Judge weighs canoer’s fate

Lawyers deliver arguments in trespassing lawsuit filed against Adirondack Explorer editor.

By Kenneth Aaron

Was Adirondack Explorer Editor Phil Brown trespassing in 2009 when he paddled through private land abutting state-owned wilderness? Or did he have a right to be there because the waters he canoed are navigable and provide a useful link between parcels of public land?

The question rests with State Supreme Court Justice Richard T. Aulisi, who heard arguments this past November in the Fulton County Courthouse, the oldest courthouse in the state.

The trespassing suit against Brown was filed in 2010 by the Friends of Thayer Lake and the Brandreth Park Association. His offense, as they see it: heading down a privately owned two-mile waterway comprising Mud Pond, Mud Pond Outlet, and a portion of Shingle Shanty Brook. They want the judge to declare that the waterway is not open to the public.

Brown, backed by the state attorney general, asserts that the public can use the waterway under the common-law right of navigation. At issue is whether the pond and streams are “navigable-in-fact,” a legal term applied to navigable waterways that are open to the public.

The landowners’ lawyer, Dennis Phillips of Glens Falls, argued that opening the waters to the public would be tantamount to stripping private landowners of their rights.

Phillips holds that privately owned waterways are open to the public only if they are useful for commerce. And this waterway, he argued, is barely floatable by anything but lightweight craft. In court, Phillips showed still images from a video taken last summer (after a drought) to bolster his argument that Mud Pond Outlet is unsuitable for commerce:  the stream appears narrow, shallow, and obstructed in places by branches and a beaver dam.

“This court is being asked to declare that this is a highway for commerce,” Phillips said. “That a waterway of this nature has practical utility for transport, whether for trade or for travel.”

Brown’s attorney, John Caffry of Glens Falls, and Assistant Attorney General Kevin Donovan contended that Phillips’ view of the law is incorrect. Caffry argued that so long as the waters are useful for either trade or travel—not necessarily both—Brown and others have a right to ply them. Caffry said Phillips’ view would “turn back the clock to a more restrictive view of the test.”

If older cases about navigation rights hinged on commerce, Caffry said, that’s because commercial traffic once dominated waterways. Logging was a major part of the Adirondack economy in the nineteenth century, and making sure that timber could be floated down rivers was critical. “These days, almost all travel on rivers is of a recreational nature, and so that’s the type of cases the courts have seen,” Caffry told Aulisi.

Caffry was one of the lawyers for the Adirondack Mountain Club, which intervened on the side of five paddlers who ventured down the South Branch of the Moose River through Adirondack League Club property in 1990. That trespassing case went all the way to the Court of Appeals, the state’s highest tribunal, and was eventually settled out of court. The agreement allows paddlers to go down the South Branch if water levels are above a certain level.

Essentially, Aulisi is being asked to interpret what the Court of Appeals meant in its 1998 decision in the Moose River case. According to Caffry and Donovan, the court  cited “practical utility for trade or travel” as the test for deciding whether a waterway is open to the public—and the lawyers emphasized the importance of the conjunction or. Phillips, however, insisted the Court of Appeals merely said that evidence of recreational use can be considered in deciding whether a waterway is navigable-in-fact. In his view, the court left the commercial-use standard intact.

The distinction could be crucial, for at one point Phillips said of the Mud Pond-Shingle Shanty waterway: “I would say it’s navigable for recreational purposes, but not for commercial purposes.”

Even though Caffry and Donovan consider commercial use unnecessary, they pointed to evidence of that activity in the past on Mud Pond, its outlet, and Shingle Shanty. Furs had been ferried over the waters, and building materials had been brought in via boat as well.

Aulisi probed Phillips’s argument that mere recreation is not enough to declare a waterway accessible. “What about the notion that tourism is commerce?” he asked.

Phillips agreed that tourism and commerce are partners, but since the state has gone to great lengths to acquire land and provide recreational opportunities to paddlers, there is no need for private landowners to do so as well. “I do not think recreation by itself, somebody having fun, or having an experience, is enough to trigger the navigability-in-fact exception to the idea that a person’s land is his domain,” Phillips said.

While Phillips argued that the waters were too inconsequential to support meaningful commercial traffic, Caffry urged the judge to regard them as part of a larger waterway that flows from Salmon Lake to Lake Lila (whose outlet, the Beaver River, flows to the Black River). It took Brown only an hour to paddle the disputed stretch, but he did so as part of a two-day canoe trip from Little Tupper Lake to Lake Lila.

The public right of navigation is rooted in English common law that predates the birth of the United States. Unlike a statute, it is not written in law books; rather, it has evolved through judges’ decisions over the years. For paddlers and landowners alike, the law can seem murky.

Brown himself wrote after his trip that the law poses something of a catch-22: “You can’t paddle a waterway unless it’s navigable, and you can’t prove it’s navigable unless you paddle it.”

He did. And got sued.

Two decades ago, the state Department of Environmental Conservation planned to clarify the law through regulations or statute. As part of that effort, the department put together a tentative list of rivers and streams that were putatively navigable. Shingle Shanty (though not Mud Pond or its outlet) was on the list. DEC dropped the initiative after the Moose River lawsuit was filed.

After the oral arguments in November, Phillips said the Shingle Shanty case could be a landmark: Aulisi’s ruling may determine whether the capacity for recreational travel alone is enough to justify declaring a waterway open to the public.

Court observers said it could be months before Aulisi issues a decision. ■