By MICHAEL VIRTANEN
A new ruling is expected by year’s end in the eight-year-old lawsuit that pits landowners against outside paddlers over rights to a two-mile waterway in the remote northwestern Adirondacks.
State Supreme Court Justice Richard Aulisi, after hearing three weeks of trial testimony this summer, is tasked with deciding whether Mud Pond, its outlet and parts of Shingle Shanty Brook and Lilypad Pond are “navigable in fact” where they pass through private land and therefore open to any canoeist or kayaker.
The land is owned and controlled by the Friends of Thayer Lake LLC and affiliated Brandreth Park Association, whose members sued because they don’t want strangers on their land and waters.
The defendant is former Adirondack Explorer editor Phil Brown, who in 2009 wrote an article for the magazine about his trip on what Aulisi in court has taken to calling “the disputed waterway.” Brown is accused of trespassing.
New York’s Department of Environmental Conservation subsequently sided with Brown. The DEC concluded the two-mile stretch, part of the so-called Lila Traverse between publicly owned lands and waters in the Whitney Wilderness, is rightfully open to the public.
Brandreth Park members disagree. They say there’s a portage of less than a mile that paddlers can and should take on the 17-mile traverse between Little Tupper Lake and Lake Lila to avoid their land entirely.
The owners have sued the DEC separately, claiming improper taking of property rights, though the department has also participated in Brown’s trial and that issue could be resolved there.
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 midlevel Appellate Division upheld that dismissal but those justices were split 3-2. New York’s Court of Appeals, its highest court, sent the case back down for a full trial, concluding the voluminous “conflicting or inconclusive evidence” needed to be sorted out there.
“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 top court said.
In closing arguments on Wednesday, attorney Amanda Kukle said the legal test for a public easement on waterways through private land is “practical utility to the public,” that historical records show this one was used commercially, has “great potential” for future use and that recreation may be part of the legal test for that.
“Mr. Brown had a right to use Mud Pond Waterway,” Kukle said. “There was no trespass.”
Assistant Attorney General Nicholas Buttino said eight paddlers testified they traveled along the Mud Pond Waterway at various times between 2009 and 2017 and had no difficulty. He asked the judge to conclude that the landowners created a public nuisance with efforts to stop its use.
Brown “overreached” in 2009 by using the waterway without asking permission, and the state did the same by stating publicly that it was open, attorney Eric Schwenker countered. “All the defendants have done is made a case that they should purchase this property.”
Schwenker noted that the state’s and Brown’s witnesses all said they preferred paddling through to carrying their boats on the state path around the private land and that they enjoyed the solitude. “So what if they preferred that? The law doesn’t confer a right to the public based on the subjective preferences of a few people,” he said.
At trial, Justin Potter, a member of the extended family of landowners who monitors that part of their holding, said the waterway’s use by outsiders was extremely infrequent. Cameras placed along it showed “four groups of strangers” canoed it in 2010, he said.
“The question we had is how often we would bump into strangers on the property,” Potter said. “People who are not my cousins, people who I do not know, people who are not members of the Brandreth Park Association and who are not their guests.”
In about 180 days that he was in that area over the past decade, he didn’t encounter any outsiders, Potter said. He noted that the rapids at the Mud Pond outlet are “not canoe-able,” that the association established a 500-foot portage trail around them for its use that strangers have used and that he has cut trees farther downstream that fell across the waterway, which was needed to make it passable, while low water and beaver dams can impede canoeing.
Brown testified he used that short portage trail, which also bypasses a low footbridge, and ran into no physical obstacles on other parts of the two-mile stretch except the trespassing signs and a cable the landowners had placed across it at the property line.
“When I paddle I like to get away from civilization so to speak,” said Brown, also an author of canoeing guides. “This was as scenic if not more scenic than many of the trips I’ve done.”
Christopher Amato, former DEC assistant commissioner who canoed the disputed waterway, said, “It was incredibly scenic … very remote and very wild,” and it was “an easy paddle.”
Amato had helped some Boy Scouts carry canoes on the three-quarters of a mile portage that avoids canoeing through private land—a group that simply happened to be there the day he was. He said that DEC-maintained alternative route was “a difficult carry,” kind of overgrown with treacherous footing, a portage that he “wouldn’t want to do … again.”
Aulisi asked the lawyers to file their proposed findings of fact and legal conclusions by Nov. 15. If they do that he said he can issue a decision by the end of the year.