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18 Responses

  1. Eva M Barham says:

    How may I access a copy of the actual ruling ASAP? Thanks!

  2. Greg M says:

    Reading the judgement was an interesting read. I agree that the use of the area by the owners should not be considered, kind of like self-incrimination. The clearing done also means the passageway is not in its virgin state, and the virgin state should be considered, not any improvements.

    On the other hand, the existence of the current portage is irrelevant. The passage is either navigable-in-fact or not — the existence of a relatively new portage should not change that. If the portage dates back 100+ years, and was the primarily used route, that would be different. Also, usage within a remote area should be relative to the remote area. The local ponds only supports several ?hundred? people per year, then the test should be to this set of people, not large cities/villages. It’s also hard to estimate people like me who have been waiting for this all to shake out before entering.

  3. Tim-Brunswick says:

    Great….finally Phil Brown gets what he deserves. Literally advocating that people should violate the rights of the landowners who maintain and actually pay the taxes for their property. Perhaps if he had deigned to “ask for permission” to paddle through the posted property it would have alleviated years of expense to all parties!

    Instead he chose to publicly flaunt his illegal passage through the property and “finally” got what he deserved!!

    Thank you

  4. Susan Weber says:

    How sad. I wonder just how much disruption canoers and kayakers would cause to the property owners. The property rights movement in this country seems to be running amok. What ever happened to the concept of the greater public good? Sad.

  5. rum says:

    property rights actually won? shocked I tellya, shocked!

  6. Chris says:

    Disappointing, to say the least. And does this set precedent for many others?

    What does this mean for fishing rights?

  7. Isn’t this the DEC policy below. Does the ruling mean that recreational use alone is no longer valid?

    —- Waterways subject to the public right of navigation may be navigated for any commercial or recreational purpose, and attempts by landowners to interfere with the public’s right to navigate violates the State’s trust interest in the waterway, i.e., the owner of the navigable waterway has no right to close it to the public or otherwise harass the public

  8. Eric says:

    Enough already! I’m an avid solo canoeist who loves the wild places but we’ve had our time in court. Harassing land owners through endless litigation is distracting and counter productive. The decision’s been made, let’s move on and concentrate on taking care of what we have.

    • Scott says:

      Eric, I would have to disagree, as this impacts the definition of navigable-in-fact and certainly is worth a continued fight over. If narrowly defined recreational use has no impact on whether or not a waterway is navigable-in-fact and could have serious impacts on public access to waterways.

      Please see further explanation from American Whitewater – who obviously fall on the side of believing recreational use should define navigable-in-fact –

      “New York Courts have interpreted the statute in a manner consistent with the traditional common law rule: in order to be navigable-in-fact, a river must provide practical utility to the public as a means of transportation. Traditionally, transportation was defined narrowly, referring to a body of water’s capacity for transporting commercial goods or materials to market. However, as social and economic conditions have evolved in New York, courts have broadened their interpretation of what activities satisfy the definition of transportation.3) According to the Court of Appeals in Adirondack League Club, Inc. v. Sierra Club, the “paramount concern is the capacity of the river to transport, whether for trade or travel.”4)

      Adirondack League Club, Inc. v. Sierra Club, decided in 1998 by the New York Court of Appeals, remains the most important decision on this subject. In determining whether kayakers and canoers on the South Branch of the Moose River had trespassed on a riparian owner’s property, the court held that recreational use is part of the navigability analysis. Although the Court did not make a final judgment on whether the Moose River itself was navigable, the highest court in New York did take an important step in expanding the definition of what waterways qualify as navigable-in-fact.

      In Adirondack League Club, however, the court did not discuss how much weight should be given to recreational use within the overall navigability test. Therefore, the issue remains somewhat open to debate. Courts have generally concluded that although the ability to sustain recreational use is a relevant factor when determining navigability, it is not the only or most important factor. Capacity to support transportation remains the paramount inquiry. In 1995, a New York State appeals court found that a pond was not navigable because there was no evidence of any historical use of the pond for commercial purposes, and the evidence of small boat and canoe recreational use on the pond was insufficient “to demonstrate that the pond has any capacity or suitability for commercial transportation.”5). ”

      from – https://www.americanwhitewater.org/content/Wiki/access:ny

      • David G says:

        Historical use? History evolves into the future. Paddling has become a very popular sport in recent years and so recent history should also be considered.

    • john says:

      The landowners sued. They brought the endless litigation. I am sure that you agreed that the “decision has been made” and to “move on” when the judge ruled the opposite way in an earlier decision. Or, maybe the appeal by the landowners that led to this decision, was just as valid as the forthcoming appeal by Brown and the DEC.

  9. Rich Stevens says:

    If a waterway is navigable and a commercial outfitter were to lead paid trips over it, would that not constitute commercial use and transportation?

  10. Randall Wint says:

    I hope they appeal this!! This should be decided by a group of people- not one judge… seems to me that any intelligent person would see the commercial use of being able to navigate these waters– seems like it would attract people to the area- tourism/nature study, etc.
    The idea that the landowners own the water, or the right to use that water– that comes off of neighbors properties, travels over their property, and then over other peoples properties is so ridiculous. Change needs to be made in these laws. Good luck!!!!!!

  11. Randy Fredlund says:

    “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.”” – Clearly, the judge has never portaged.

  12. Frank says:

    This will be appealed. DEC intervened to protect the public’s right of navigation. If DEC quits now, other property owners may feel justified in erecting new barricades on their streams. DEC also has a free appellate lawyer in the form of the AG’s office, so the expense of further litigation is not a significant factor. The plaintiffs also might want to appeal; although their claimed property rights were vindicated, the court denied money damages despite rejecting the paddlers’ defense to the claim of trespassing. The court’s conclusion that the relative ease of traveling between two state-owned bodies of water via the disputed waterway was not enough to establish navigability-in-fact is troublesome, but understandable in view of the lack of guidance as to just how much of a factor is recreational use. The state’s higher courts will have to resolve this.

  13. David G says:

    Historical use? History evolves into the future. Paddling has become a very popular sport in recent years and so recent history should also be considered.

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