Canoe Rights Advocates Go On the Offensive
by Mary Thill
The Sierra Club—the same people who thought they had re-established canoe rights once and for all in New York State with a lawsuit-baiting paddle down the South Branch of the Moose River in 1991—wants to make sure that private landowners and state officials recognize what that trip accomplished.
In a letter sent last month, the Sierra Club’s Adirondack Committee asked the New York State Department of Environmental Conservation (DEC) to enforce public navigation laws by making an Adirondack landowner remove cables and signs strung across Shingle Shanty Brook.
“This is a clear-cut case where those laws have been violated by Brandreth [Park Association] for many years,” an August 27 letter to DEC Commissioner Pete Grannis states. “DEC should order the Brandreths to remove the cable and intimidating signs from the State’s right-of-way where they have long been a threat to paddlers and a hindrance to navigation.”
Four canoeists and a kayaker affiliated with the Sierra Club were sued for trespass nearly two decades ago when they attempted to paddle the Moose River through the Adirondack League Club near Old Forge. The test case worked its way through the courts for seven years before it affirmed the right of recreational paddlers in New York not only to float through private land via rivers but to use the banks to portage around obstacles (for background see this Almanack article, or this brochure on the history and status of navigation rights).
The Moose River ruling said streams that are “navigable in fact” are open for public passage. There’s room for disagreement about the definition of “navigable in fact” on rivers such as the Beaver between Lake Lila and Stillwater Reservoir, which is really only passable for about a week after ice-out.
Other waterways, such as the East Branch of the St. Regis River and Shingle Shanty, seem to meet navigability criteria, yet landowners continue to post them. Paddlers could use the disputed section of Shingle Shanty on a traverse from Lake Lila to Little Tupper Lake with a short carry around a dam at Mud Pond. Here’s a recent account of that trip by Adirondack Explorer editor Phil Brown.
A June 2008 article in the DEC magazine The Conservationist by agency attorney Kenneth Hamm states, “[A]ttempts by landowners to interfere with the public’s right to freely navigate violates the State’s trust interest in the waterway. Either the State or the public can sue if a landowner tries to interfere with the public’s right to navigate on navigable waterways.” In the late 1980s DEC was still arresting paddlers for trying to access rivers involving private land. Its enforcement policy shifted, to uphold paddler rights, in 1991.
Nobody has sued a landowner yet. Charles Morrison, a retired DEC official who co-signed the Sierra Club letter as the group’s public navigation rights coordinator, has been focused on codifying riparian-rights case law and common law in statute. A bill has an Assembly sponsor but has been stymied in the dysfunctional state Senate. If the legislature and the DEC don't take up the issue, we might see a paddler as plaintiff rather than defendant in the next navigation rights lawsuit.
Here is the Sierra Club letter to DEC:Dear Commissioner Grannis:
We are writing to request that DEC take action to remove the blockage of the State-owned public right-of-way on Mud Pond and a segment of Shingle Shanty Brook between the outlet of Mud Pond and the downstream Forest Preserve boundary. This blockage, where these navigable waterway segments flow on private land adjacent to the William C. Whitney Wilderness, is maintained by the Brandreth Park Association. It consists of a cable strung across Shingle Shanty Brook by Brandreth at the downstream Forest Preserve boundary and a number of posting signs, all erected by Brandreth. (For general location, see sketch map of the Mud Pond-Shingle Shanty Brook through-segment and vicinity, Attachment 1.)
This blockage forces paddlers to use a very rough one-mile carry trail through the Forest Preserve instead of this easy waterway route.
As discussed and documented in the attached“Illegal Blockage of Shingle Shanty Brook and Mud Pond in the Whitney Wilderness Vicinity,” these impediments to public navigation violate both State public nuisance law and the public’s right under State law to freely navigate on navigable waterways. They are infringements on the navigational easement that the State holds in trust for the public. This also is a critical link between Little Tupper Lake and Lake Lila in the heart of the proposed 500,000-acre Great Oswegatchie Canoe Wilderness (GOCW), whose creation has been advocated by the Sierra Club and other conservation organizations. (See map in enclosed GOWC brochure showing this larger area, Attachment 2.) The GOWC includes Lows Lake and the Bog River, the Five Ponds Wilderness Area and the Pigeon Lake Wilderness Area, all of which are accessible from the Whitney Wilderness by paddlers.
We actually are asking DEC to do several things. First, with regard to the case at hand, enforce existing State public nuisance and public navigation rights law in accordance with the 1991 DEC enforcement guidance memorandum on this subject. This is a clear-cut case where those laws have been violated by Brandreth for many years in the name of their deeded recreation rights. DEC should order the Brandreth to remove the cable and intimidating signs from the State’s right-of-way where they have long been a threat to paddlers and a hindrance to navigation.
Second, DEC should ensure that Brandreth’s surrogate, Potter Properties LLC, amends its 2007 deed concerning its illegal claim to navigation rights on the waterway segments at issue, to reflect the State’s ownership of these rights. This is discussed below.
Third, we ask DEC staff to honor the several commitments made during the Sierra Club’s December, 2007 meeting with them, which were to:
—revise, update and reissue the 1991 DEC enforcement memorandum for public navigation rights as soon as possible.
