 1998.

 

Curious clause in 2007 deed

Inside the haystack of legal papers generated by the five-year trespassing case against Explorer Editor Phil Brown is a curious clause in a deed to the property he paddled through.

When the Adirondack Nature Conservancy sold the land to the Friends of Thayer Lake in 2007, it included a clause in the deed that, to a layperson, may seem to give the public the right to paddle the very route that Brown paddled in 2009.

The clause states that the property is “subject also to the right of the public to navigate the surface waters of Lilypad Pond, Mud Pond, the outlet leading from Mud Pond to its confluence with Shingle Shanty Stream, and Shingle Shanty Stream northeasterly from its confluence with the Mud Pond outlet to the property line between the lands herein conveyed and lands owned by the State of New York.”

Brown’s lawyer, John Caffry, argued in legal papers in 2014 that by accepting the deed, the landowners were legally required to open the waters to the public.

The Appellate Division of State Supreme Court rejected this argument, though it agreed for other reasons that the waterway should be open. In a footnote to its decision, the court said the clause was not binding “as no private ownership interests affecting such rights had been acquired or could be conveyed.”

In other words, the public right of navigation either exists or it does not, irrespective of whatever the deed might say.

The Nature Conservancy bought the tract from International Paper, but the Brandreth Park Association owned the recreational rights, and it still does. Friends of Thayer Lake, a subset of the extended Brandreth family, owns the rest of the property rights. Thus, both entities are plaintiffs in the lawsuit against Brown.

The public right of navigation, however, is separate from private recreational rights. If the waterway is indeed “navigable-in-fact,” the public right is not affected by the recreational rights held by the Brandreths.

By paddling the waterway, travelers avoid a 0.8-mile carry across state land between Shingle Shanty Brook and Lilypad Pond. Connie Prickett, a spokeswoman for the Nature Conservancy, said the organization put the clause in the deed “to leave the door open for [the state] to establish a publicly accessible water route across the ponds and outlets as described in the deed.”