Brown, state preserve right to appeal in 10-year paddling case

By Michael Virtanen

Attorneys for New York’s Department of Environmental Conservation and former Adirondack Explorer Editor Phil Brown have filed notices of appeal of a judge’s ruling that uninvited paddlers have no right to canoe the 1.8-mile Mud Pond Waterway in privately owned Brandreth Park in the northwestern Adirondacks.

State Supreme Court Justice Richard Aulisi, after a trial last year, reversed his own initial ruling in the 10-year-old lawsuit brought by the landowners who want strangers kept off their lands and waters.

This week’s filings preserve for six months the defendants’ rights to file an actual appeal, which would be due by late October.

“Right now you just get it filed and figure out if you’re going to perfect (an appeal) or not,” said attorney John Caffry, who represents Brown and the magazine.

The DEC confirmed that its appeal notice was filed Wednesday and that the agency “is considering all options regarding this matter.”

The case originally 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 of the waterway.

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.

The judge concluded 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.

“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.

“New York State is poised to pursue more unnecessary taxpayer-financed litigation,” the landowners said in a statement Wednesday. “If the actual appeal is filed, the family who have owned, maintained and protected this property for 168 years will continue to fight this taxpayer-funded effort to confiscate their private property.”

Brown in 2009 wrote an article for the magazine about his trip on the traverse including the disputed and remote Mud Pond Waterway. He was accused by the landowners of trespassing, though the ruling against him made no such finding.

The DEC sided with Brown. It concluded the stretch through Brandreth land was rightfully open to the public.

The department has maintained on its website legal guidance on waterway rights rooted in British common law that generally supports public rights on waterways through private land with generally adequate water volume, as well as some portages, except where a court rules that a specific stream does not meet the legal test to be judged navigable-in-fact.

“If a waterway satisfies all the criteria for being navigable-in-fact, it is open to public navigation for any purpose, whether commercial or recreational,” according to DEC general counsel’s guidance posted in 2011. That program policy also advises how to handle landowner complaints. The DEC posting cites prior rulings from New York’s highest court, the Court of Appeals.

The DEC said Wednesday that policy has not changed.

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.

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.

In 2013, Aulisi initially 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.

The state’s highest court, the Court of Appeals, declined to rule and instead sent the case back down for trial to answer its questions.

In his December decision, 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.

Caffry said those total some $2,538.