—remove the text on navigation rights in the black bordered box on page 3 of the DEC Whitney Wilderness brochure. This text erroneously states that a court decision is needed to find that a waterway is navigable in order for it to be truly navigable-in-fact, which is incorrect.
—help to educate the public about their lawful rights and obligations by issuing a statewide flyer or brochure that combines and expands on the information that is in Kenneth Hamm’s article and the John Humbach-Charles Morrison article, both of which are described below. The flyer would be widely disseminated through all DEC Regional Offices and via DEC’s website.
Fourth, DEC needs to let paddlers know, in DEC’s brochure for the Whitney Wilderness, that the vital Mud Pond-Mud Pond Outlet-lower Shingle Shanty Brook link is open to the public for navigational purposes, for through travel.
It is particularly important to follow through with these committed actions in view of the delay in getting a bill (A.701) passed in both houses of the Legislature to codify the public right of navigation in a single statute and give DEC specific authority to issue regulations, including a list of navigable waterways that would be subject to amendment based on field investigations. We appreciate DEC’s collaboration in drafting this legislation.
Please let us know if we can provide any other information to aid DEC’s pursuit of this enforcement case, or if we can help with any of the agenda items to which DEC committed itself in 2007. Thank you for your attention to the abuse of the public’s rights on Mud Pond and Shingle Shanty Brook.
Sincerely,
Roger Gray, Co-Chairman, Adirondack Committee
John Nemjo, Co-Chairman, Adirondack Committee
Charles C. Morrison, Adirondack Committee, Public Navigation Rights Project Coordinator
Encl. Main attachment and eleven (11) numbered attachments
cc: Hon. Andrew M. Cuomo, Attorney General
Judith Enck, Deputy Secretary for Environment, Executive Chamber
Stuart Gruskin, Executive Deputy Commissioner, DEC
Allison Crocker, General Counsel, DEC
Michael Lenane, Deputy Commissioner, DEC
Christopher Amato, Assistant Commissioner, Natural Resources, DEC
James Tierney, Assistant Commissioner, Water and Watersheds, DEC
Robert Davies, Director, Division of Lands and Forests
Kenneth Hamm, Associate Attorney, DEC Office of General Counsel
Christian Ballantyne, Director, Legislative Affairs, DEC
Elizabeth Lowe, DEC Region 5 Director
Christopher LaCombe, Regional Attorney, DEC Region 5
Brian Huyck, Enforcement Coordinator, DEC Region 5
Katherine Kennedy, Director, Environmental Protection, Depart. of Law
Lisa Burianek, Environmental Protection, Department of Law
Curtis Stiles, Chairman, Adirondack Park Agency
Terry Martino, Executive Director, Adirondack Park Agency
Photograph of the East Branch of the St. Regis River
26 Comments:
I don't think the Sierra Club is going to have very much success pleading their case to the DEC because:
1. The DEC cut and maintains a portage trail around that stretch of water (through a beautiful meadow and pine grove that are remnants of the forest fires at the turn of the century), strongly implying that current law favors the landowner's position; and
2. This statement from the DEC site (http://www.dec.ny.gov/outdoor/9165.html) "Round Lake and Round Lake outlet are on private land, as are Bog Stream and stretches of Salmon Lake Outlet, Mud Pond into Shingle Shanty Brook, Charley Pond Outlet, and Otter Pond Outlet. While recent court cases have established the public right to traverse private lands by boat on specific waters in other parts of the state, the question of the legal right of the public to navigate any of the waters that enter private lands from the William C. Whitney Area has not been resolved. Please respect the wishes of private property owners to enjoy their privacy, and realize that landowners may take legal action should you decide to proceed by boat beyond State land boundaries."
I don't see why more effort is put into clarifying the law via reasonable, common sense legislation, rather than constantly referring back to the opinions of a handful of people advocating one side of the issue, and ambiguous court cases.
Anonymous,
DEC is in the process of changing the wording in the brochure/Web site you cite. Here's what DEC spokeswoman Lori Severino said earlier this year about that passage: "[S]ome have asserted that the tone of the brochure related to posted lands may chill the public's right of navigation. Although, that may not necessarily be the case, the Department is in the process of making some changes to the brochure to ensure that it doesn't come across to somehow chill the public's right of navigation."
It's true that the landowners may take legal action but in that particular geography it seems pretty clear the law is not on their side.
The people referring back to court cases are also trying to clarify the law by legislation. Private landowners have said they would rather not see navigation rights in statutory law.
I agree that the Shingle Shanty route should be open to the public, and that it being open conforms to common sense given the geography of the area and the "spirit" of the law. The fact that it isn't definitively open is a testament to how outdated and silly the law is.
But silly and outdated laws abound and should be respected. Until either definitive legislation is passed, the DEC clears up its conflicting actions and statements, or an agreement is reached with the landowner, paddlers should err on the side of caution and respect the landowner's position. Doing otherwise strongly suggests that some paddlers are not going to respect laws they don't agree with and are likely to keep on pushing the boundaries.
