Paddling case begins anew

Citing unanswered questions, state’s highest court sends trespassing suit against Adirondack Explorer back to lower court for a trial.

By KENNETH AARON

The six-year-old navigation-rights dispute between Adirondack Explorer Editor Phil Brown and a group of property owners has been sent back to State Supreme Court Justice Richard T. Aulisi for a full trial, which is unlikely to take place before next year.

A decision in May by the Court of Appeals, New York State’s highest tribunal, reopens the question of whether the public has the right to paddle a two-mile-long waterway connecting two pieces of the state-owned William C. Whitney Wilderness.

Both Aulisi and the Appellate Division of State Supreme Court had affirmed Brown’s right to travel the waterway, but after the landowners appealed, the seven-member Court of Appeals declined to rule on the merits of the case, saying there were too many unanswered factual questions.

Brown paddled through private land—via Mud Pond, the Mud Pond outlet, and part of Shingle Shanty Brook—as part of a longer trip between Little Tupper Lake and Lake Lila in May 2009. The next year he was sued for trespass by the Friends of Thayer Lake, which owns the property, and the Brandreth Park Association, which owns the recreational rights. (Both groups are subsets of the extended Brandreth family.) The state Department of Environmental Conservation, represented by the state attorney general’s office, intervened in the case to defend the right of public navigation, an ancient common-law doctrine inherited from England.

Soon after the Court of Appeals decision, Aulisi held a conference with lawyers for the parties, but no trial schedule was set. Brown’s attorney, John Caffry, said he expects a trial date will be set for some time next year. Meanwhile, the parties are expected to gather evidence, including depositions, to address questions raised by the Court of Appeals.

At the start of the case, both sides said they agreed on the facts and wanted Aulisi to rule only on the law. With some reluctance, Aulisi acceded to their request for summary judgment, thus sparing the litigants the time and expense of a trial on the facts.

The Court of Appeals, however, wrote that summary judgment should not have been granted, given the conflicting or inconclusive evidence on a number of facts. “The record is not conclusive with regard to, for instance, the Waterway’s historical and prospective commercial utility, the Waterway’s historical accessibility to the public, the relative ease of passage by canoe, the volume of historical travel, and the volume of prospective commercial and recreational use,” the court said.

Both Caffry and Dennis Phillips, the lawyer for the landowners, were resigned to the decision. “I think it could have been decided on the record that was there, but that’s their call,” Caffry said.

Phillips said he understood the high court’s reasoning. “They may have felt that they were being put into the position of a fact-finder instead of a law-finder,” he said.

Phillips said the decision sends the case back to square one. The Mud Pond Waterway, as it’s called in court papers, had been unambiguously open to the public as a result of Aulisi’s ruling, but the Court of Appeals decision leaves its status in limbo once again. Phillips said paddlers who use the Mud Pond Waterway instead of portaging around the private property will be “at risk” legally.

“The paddlers are now on notice that there is a serious case and controversy involving the legality of the public to recreate, use, and enjoy the private-land waters of the Mud Pond parcel,” Phillips said in an email to the Explorer.

By canoeing down the Mud Pond Waterway, Brown avoided the 0.8-mile carry along a state-maintained trail.

Aulisi dismissed the landowners’ lawsuit in February 2013. After the landowners appealed, the Appellate Division of State Supreme Court also ruled in Brown’s favor in a 3-2 decision. The landowners then appealed to the Court of Appeals, which heard arguments on March 24.

The decisions by the lower courts leaned heavily on an earlier case in which the Adirondack League Club sued a group of paddlers who went through its property on the South Branch of the Moose River. In that case, the Court of Appeals said a waterway is open to the public if it has “practical utility for travel or transport.”

In the Moose River case, as in the current case, the Court of Appeals ruled that there were unresolved factual questions and sent it back for trial. Ultimately, the Moose River case never made it that far: a settlement that was reached nine years after the case began granted paddlers the right to use the river during certain times of the year when water levels permitted travel.

Caffry, who also represented paddling advocates in the Moose River case, said a settlement is an option in Brown’s case as well. “We would be glad to talk to them,” he said. “The possibility of some out-of-court resolution is always there.” As of early June, though, Caffry said there have been no substantive settlement discussions.

Before the landowners sued Brown, DEC suggested a trial period in which paddlers would have the right to use the route. The property owners rejected that suggestion, though.

Phillips maintained throughout the case that waterways need to exhibit some capacity for commercial traffic to be “navigable-in-fact,” the legal term for inland waterways open to the public. Caffry argued that commercial capacity is not needed, that capacity for travel is enough. But in any case, he said, the Mud Pond Waterway has a history and capacity for commercial use.

By the time Brown’s case made it to the Court of Appeals, it had won attention from several outside parties. The Adirondack Mountain Club and Environmental Advocates filed a brief with the Court of Appeals backing Brown’s position. The Adirondack Landowners Association, New York Farm Bureau, Empire State Forest Products Association, Property Rights Foundation of America, and Pacific Legal Foundation sided with the plaintiffs.