By MICHAEL VIRTANEN
A state judge ruled Thursday that uninvited paddlers have no right to canoe the 1.8-mile Mud Pond Waterway in privately owned Brandreth Park in a remote stretch of the northwestern Adirondacks.
State Supreme Court Justice Richard Aulisi, after hearing three weeks of trial testimony this summer, reversed his own initial ruling in the lawsuit brought by the landowners who want strangers kept off their lands and waters.
The case had wound its way up to New York’s Court of Appeals, which sent it back down for a full trial to answer specific questions including commercial utility and accessibility.
Aulisi wrote that waterways through private land “must provide practical utility to the public as a means for transportation, whether for trade or travel,” part of the legal test for being determined “navigable in fact” under New York’s common law, which gives the public the right to use them.
He concluded Thursday that Mud Pond, its outlet and parts of Shingle Shanty Brook and Lilypad Pond have little historical or prospective commercial use and don’t meet that test.
They are part of the so-called Lila Traverse, a roughly 17-mile canoe trip between publicly owned lands and waters in the Whitney Wilderness.
“After hearing all the proof and reviewing the record before it, this court opines that the evidence establishes that the actual and potential use of the pond is limited to recreation,” Aulisi wrote. “Recreational use alone is insufficient to deem a waterway navigable-in-fact, and the record reveals that only a marginal segment of the general population would benefit from using the disputed waterway for recreational travel.”
The land is owned and controlled by the Friends of Thayer Lake LLC and affiliated Brandreth Park Association.
The defendant is former Adirondack Explorer editor Phil Brown, who in 2009 wrote an article for the magazine about his trip on the traverse including the disputed Mud Pond Waterway. He was accused by the landowners of trespassing, though the ruling against him makes no such finding.
“I am disappointed in the judge’s decision,” Brown said, who declined to say whether he would appeal. “As many witnesses testified at trial, the waterway in dispute can be easily traveled by canoe or kayak, providing a paddling route between two parts of the public forest preserve. We are weighing our next step. I want to thank all the paddlers and Explorer readers who have supported us over the years.”
Explorer publisher Tracy Ormsbee could not immediately say whether the nonprofit magazine would support an appeal on behalf of its former editor. “It’s been a long process and, of course, we’re disappointed by the judge’s decision,” she said. “The Explorer board of directors and I will be considering our options.”
New York’s Department of Environmental Conservation subsequently sided with Brown. The DEC concluded the stretch through Brandreth land was rightfully open to the public. The department provided a statement saying it is “reviewing this decision and considering all legal options.”
Brandreth Park members argued that there’s a state-established portage of less than a mile that paddlers can instead take to avoid their land entirely. A lawyer representing the landowners, Dennis J. Phillips, issued a written statement praising the court for recognizing “that recreational paddlers need not trespass on privately owned lands to enjoy the backcountry experience provided by the State of New York’s William C. Whitney Wilderness Area.”
“There is ample room for public enjoyment of the Adirondacks without encroaching on private property owners and their enjoyment,” Phillips wrote. “We are pleased that, after nine years of litigation, this matter is resolved.”
Aulisi wrote that evidence showed the traverse is 16.58 miles with the 0.8-mile portage, and it’s 17.86 miles with paddling the disputed waterway, which is only slightly faster. He noted that the state carry trail is the “sole, primary route available to members of the public at large” and that he disagreed with Brown’s characterization of it as an “alternate detour route.”
The landowners sued the DEC separately, claiming improper taking of their property rights. The department participated in Brown’s trial.
In 2010, after two senior department officials canoed the waterway at the invitation of the landowners, the DEC said its settlement attempt failed and advised Brandreth to take down its “No Trespassing” signs and remove its cameras, calling its attempts to keep the public off the waterway “unlawful.”
In 2013, Aulisi dismissed the landowners’ suit based on legal arguments in the case. The mid-level Appellate Division upheld that dismissal but those justices were split 3-2.
In Thursday’s ruling, Aulisi several times cited the conclusions of those two dissenting justices.
He rejected the landowners’ request for compensatory or punitive damages but awarded them some legal costs and directed they submit a proposed judgment.