There are a lot of very basic and reasonable questions that still have to be answered for the landowners. What are the landowners responsibilities and liabilities? Do they have an obligation to clear hazards such as dangerous and potentially lethal strainers? Do they get blanket protection from lawsuits if something happens within their property lines, or could they be dragged into court? What exactly is the legal definition of a portage? Will there be a requirement to register when a canoeist enters private land? Will "keyhole access" be permitted? In the event of vandalism, arson, etc. that occurs as a consequence of public access, will the state reimburse the landowner? What if there might be a significant negative environmental impact resulting from increased traffic, such as by disturbing nesting birds or potentially introducing invasive species? When Little Tupper Lake was opened to the public, bass were introduced and decimated the native strain of Brook Trout. If there is a research project happening in the area that might be affected, can access be restricted on those grounds? Etc, etc...
One would think that the most logical, inexpensive, and effective strategy to get these sorts of routes open would be to try to cooperatively negotiate with the landowners and the DEC first - listen to and try to address concerns like those above - and then when all else fails turn to an antagonistic approach. Instead, the preferred strategies of navigation rights advocates seems to be as confrontational and antagonistic as possible. Fights are fun, but rarely have a positive outcome for anyone involved. Highly questionable declarations like "This is a clear-cut case where those laws have been violated by Brandreth for many years in the name of their deeded recreation rights," and various statements by Charles Morrison along the same lines - despite the DEC's apparent support of the landowner's position through statement and action - are both highly antagonistic and potentially libelous. Such statements are also likely to antagonize the DEC as it suggests that the department has not been fulfilling its responsibilities and in a sense has been "aiding and abetting" the "illegal actions" of the landowners.
After 20 years with very little change in the law or the unambiguous opening of once contested routes that aren't explicitly addressed in court cases, I think it is time for navigation rights advocates to take a different approach. As the old saying goes, 'you catch more flies with honey than vinegar.'
The public's right to navigate on navigable waterways has been around since 1777 when New York became a state and adopted English common law in its new constitution.
The case law decisions that have been made in the years since then have not changed the basic public right, but rather have refined it. There have been scores of these case law decisions, large and small, important and not so important,some with statewide implications and most with local implications. As new issues arise, the refinement of the common law will continue through more court decisions.
The average person cannot find these cases, much less begin to interpret and understand how they fit together. That's why
codihication of the basic tenets of this public right in a single statute, where it can be easily found and where no interpretation is needed, is important.
About 150 years ago all of the waterways throughout the Adirondacks were fully open to public passage. No landowners put cables across waterways or put up "Keep Out" signs on waterways. Then in 1885, the State's highest Court, the Court of Appeals, decided to give away all of the underwater land on freshwater lakes and streams to the adjoining riparian landowners. In the same decision they acknowledged the public right of navigation, but the owners of the big private preserves ignored that. They figured that they owned the underwater land so they just started closing off all of the waterways to paddlers. The State did nothing to stop them.
It wasn't until Paul Jamieson, the retired English professor from St. Lawrence University started writing his famous paddler's guide for ADK (Adirondack Canoe Waters:North Flow) in the 1970s and 1980s that the longstanding existing right of public navigation came to light again. Through his research he began to read about this right. He wondered why landowners in NYS had been allowed to block waterways when in states all around NY they are open. Finally he started writing to DEC to bug them about this and he finally got the attention of the right people.
In 1988, DEC gave a contract to Pace Law School to review all of the pertinent cases relative to this right. The results left no doubt about the existence and nature of this right.
DEC tried to forge ahead progressively, with legislation and regulations and a flexible list of waters that are clearly navigable. But politics got in the way. Then the Moose River case started - and went on for nine years, until 2000 - giving everyone an excuse to put the issue "on hold."
Meanwhile, the people in DEC who were familiar with this issue and knew the common law on it, left for various reasons, including retirement. It wasn't until 2005 that it came to the fore again. A research paper on the subject, in q & A format, was presented in Lake Placid and it was published in 2006 by the Association to Protect the Adirondacks, which more recently was re-named PROTECT the Adirondacks. See the paper on PROTECT'S! home page on its website, under Publications.The information in PROTECT's brochure is 100% legally correct.
Meanwhile, some people on DEC's staff didn't get the word and were still stuck in the mode of sticking up for landowners who were in violation of the law by illegally blocking waterways. Erroneous material even crept into some DEC publications. people in DEC. However, this was straightened out in Ken Hamm's article on page 19 of the June 2008 issue of the Conservationist magazine. Ken works in DEC's Office of the General Counsel and had worked on the legislation and regulations in 1990 and 1991. Any erroneous interpretation in DEC's brochures are now being corrected.
The bill was re-introduced in 2006 and currently is numbered as A701, It is fully consistent with the description of this right as it appears in PROTECT's brochure and in the article by Ken Hamm.
The Sierra Club's letter of complaint about the illegal blockage on Shingle Shanty is very likely to get attention by DEC. There were 12 attachments to the letter. It is very well documented. The Sierra Club has 40,000 members in NYS. They probably have a few more votes than Brandreth.
Your approach to trying to revive a right that you yourself say the state hasn't recognized since Grover Cleveland's administration seems as sensible as, well, trying to revive Grover Cleveland. While you're at it, is there anything else you'd like to bring back from the Cleveland administration? I'm sure there are plenty of long abandoned, but not formally decommissioned roads running through private property (yours, perhaps?) that would make good hiking or ATV trails.
