State can join lawsuit

By Kenneth Aaron

The State of New York can intervene in a trespassing lawsuit filed by a group of landowners against Adirondack Explorer editor Phil Brown, a State Supreme Court justice has ruled.

The state attorney general’s office and the Depart- ment of Environmental Conservation (DEC) asked to join Brown in the dispute, and Justice Richard T. Aulisi granted them permission to do so. State officials want to defend the public’s right to paddle a remote waterway that the landowners argue should be reserved for their own use.

As a result, Brown’s position is now backed by the state’s imprimatur—and resources.

“The State of New York, as trustee of the public rights, is certainly a proper party to this proceeding and to any litigation that seeks to forever bar the general public from access to claimed navigable waterways,” Aulisi wrote in a decision dated August 12, which followed a hearing on the matter in May.

A spokeswoman for Attorney General Eric Schneiderman declined to comment on the ruling, citing the ongoing litigation. At the hearing, though, Assistant Attorney General Kevin Donovan said if the state were kept from joining the suit, the state would be forced to initiate a separate case to keep the waterway open.

Dennis Phillips, the plaintiffs’ attorney, had opposed the state’s motion to intervene, but he said his clients would not appeal the decision.

“With the State of New York as a party, the facts of the case and the applicable law will be fully developed and presented to the court for a ruling on the merits,” he wrote in an e-mail.

The case revolves around a two-day canoe trip Brown took in 2009 from Little Tupper Lake to Lake Lila. Most of that journey was made through the publicly owned William C. Whitney Wilderness. However, it also included a two-mile stretch through waters bordered by

private land: Mud Pond, Mud Pond Outlet, and part of Shingle Shanty Brook.

The waters in question connect two tracts of public Forest Preserve, but the property owners—the Friends of Thayer Lake and the Brandreth Park Association— contend that Brown should have used a portage trail on public land to avoid paddling through their land.

The landowners had strung a cable, with no-trespassing signs, across Shingle Shanty Brook. There also were no-trespassing signs on Mud Pond and the outlet. But Brown and others—including DEC officials who, at the behest of the landowners, later paddled the disputed waterways—maintain that the route is open to the public under longstanding provisions of the common law.

Brown wrote about his trip for the Explorer, one of a series of articles on navigation rights. He was sued for trespass in 2010 after DEC failed to persuade the land- owners to take down the cable and signs and open the waterways to the public on a trial basis.

In answer to the lawsuit, Brown’s lawyer, John Caffry of Glens Falls, argued that the state was a necessary party to the suit. Caffry, who said he was pleased with Aulisi’s ruling, expects that the state’s intervention will bolster his case.

“I think it will help to have additional people power involved,” he said.

DEC did not respond to an e-mail by press time, but the department told the Adirondack Daily Enterprise that “DEC believes that because Shingle Shanty Brook is navigable, the public has the right to navigate those waters.”

Neil Woodworth, executive director of the Adirondack Mountain Club, said the attorney general’s office “brings a certain moral authority” as well as extra firepower to the proceedings.

Both he and Caffry cited a lawsuit involving fishermen on the Salmon River in Oswego County as an example of what can happen when the state decides not to lend its backing. In that instance, then-Attorney General Dennis Vacco opted not to intervene in a case brought by a private club against individuals fishing on the Salmon River. The state’s highest court ultimately found in favor of the club, ruling that individuals did not have a right to the fish on the river even though it was open to public navigation.

“I think, in that case, the absence of the attorney general made a huge difference,” Woodworth said.

Woodworth, who is a lawyer, and Caffry represented ADK in a landmark paddlers’ rights case in the 1990s in which the state intervened on behalf of paddlers. The Adirondack League Club had sued five people who paddled through its land on the South Branch of the Moose River. Although the case was settled before trial, it established an important principle: recreation, not just commerce, can be considered in deciding whether a waterway is navigable. Woodworth said the Explorer case may determine the standards used in defining navi- gability.

“We know that the DEC believes that the part of the waterway in question meets that test, but ultimately that test is up to the court to decide,” Woodworth said.

The case will now move to its discovery phase, in which the parties will gather evidence from each other. Caffry expects that the parties eventually will ask the court for summary judgment—a ruling on the law when the material facts are not in dispute. If that happens, there will be legal arguments but no trial. ■