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.
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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.
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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.
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“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.
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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.
As a new land owner (300 acres) in this amazingly beautiful Park, I must say that perceived private property rights are very different than what one might think. I bought this property to have solitude. What I have so far are more people hunting and hiking on my property than I see in my home town in a neighboring and very populated state. “we (or my family) have been hiking/hunting here for over 100 years” they claim. As if that entitles them to continue to hike or hunt against my will. 3 million of the 6 million acres are public lands, I believe. Hike and hunt there and give me the private property rights I deserve. My property was “for sale” for over 5 years. EVERYONE had an opportunity to buy it. They should have done so if they wanted to use it so much.
I realize this particular “waterway” issue is a bit different but my guess is the laws that were put into place were not intended to allow private property invasions as we will see here.
Your situation sounds clear cut, in situ terra firma is defined by privately owned mapped boundaries, whereas navigable, flowing water that is passing through is public property distinct from terra firma.
Seems that the Brandreths are using the same nonsense entitlement argument as your trespassers: “We’ve always been doing (closing) it, therefore that’s what I decide to call the law.”
I see your arguement about flowing water and agree in almost all cases. We have similar situations where I am about canoe/kayak rights in the nearby river and whitewater streams. What has always been the rule in our area is you ask permission to pass through a property if the property boundry encompasses the river bottom and/or both shores (as in this case). The minute you touch river bottom or the shore you are on their terra firma.
Brown admits in the article and in trial that he used the property owners trails to get around areas of the brook where it was not navigble. That is tresspassing plain and simple. The proprty owners built that trail for their use and enjoyment, not the publics. The owners have not granted anyone right of way on the property to get around the rapids or other impedements. What happens if there is debris blocking thr river; trees, beaver dams, etc. Are the proprty owners now responsible for maintaining the waterway? Is the DEC?
Lets say the judge says that the river is navigable and open to people traveling through it. Do the owners have the right to detain and arrest tresspassers who walk on the river bed in low water or stop on the shore to take a break? You bet they do and I would do exactly that. At the proprty boundry there would be a nice sign saying that you are entitled to paddle through but not to stop on land. Any deviation from that without expressed permission leave you subject to arrest and fines.
Not allowing property rights to be respected without established right of way agreements leads to these lawsuits and the mess that will follow. I am just waiting fot the lawsuits in three years when a person is hurt from a tree across the river and sues the property owner for not maintaining the navigable waterway.
I am dumbfounded by this statement: “When I paddle I like to get away from civilization so to speak.” Therefore Phil Brown and all others like him should be able to travel two miles on a remote waterway and, when no one is looking, take a shortcut on private property through the woods, because those two miles are actually somewhat annoying.
For my part, when I walk to the store, I like to go in a straight line through people’s back yards, it’s so much more convenient for me. And it allows me to get away from the traffic associated with civilization.
I get it that water use and land use are two different issues, kind of. But if we’re going to pay the courts to sort out whether that two miles of waterway was once commercially used, or is navigable-in-fact, let’s go the whole way and split hairs about the meanings of “commercial” and “navigable.”
Supposedly it was commercially used because of local trapping activity at one time: the property owners carried one or more canoe load(s) of animal skins on the Mud Pond waterway. But how much money did they get for those skins? Was that money a profit after all expenses were factored in? If there was no profit three years running, was their trapping just a hobby?
If it wasn’t commercially used in the past, it could be in the future: boats should be allowed access to this waterway because their occupants have the potential to generate “recreational” commerce. If only use could be limited to visitors who actually spend money. Oh, wait. Phil Brown is spending money. And DEC. And the property owners. Is this the recreational commerce that’s promised for this waterway?
And navigable used to be defined as a waterway that could be sailed on — isn’t that a bother! Today, I can navigate a sidewalk, or navigate my way through a town — so why can’t I navigate by foot down a stream? When I’m in town I can carry a handbag for my belongings. Surely when I’m walking down the stream I can have a boat with me to keep my sandwich dry. I say let Phil Brown and his friends walk down as many private streams as they like.
There’s a lot of gorgeous and remote waterway scenery in the Adirondacks. Once it’s all been visited, all used up, then let’s tackle the problem of little streams in the outback.