Why not, rather than dredging up long dormant common law and forgotten cases, focus your energy and the Sierra Club's on pushing through the legislation to freshly and definitively establish the right, or perhaps even attempt to work out an agreement with the landowners? My impression is that the legislation you briefly mention is an afterthought compared to picking costly and unproductive fights with the landowners and the DEC. As you say, the Sierra Club has a lot more votes than the Brandreths, but those votes matter much more to the legislature than they do to the DEC or the courts. Also, given the Sierra Club's pyrrhic victory on the issue the last time they went to court, I'd think it's time for them to take a fresh approach.
Just to reiterate, I agree with your stated goal of opening this route and others, but not the highly antagonistic and unproductive approach that has been taken for so many years.
According to the brochure frequently cited by navigation rights advocates, "Public Navigation Rights in New York State: Questions and Answers" - http://www.protectadks.org/data/images/stories/pdf_documents/public_navigation_rights.pdf -
"In order to be navigable-in-fact, a waterway must provide practical utility to the public as a means for transportation and travel."
The disputed route appears to be at least twice as long as the existing portage, and according to various accounts of the route, it takes at least an hour to paddle it. The state portage is only a mile long, so you'd have to be walk extremely slow or paddle extremely fast for the disputed route to be the quicker one. Also, this portage is at least half the length of the Rock Pond to Hardigan Pond portage on the Lila Traverse that this route is part of.
So, given that the disputed route is significantly longer and slower than the existing state portage, does it "provide practical utility to the public as a means for transportation and travel"?
I think the answer clearly is "no" and that's why some pretty hardcore paddlers (who had to endure the Rock Pond to Hardigan Pond portage) have been sure to make it sound like the existing portage is uphill both ways through a hanging bog, and have conveniently left out the above definition of what's navigable-in-fact in their writings about this disputed route.
The seminal 1866 Morgan v King case that spelled out the criteria for what constitutes navigable waters may have been handed down by the State's highest court in the Grover Cleveland era, but the fact remains that the same court repeatedly referred to that case in 1998 in its decision in the landmark Moose River case during the Clinton era. Anonymous may recall that the main result of the Moose River case was to affirm the public right of navigation and proclaim that recreational use is an adjunct to traditional commercial use and is a part of it.
Unfortunately, the 1866 Morgan v King decision did not "spell out" the criteria for determining what's navigable-in-fact, and that's why there's so much debate on the issue.
The 1998 decision did indeed affirm that recreational use can be considered in determining whether a waterway is "navigable-in-fact," and it didn't deny that a theoretical public right of navigation existed, yet despite all the time and money spent, the court did not rule that the Moose River was navigable-in-fact. The public can paddle that waterway some times of the year, and with various conditions and caveats, because the parties settled and that was the agreement they reached.
The case concluded in 1998 certainly made progress on the issue, but not as much as some navigation rights advocates like to claim.
You are wrong about Morgan v King. It most certainly does spell out the basic criteria for navigability, in detail. They couldn't be more clear. They are also cited prominently and repeatedly in ALC v Sierra Club. These decisions need to be read carefully by everyone who has an interest in this subject. They are summarized in PROTECT!'s brochure and in the DEC June, 2009 article in the Conservationist and they are the sole basis for the definition of navigability in A701.
There is nothing "theoretical" about the public right of navigation. It has existed in common law for hundreds of years. It also exists in other states all around New York where English common law was adopted when they became states.
The Court didn't make a decision about the navigability of the Moose, as did the Appellate Division in its decision, unanimously, because it determined that there were facts at issue on both sides of the question which required further argument in the trial court, i.e., the Supreme Court. ALC, Sierra, ADK and the State, as parties to the case, decided not to do that, for various reasons, and instead decided to leave that question for another day while settling out of court in a court-approved agreement that opens the river to public travel under very specific but also very reasonable conditions.
From everything that I have read, advocates for public navigation rights have stated the legal facts of this public right correctly, without exaggeration.Meanwhile, the landowners, particularly the big private clubs like Brandreth and the League Club, have been intransigent about protecting their privacy at the expense of the public's rights and with disregard for the fact that navigable waterways on their properties were impressed with the State-owned navigational easement long before they purchased them.
If the law and the Morgan v King decision were so clear, why hasn’t the DEC or other state authority (or even PROTECT!) simply published a list of ‘public highways’ flowing through private land? It seems like it would be a simple task if the law is as clear as you say it is. It’s been mentioned before that the DEC compiled such a list during the Cuomo administration, but didn’t publish it because of political considerations. If the law was clear and solid, what would a handful landowners have grounds to object on? And wouldn’t the noble public have much more political weight than a handful of evil landlords stealing public rights, especially during Cuomo’s time?
Can you cite a single instance where the DEC, a court, or other state authority declared that a route with no history of public use flowing through private land was navigable-in-fact and open to recreational paddlers? Again, if the law were so clear, such a determination would be quick and simple and you should be able to point to a lot of examples (and we wouldn’t be having this discussion).
On this issue, why has the DEC’s response to the Sierra Club letter been nothing more than “were looking into it” and why did they cut that portage around the route in the late 1990s when the Moose River case was coming to a close, and why have they maintained it ever since?
