Paddling case re-argued

Judges hear appeal of ruling that upheld right of canoeists and kayakers to travel through private land on Shingle Shanty Brook.

By Kenneth Aaron

Lawyers for the landowners who sued Adirondack Explorer Editor Phil Brown for canoeing across their property returned to court in early October, arguing that the waterway in question should be closed to the public.

A five-judge panel of the state Appellate Division’s Third Department heard the appeal in Albany and is expected to issue a decision this year or early next year.

Last year, State Supreme Court Justice Richard T. Aulisi ruled that the remote two-mile waterway—comprising Mud Pond, Mud Pond Outlet, and part of Shingle Shanty Brook—was “navigable-in-fact” under the common law and therefore open to recreational paddlers.

The route is part of a longer waterway that connects two portions of the state-owned William C. Whitney Wilderness, By paddling it, travelers avoid a three quarter-mile-long carry across public land.

In 2010, the Brandreth Park Association and Friends of Thayer Lake filed a trespass suit against Brown, who had paddled the route a year earlier as part of a longer journey that began at Little Tupper Lake and ended at Lake Lila. He wrote about the trip and the issue of navigation rights for the Explorer. New York State intervened in the case on behalf of paddlers.

Dennis Phillips, the attorney for the landowners, urged the Appellate Division to overturn Aulisi’s decision. During his argument, he characterized Brown’s paddle through private property as a “joyride” that he should have skipped.

“He was enjoying his time in the Whitney Wilderness and he said in the record, ‘This is one of the best trips in the eastern United States, but it would be even better if I could go on this joyride on private lands,’” Phillips said. “It’s kind of in the category of the grass is always greener on the other side of the fence.” (He was paraphrasing Brown, who never described his trip as a joyride.)

Phillips contended that a waterway is not navigable-infact unless it has a history of commercial transport or the capacity for such use. He argued the Brandreth waterway is too shallow and too narrow to support commercial traffic. He rebutted the defendant’s claim that recreational use alone is sufficient to qualify a waterway as navigablein-fact. Adopting such a standard, he told the judges, would erase generations’ worth of property protections.

“If you graft onto this idea that the navigability-in-fact doctrine is based on recreation, then just throw the whole thing out the window,” he said. “Then we don’t have in this state private property as we have known it.”

Brown’s attorney, John Caffry, disputed Phillips’s assertion, pointing out that the Court of Appeals, the state’s highest court, ruled in 1998 that “practical utility for travel or transport” is the test for navigability-in-fact.

“There was never a commercial-use test for navigability in New York State,” Caffry told the justices. “As society’s uses of the waterways have changed, then the nature of the cases that have come before our courts have changed.”

At one time, Caffry said, navigability disputes often revolved around whether rivers could be used for transporting logs; nowadays, the cases often involve recreation.

Associate Justice Elizabeth Garry asked Caffry if the existence of the state’s carry trail obviates the need to open the route to the public, as Phillips contended.

“There’s never been a court that said a waterway is navigable only when it’s absolutely necessary,” Caffry responded.

Later, Assistant State Attorney General Philip Bein offered an analogy to make the same point. “The test is practical utility. Is the Taconic [Parkway] necessary when you can use the Thruway? This is a public highway,” he said of the waterway.

In any case, Bein said, the waterway meets the commercial test as well. In the early 1900s, he said, the landowners trapped beavers in the area and transported the pelts on the water for sale elsewhere. He also said the waterway was used to carry other goods.

Associate Justice Michael Lynch peppered Phillips with questions about the fur trapping. “Isn’t that trade or evidence of a commercial use in the past?” Lynch asked.

Phillips said Bein had mischaracterized the trapping. “Did he sell the furs? Yes, he did. Was he engaged in fur trading? Not on these waterways.”

Tom Kligerman, one of the defendants in the lawsuit that led to the seminal 1998 ruling by the Court of Appeals, sat in the audience during the oral arguments and afterward asserted that a victory for Brown could lead to the opening of other waterways with murky access rights.

“This will clear up any doubt there may have been that smaller, narrower, sluggish streams, that they, too, are navigable,” said Kligerman, who was among five paddlers sued by the Adirondack League Club after traveling down the South Branch of the Moose River.

Which is not to say, he added, that anything with a trickle will suddenly become open to the world. Streams that are so marginal that they are only usable for a few weeks or less during the year probably won’t be affected.

The Appellate Division could uphold Aulisi’s ruling, overturn it, or send it back to the lower court for further consideration. Either side could also try to take the case to the Court of Appeals.