Paddling ruling appealed

Brandreth Park Association says judge erred in dismissing trespass suit against ‘Explorer’ editor.

By Kenneth Aaron

Phil Brown paddles near a cable on Shingle Shanty Brook in May 2009. Photo by Susan Bibeau — **Phil Brown paddles near a cable on Shingle Shanty Brook in May 2009.**
Photo by Susan Bibeau

THE BRANDRETH PARK Association has appealed a court ruling in a paddling-rights dispute, contending that it could strip landowners of their rights by potentially opening even the smallest of waterways to the public.

Dennis Phillips, who represents the association and the Friends of Thayer Lake, said State Supreme Court Justice Richard Aulisi ignored historical precedent by failing to gauge the commercial suitability of a privately owned waterway that Adirondack Explorer Editor Phil Brown paddled in 2009.

In his decision a year ago, Aulisi dismissed a trespassing lawsuit against Brown. In January, Phillips filed an appeal with the Third Department of the Appellate Division, which is headquartered in Albany.

Phillips raised several questions on appeal, most of which center on whether the capacity for recreational use alone is sufficient to trigger the public’s common-law right to travel on privately owned waterways.

“I think they are looking at mere floatability [of a canoe or kayak] as the test. We have a historical disagreement in that sense,” Phillips said in an interview.

John Caffry, Brown’s attorney, said he is confident in his client’s prospects. “There’s nothing really new here, and we don’t think they make any convincing arguments that Justice Aulisi was wrong in declaring these waters navigable,” he said.

In May 2009, Brown paddled through property owned by the association and Friends of Thayer Lake (the groups are affiliated), and he later wrote about the trip in an article in the Explorer. The disputed waterway, which was posted against trespassing, included Mud Pond, Mud Pond Outlet, and part of Shingle Shanty Brook. He paddled the waterway as part of a much longer journey between Little Tupper Lake and Lake Lila, both in the state-owned William C. Whitney Wilderness. In doing so, Brown avoided a three-quarter-mile carry across state land.

The plaintiffs filed suit against Brown in November 2010.

The state Department of Environmental Conservation and state Attorney General Eric Schneiderman sided with Brown and joined the lawsuit on his behalf. The state also called for the property owners to take down a rope, cable, and no-trespassing signs meant to deter paddlers.

While Phillips contends that a history of or capacity for commerce is essential for a waterway to be declared “navigable-in-fact,” Aulisi and other judges have noted that nowadays most of the state’s rivers are used primarily for recreation, not driving logs to mills or as a route for barges laden with cargo.

Aulisi ruled in February 2013 that the route through the Brandreth property has “practical utility for travel or transport,” a navigability test established in a 1998 decision handed down by the Court of Appeals, the state’s highest court. In that case, the Adirondack League Club sued the Sierra Club and five paddlers who traveled down a contested stretch of the South Branch of the Moose River.

It’s that or—as in, “travel or transport”—that Phillips is parsing.

“For the first time, it threw the word or in there,” he said after filing the appeal. “It was always an and, not an or.”

Caffry contends that Phillips’s characterization of the legal history is wrong. “It was or as far back as the colonial-era English common law, which New York based its laws on after gaining its independence,” he said.

In any event, Phillips maintains that recreational travel by itself does not meet the legal test, arguing that “the navigability-in-fact doctrine came out of, and is rooted in, commercial necessity.” He said Brown and Caffry are pushing for a looser standard that would open to the public any stream that can be paddled in a canoe or kayak.

Caffry again disagrees. “The test was never really a commercial test to start with,” he said. “The test was always one of practical utility for trade or travel, and travel doesn’t require that it be commercial.”

In any case, Aulisi found that the waterway did indeed hold potential for commercial traffic. He cited the use of the waterway to ferry furs as well as construction materials to and from a camp built on the property. He also took note of the testimony of Dave Cilley, a paddling guide who said he would likely lead clients down the isolated stretch.

Phillips found Aulisi’s finding that the waterway was suited for hauling goods ironic: “it was mostly based on their canoeing and their use and enjoyment of their own property over a period of a century,” he wrote in the appeal.

As far as tourism, Phillips said Brown’s article recounting his journey took care of boosting traffic. “In the twentieth century, there were two sightings of people who happened to wander onto the Mud Pond Parcel with a canoe,” Phillips said. “As far as the family is concerned, there were two sightings in one century. And then before the Phil Brown article, there was one sighting in the twenty-first century.”

After the article appeared, many more visitors were seen via a trail camera that takes a photo whenever a motion sensor is triggered. Phillips characterized Brown as a “Pied Piper” in a lightweight canoe.

Caffry said other paddlers traveled the waterway unbeknownst to the family. But however many people used it, he added, the fact that the route can carry traffic is enough to satisfy the legal standard for navigability-in-fact—and the property owners themselves proved it. “The usage that they made themselves is all the evidence you really need,” he said.

Responses from Phil Brown and the state attorney general’s office are due to the court by March 20; after that, the property owners will have the opportunity to file a reply. Attorneys for both sides said they expect the case to be heard in the Appellate Division in the fall at the latest.

The Appellate Division could uphold or overturn Aulisi’s ruling or send it back to him for further consideration. It’s also possible that one of the parties could appeal the next decision to the state’s highest court, the Court of Appeals.

The case log

May 21, 2009

Adirondack Explorer Editor Phil Brown paddles

through property owned by the Friends of Thayer Lake,

which is affiliated with the Brandreth Park Association.

July 2009

Brown’s account of his trip appears in the

July-August issue of the Explorer.

November 15, 2010

Brandreth Park Association and Friends of Thayer Lake

file a lawsuit against Brown accusing him of trespass.

August 12, 2011