The Adirondacks will be in serious trouble if motorized access folks start pushing to open every single mile of old road they feel they might have a legal claim to with the same senseless fury, zeal and persistence.
Agreed that DEC should publish the list, as a draft subject to review and change, of waterways that clearly are navigable. The draft, prepared years ago in 1990-1991,was a composite based on observation by DEC staff of where people are boating, and by the statewide Canoe Routes Subcommittee (mostly guidebook authors) of ADK, and by American Whitwater. DEC already has legal authority to published the list in that , by law, Article 15 dredge and fill permits must be issued on navigable waterways. Okay. where are they? DEC's own regulatory staff needs this information. It's not just for paddlers. And DEC has the authority to publish regs for any matter in the ECL that needs it. DEC doesn't have to wait until the pending legislation is passed, which specifically directs them to publish the list as regs.
Also, they could publish the list as informal guidelines, very easily, without jumping through all of the hoops that are required when adopting regulations.
Out of the thousands of miles of navigable waterways in the state, there are literally a hand full that have declared navigable by the courts. Why? Because most of them are very obviously navigable and no dispute arises about whether they are or not. Just like driving down a road, you don't need a court to tell you that it's travelable. You'll know soon enough whether or not it has the capacity of being traversed.
Yes, the common law is clear, but only to those who can dig out the cases and interpret them and understand how they fit together. It's hard for landowners and paddlers alike to do this. That's why the common law needs to be set forth in a single statute, where people can find it - A701.
DEC answered the Sierra CLub two months after they received the complaint. That's par for the course with the state bureaucracy, especially when DEC lost 800 positions during the Pataki Administration and now they are losing moree under Paterson. THe Sierra Club is lucky that they got any answer under the circumstances.
The Sierra Club, as they said in their complaint letter, followed DEC's own enforcement guidelines? DEC is going to look very silly, after having a reasonable time to complete its investigation, if they don't bring the matter to a conclusion.
Again, the trail in the Forest Preserve is just an alternate route to the Mud Pond-Shingle Shanty waterway route. Nothing more. It has absolutely nothing to do with whether or not the latter is navigable-in-fact, a public right-of-way encumbered with the State navigation easement.
There are so many Anonymouses on here now that it is tough to keep track of who said what, but the one about 5 or 6 posts back at 10:42 says that he agrees with the Sierra Club's goal of opening the Shingle Shanty route, but doesn't like the "antagonistic and unproductive approach that has been taken for so many years."
He has got to be kidding! These big landowners have had their navigable waters posted as "closed" for more than 100 years without the State or anyone else doing anything about it. Then Paul Jamieson asked DEC to determine whether the right of navigation exists or not. DEC hired Professor Humbach to do the legal research, which led to a positive conclusion, and then drafted legislation and the list of navigable rivers. Governor Cuomo's staff blocked both, shutting DEC down. The legislation got in the back door anyway, as the Hoyt -Sheffer bill, which passed the Assembly in 1990 and 1991, but was blocked in the Senate by Betty Little's predecessor, Ron Stafford, at the request of the big landowners in the Adirondack Landowner's Association - Brandreth, the League Club, etc. - about 70 of them who are members of ALA.
Does any of this sound very confrontational or antagonistic or unproductive so far? And if so, who was confronting whom?
The League Club sponsored a research paper in mid-1989 by a law professor who found that the public right of navigation certainly, without question, exists. His ONLY concern was that the reference to recreational use
in the Hoyt-Sheffer bill might exceed traditional use. That concern was reasonable, even though there was some case law decisions in the common law that addressed recreational use which he apparently overlooked in Humbach's report. (These minor cases were not as good, though, as having the State's highest court decide that issue very directly in 1998.)
Tom Kligerman's trip down the Moose in June, 1991 may have appeared to some to be confrontational and "antagonistic," but in truth it was very carefully planned to provoke a court test with a landowner with deep pockets who might take the case to the highest court, to find out if the public right existed and if recreational use was included. Kligerman and the Sierra Club was tired of waiting for the State to get its act together and pass the bill and get out the list of rivers. He had gone through several other illegally blocked rivers in 1990 and 1991.
Then after the 1998 decision and the court-approved settlement by the parties in 2000, nothing happened. Bill Hoyt had died during the 9-year Moose case. The bill was not re-introduced by the State or anyone else, even though the recreational use matter had been definitively settled. Without passage of the legislation that would have described the public right the public was still as confused as they always had been about what navigation rights meant.
The ALA members were as happy as pigs in mud. They figured that the bill was dead, the case was over, and they could resume business as usual, as if the Moose case never happened. They kept on doing what they always had done best. They kept on blocking the rivers. And when the exact same bill that passed the Assembly in 1990-1991 was reintroduced by Pete Grannis in 2006, at the request of the Sierra Club, the ALA thought up all kinds of new things that were wrong with it. They smeared it. They lied about it. They twisted and distorted the meaning of every word and every sentence. They did a good hatchet job, even better than they did on it earlier, with Ron Stafford. Betty Little couldn't back away fast enough even though this bill does nothing more than make clear to her constituents the nature of the existing rights that they should be able to enjoy. They fooled her good - and they are still doing it, taking full advantage of the present chaotic conditions in the Senate.
So, the Sierra Club, for the first time since 1991, which then had been the first time ever, finally made another move by following DEC's own enforcement procedures and complaining to DEC very publicly, so that DEC couldn't bury the whole thing, about Brandreth's long-term illegal blockage of Shingle Shanty.
Is there really anyone out there, other than Anonymous 10:42, who thinks that the Sierra Club's taking of peaceable and lawful action of some kind every couple of decades to move this whole issue to a final resolution is "antagonistic and unproductive?"
The Sierra Club, as everyone knows, is a public membership conservation nonprofit organization. The wonder is that it has been so patient, for so long, and that it hasn't acted sooner.
Then after the 1998 decision and the court-approved settlement by the parties in 2000, nothing happened. Bill Hoyt had died during the 9-year Moose case. The bill was not re-introduced by the State or anyone else, even though the recreational use matter had been definitively settled. Without passage of the legislation that would have described the public right the public was still as confused as they always had been about what navigation rights meant.
The ALA members were as happy as pigs in mud. They figured that the bill was dead, the case was over, and they could resume business as usual, as if the Moose case never happened. They kept on doing what they always had done best. They kept on blocking the rivers. And when the exact same bill that passed the Assembly in 1990-1991 was reintroduced by Pete Grannis in 2006, at the request of the Sierra Club, the ALA thought up all kinds of new things that were wrong with it. They smeared it. They lied about it. They twisted and distorted the meaning of every word and every sentence. They did a good hatchet job, even better than they did on it earlier, with Ron Stafford. Betty Little couldn't back away fast enough even though this bill does nothing more than make clear to her constituents the nature of the existing rights that they should be able to enjoy. They fooled her good - and they are still doing it, taking full advantage of the present chaotic conditions in the Senate.
So, the Sierra Club, for the first time since 1991, which then had been the first time ever, finally made another move by following DEC's own enforcement procedures and complaining to DEC very publicly, so that DEC couldn't bury the whole thing, about Brandreth's long-term illegal blockage of Shingle Shanty.
Is there really anyone out there, other than Anonymous 10:42, who thinks that the Sierra Club's taking of peaceable and lawful action of some kind every couple of decades to move this whole issue to a final resolution is "antagonistic and unproductive?"
The Sierra Club, as everyone knows, is a public membership conservation nonprofit organization. The wonder is that it has been so patient, for so long, and that it hasn't acted sooner.
Maybe someone can answer this question for me about the Sierra Club's letter. How has Brandreth gotten away with doctoring its deed for all of these years to keep on claiming more and more recreational rights, even to the point of illegally claiming that they own the navigation right of way that the State holds in trust for the public?
Isn't anybody watching them when they file these deeds? Why didn't the Nature Conservancy say something? This is quite a racket - stealing the State's property, and no one says anything!
There's no doubt in my mind that the activists very well could be a good case here, but that remains to be seen and certainly doesn't justify the level of anger and vehement confidence displayed by some. It seems that if some of the commentators on the issue don't get what they want via legal avenues they might feel it is a gross injustice that would justify other action. Some of the more responsible voices on the issue might want to reiterate that there are still questions to be answered, and an unfavorable - but reasonable - decision on this route certainly is within the realm of possibility.
To start, "navigable" (which this route is) does not equal "navigable-in-fact" which would establish the public right of way. Many keyhole waterways are navigable, but no one claims that they are "navigable-in-fact" under common law and therefore the public has a right to access such waterways. Unfortunately, a lot of the writings on the issue have been sloppy about keeping this distinction clear. To be "navigable-in-fact" a route must have "practical utility." I have yet to see a good explanation of what constitutes "practical utility" but it seems that some element of public need is involved. The fact that there is a shorter, and in most cases, faster portage that has been used without a problem for years certainly raises the question as to whether there is a public need for the disputed route. I think a lot of time is going to be spent trying to figure out what exactly practical utility means, and defining it in a manner that continues to exclude keyhole access as no one contends that is supported by the common law.
Something that isn't mentioned but which might end up being part of the equation is that it is conceivable that "the public" might be best served by excluding public access. Increased traffic inevitably has negative environmental consequences whether it is via the spread of invasive species, the disturbance of nesting birds, or other impacts. Of course none of us have phragmites or loosestrife seeds on our boots or boats, would disturb a nesting bittern or other species, or would consider dumping a bucket of non-native fish into a waterway, but who knows about the "other people." Under private ownership that aggressively excluded the public, Little Tupper Lake held a healthy population of heritage strain Brook Trout, but soon after the state acquired it and public access was established, Largemouth Bass were introduced and have devastated the native Brook Trout.
Both sides need to keep level heads on this issue, stick to the facts, and keep in mind the possibility of an unfavorable - but reasonable - outcome.
It is interesting that you invoke the myth of "The Others," those who are different from us, not as environmentally "neat" as us. Them against us. Divide and conquer is always a good ploy. Raise fears about "The Others." Isn't that where Hitler started? Not good thinking.
Makes about as much sense as leaving "the public" out of "public access" on a public right of way on navigable or, to use the legal term meaning essentially the same thing, navigable in fact waters that the State holds in trust for the people. Do you really thing that someone's right to freely navigate on a navigable waterway should be abrogated as a result of a vague suspicion on the part of some landowner that the person might litter or dump bait fish in a stream stocked with native species? That's the kind of bunker mentality that's at the root of the paranoia that Brandreth, the League Club and the Aditondack Landowner's have been expressing all along. It's time for them to be called on this.
"Think, not "thing."
Anyone who carefully reads Morgan v King or ALC v Sierra Club would know that "practical utility" is specifically defined as a river (or other waterway) that is susceptible to use or useful for trade or transport.
It is difficult to discuss these issues unless one has read and understood the law. Flying by the seat of one's pants and just expressing poorly founded or unfounded opinions doesn't cut the mustard. f
Godwin's Law rears its head! http://en.wikipedia.org/wiki/Godwin's_law
The Sierra Club should just got to the court to get a declaratory judgment that this route is navigable-in-fact and be done with it. This should just be a perfunctory formality because this route is so obviously navigable-in-fact. Although the DEC can negotiate with Brandreth and the Sierra Club and might be able to resolve the dispute that way, they can't take any legal action (either on the side of the Sierra Club or Brandreth) until they have a ruling that it is navigable-in-fact. From Phil Brown's appropriately titled op-ed in the Albany Times Union, "Paddlers Face Murky Waters" (http://www.timesunion.com/AspStories/story.asp?storyID=810256&category=OPINION):
Just because I found the waterways navigable in the common sense of the word doesn't mean they are navigable in a legal sense. The law takes into account such questions as: How many weeks or months out of the year is a waterway navigable? Is it part of a longer canoe route? Is it navigable under natural flow conditions?
Kenneth Hamm, a lawyer for the state Department of Environmental Conservation, tells me these are questions that only a court can answer after looking into the facts. Since no judge has yet plumbed the depths of the Mud Pond outlet or Shingle Shanty Brook, he can't tell me whether they are navigable under the law.
It baffles me why so many commentators and the Sierra Club have resorted to all of the over-the-top hyperbole when everyone agrees there's a good case here. Phil Brown has done such a good job of presenting the issue, and advocating for the same outcome as everyone else, but in a reasonable and respectful manner. There's no need to vilify the landowner, exaggerate the claims and turn a reasonable legal dispute into a battle of good versus evil.
Why should the Sierra Club go to great expense to go to court when DEC's enforcement memorandum states that the correct way to proceed is to document the alleged violation of the law and report it to DEC? It's DEC's job to investigate and, if the violations are true,then enforce the law, along with the AG.
"Navigation" versus the legal term "NIF." We all know what you mean. You are not wrong. We promise not to yank your chain anymore.
Ken Hamm is wrong on this if that is literally what he said, although we don't know the context of the discussion and I expect that if it was put a different way to him he also would say that any paddler can determine whether a waterway meets the legal criteria for being NIF. Most of the waterways in the state that paddlers use are paddled that way - they are obviously NIF. A paddler may read in a guidebook that a particular waterway is navigable (not NIF) or he may have heard that it is navigable or he may see others using it or he may just go there and determine that it looks navigable, so he goes ahead.
It is ONLY when a landowner contests in court that it is NIF, as Brandreth MIGHT (unwisely, in my opinion) decide to do, despite the fact that people documentably paddle the Mud Pond-Shingle Shanty route from the spring, through the summer and fall with no problem, that a court decision comes into play, with a trial on the facts of navigability, as was avoided by the settlement in 2000 by the parties in the Moose case.These situations of having a court declare a waterway to be NIF are extremely rare, considering the thousands of miles of waterways in NYS that are NIF.
If DEC enforces the law and Brandreth goes to court against the State, my opinion is that they will waste a lot of money - and lose. They don't have a leg to stand on.
Anonymous,
Please let us know where we can find the DEC enforcement memorandum you are referring to.
The Sierra Club should undertake the legal expense because they are the party that has made this a legal issue! Furthermore, if this route is so obviously NIF as you’ve stated numerous times, this shouldn’t be much of a problem or expense. Or is the Sierra Club’s strategy just to bully the landowner and the DEC, without putting their money where their mouth is? Or does the Sierra Club think taxpayers are supposed to pick up the legal bill for this?
If Brandreth wanted to make it a legal issue by pursuing the people who, as you say, have paddled the “Mud Pond-Shingle Shanty route from the spring, through the summer and fall with no problem” for trespass, they’d have the burden of taking the issue to court for a ruling as to whether or not the route is navigable-in-fact. But they haven’t.
I agree that it would be unwise for Brandreth to go to court to determine that this is NIF in order to pursue trespassing charges. But I also think it was unwise for the Sierra Club to assert that this route is NIF (even though they never even bothered mentioning the term in their letter), given, as you say, people have been taking the “Mud Pond-Shingle Shanty route from the spring, through the summer and fall with no problem” either in terms of navigability or legally – there are no “illegal blockages” (physical barriers preventing people from taking the route), and Brandreth has never pursued any of these people for trespass.
Having picked this legal battle and made the allegations, the Sierra Club should certainly be ready and willing to take on the cost of proving their legal case. As they are so certain they are on rock hard legal footing and Brandreth doesn’t “have a leg to stand on” I don’t see why this should be a burden for them.
Interesting thoughts, but that's not the way the process works. When you see something that's obviously a violation of the law, someone breaking the law, it's SOP to call the cops, tell them the story and let them do the rest. That's what Sierra did - and that's exactly what they should have done. And that's what the DEC enforcement guidance memo says that should be done.
So, while you may think that Sierra should have gone after Brandreth in court, others may say that would be silly under the circumstance, which are that other, far cheaper avenues are open to them.
Brandreth won't go after Phil Brown and John Caffry or anyone else for trespass either not only because, as you say, Brandreth has never pursued trespassers, but also because they don't have a case. It's not trespass, according to the Court of Appeals, if one "honestly believes" that one has a right to be on the property in questuion. Also, if Brown or Caffry had been confronted by Brandreth while on the Mud-Pond-Shingle Shanty route, and then left the property immediately (completing their trip on this through-route in rapid order, that's not trespass either. So, Brandreth shouldn't waste their time and money, or worse, start a lawsuit that they would lose. The trespass charge would quickly escalate into a full blown court contest because it is quite likely that the State would come in on the side of Brown and Caffry.
As I have said before, the most likely scenario is that DEC will issue a ticket and summons, with the full support of the AG whose staff will represent DEC, Brandreth's bunker mentality will go into full gear and they will fight it in court. Brandreth will feel forced to take it as far as they can go and in the end all they will have to show for it is a lot of bad PR. The route will be open because there is absolutely no basis for it not being NIF.And along with that they will have to change their phony deed in which they claimed all of the State-owned navigational easement for themselves.
If I was Brandreth's mouthpiece, I would advise its principals to immediately cop a plea on whatever terms they can get, if DEC comes after them. It would save them time, money and from being badly embarrassed.
If by "the process" you mean making exaggerated claims that you have no intention of pursuing in any court other than that of public opinion, then indeed, I guess I don't understand how the process works. The Sierra Club should certainly know that until it is determined in a court of law whether or not this route is NIF, no one is doing anything clearly in "violation of the law" and nobody is "breaking the law." This applies to both Brandreth and paddlers. And if this was anything other than a press release meant to inflame and sway public opinion, the Sierra Club would have at least mentioned the term "navigable-in-fact" (but I suppose that would have confused the public) and would have refrained from the numerous exaggerations in their letter, starting with obvious factual ones like "blockage." Note that Phil Brown's writings make the same basic point (that the public might have a legal right to take the route), and advocates the same position (that the public should be unambiguously allowed to take the route), but does so in what I consider a fair manner as far as advocacy goes, that steers clear of much of the inflammatory rhetoric.
You still haven't pointed us to the DEC enforcement memorandum you keep on referring to (perhaps it isn't even public), but my guess is that it says something along the lines that on waterways that MIGHT be navigable-in-fact, the DEC can't take any action until a court determines whether or not it is NIF. This would obviously be directed at landowners that might want to pursue trespassing charges, but it would also apply to any party requesting action from the DEC regarding one of these disputed routes.
Apparently Brandreth didn't think pursuing trespassing cases would be worthwhile given the high costs regardless of the outcome. But given that they are likely seeing much more use of the route due to the recent publicity, and their reputation is under attack, they might decide a court case would be worthwhile.
It's frequently stated that landowners gain the most from this ambiguity regarding what's NIF, but paddlers also benefit - if they just choose routes that look like they MIGHT be NIF, they can be assured that the DEC won't respond to trespassing complaints from landowners, and it is extremely unlikely that the landowner would sue them from trespassing - the last time that happened was when the Sierra Club set out to provoke a test case (and did so complete with press releases), and the Adirondack League Club took the bait. It's doubtful that every single disputed waterway that looks like it might be NIF would be found in a court of law to be NIF. With the current ambiguity, every single one of those waterways is open to the public for all practical purposes.
The DEC enforcement guidance memo is an internal document. However, it is quite possible that you could get a copy under a Freedom of Information Act request.
As I have repeatedly said, we will see what happens when and if DEC serves papers on Brandreth to remove the blockage (nasty word, but I can't think of another one for a cable decorated with No Trespassing signs, a rope with same, game cameras, etc.) and if Brandreth responds with a suit against the State. If none of that happens, of course Sierra could take Brandreth to court if they want to go to the expense of pursuing this that way.
If you say so, it must be true that the tone of Sierra's letter is confrontational. I thought it was pretty factual and straightforward. Mostly it presented the documentation that DEC would need for an investigation, including a detailed description of Phil Brown's trip. In the Moose case, Sierra wanted ALC to know they were coming, in order to provoke a test case. Precipitating a confrontation to, as you say, get ALC to take the bait, was exactly the point. So why not a news release?
We both have better things to do, I hope, than repeating the same arguments, over and over.So, thanks for the dialogue. Peace!
Amen - we can argue about this some more after there are some new developments.
The Sierra Club and others could call "a cable decorated with No Trespassing signs, a rope with same" just that and not call it something that suggests that there is an actual physical barrier keeping people from taking the route.
I wasn't suggesting that there was anything wrong with the Sierra Club issuing press releases prior to their Moose River trip, but rather that you have to work extremely hard to get a landowner to legally pursue you on one of these routes. Paddlers just passing through have little to worry about.
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