Wednesday, November 21, 2012

Navigation Rights Arguments Heard in Fulton Court

Was Adirondack Explorer Editor Phil Brown trespassing when he paddled through private land abutting the state-owned Whitney Wilderness in 2009?

Or did he have a right to be there because the waters he canoed are navigable and provide a useful link between parcels of public land?

The question rests with State Supreme Court Justice Richard T. Aulisi, who heard arguments on the case Friday in Johnstown.

Brown was sued for trespass by the Friends of Thayer Lake and the Brandreth Park Association for heading down a privately owned two-mile waterway that includes Mud Pond, Mud Pond Outlet and a portion of Shingle Shanty Brook. Their lawyer, Dennis Phillips of Glens Falls, argued that giving the public access to the waters—which he argued were barely floatable by anything but a lightweight craft—would be tantamount to stripping landowners of their rights. Phillips maintains that a privately owned waterway is open to the public only if it is useful for commerce.

Brown’s attorney, John Caffry of Glens Falls, and Assistant Attorney General Kevin Donovan contended that Phillips’s reading of the law was incorrect. Caffry argued that so long as the waters were navigable for trade or travel, Brown and others have a right to ply them. Caffry said the plaintiffs’ waters are part of a much longer waterway, most of which is owned by the state.

Aulisi probed Phillips’s argument that recreational use is not enough to declare a waterway open to the public. “What about the notion that tourism is commerce?” he asked Phillips.

Phillips agreed that tourism and commerce are partners, but he pointed out that the state has purchased a substantial amount of land in the Adirondacks to provide recreation to paddlers, hikers, and others. He said there is no need for private landowners to provide additional opportunities for recreation. “I do not think recreation by itself, somebody having fun, or having an experience, is enough to trigger the … exception to the idea that a person’s land is his domain,” Phillips said.

The case was heard in the Fulton County Courthouse, which opened in 1772, making it the oldest existing courthouse in the state. All three parties have asked Aulisi to decide the matter without a trial. Aulisi did not indicate whether he would do so. A decision could be months away.

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13 Responses

  1. T.Barber says:

    Was there a settlement in a case where kayakers/canoeists were accessing Ausable Chasm’s waters?

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  2. Marco says:

    “I do not think recreation by itself, somebody having fun, or having an experience, is enough to trigger the … exception to the idea that a person’s land is his domain,”
    Yeah, I agree. But, we are not discussing land here. Except for the short portage around a man made dam (obviosly owned by the group and allowd under the navigable waters law) there was NO NEED to walk on land. Mearly sticking to the water and associated high water mark would have been enough.

    Example: I have paddled through waters that have private land around them. In every case, the land owner was fairly interested in what I was doing. Most waved and exchanged pleasentries, some slept on lounge chairs comfortable in the knowledge that they didn’t need to worry about somebody making a landing and hiking through his back yard. This is illegal, minimally. Besides being rude, trespass is never welcome. Just as landowners expect protection and respect for their property, are expected to defend it themselves, I expect the same rights to apply to people on a navigable waterway.

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    • Solidago says:

      From what I’ve read, Phil and other paddlers use the property owner’s trail to get around a section that can’t be paddled, instead of staying within the bed of the stream. I guess no one likes getting their feet wet!

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      • Marco says:

        Yeah, I had heard that. Mr. Brown should have stuck to the water as close as possible. But, climbing a cliff face with a canoe is neither safe or feasible around a falls (Raquette River.) The portage does not negate the water from being navigable. Lining and buswacking along rapids can often be a difficult task headed upstream, worse downstream in low water(Vermont.) And, lining through waste deep, sucking mud can be impossible in low water. Again, portaging is allowed, as in the case of the dam. That does not effect the designation as navigable waters nor consideration by State Supreme Court Justice Aulisi. Some waters and canoe routes require long portages (Sarranac River for example, I didn’t care to take my stripper down the rapids…I hiked about 10 miles to town.)

        I have put a couple miles on the half dozen canoes I have had. I don’t think I have ever worried about wet feet. My feet are ALWAYS wet…and pruned…

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        • Solidago says:

          I think the standard on streams that are public highways is that paddlers can leave the bed and banks when absolutely necessary for safe passage (such as in the circumstances you describe).

          There is no indication that leaving the bed and banks is necessary here though.

          Even if it is, the probability that the least intrusive route for safe passage just happens to correspond precisely with the property owner’s trail is pretty low. The trail is probably the easiest and most convenient route though!

          And how exactly does a paddler know where a trail on private property leads anyway? It isn’t like they’re handing out maps just yet. Such poking around on private property, I mean “scouting,” seems to be a rather liberal interpretation of “paddlers rights.”

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          • Marco says:

            Solidago,
            Yeah, I agree that this was a pretty clear case of trespass, as I wrote before. Unfortunatly, this has the effect of allowing State Supreme Court Justice Aulisi a rather difficult set of choices.
            He can fine Mr. Brown for trespass and shelve the navigaible rights issue.
            He can fine Mr. Brown for trespass and also rule for navigagition of the waterways.
            He can fine Mr. Brown for trespass and rule against navigable rights.
            He can drop the trespass charge and shelve navigable rights.
            He can drop the trespass charge and rule for navigable rights.
            He can drop the trespass charge and rule against navigable rights.

            By trespassing, Mr. Brown allows the courts a way out of ruling on the navigble rights issue.

            I agree that the trail is probably the easiest and most convenient route, though. I have been in the area, and seen the old roads there…MUCH easier than bushwacking with a canoe. But, I suspect that Mr. Brown had full intentions of raising the navigable rights issue with the courts. Whether this will hurt the case or not, is yet to be seen. Clearly the water is navigable.

            I would rather see a time limit imposed on the navigable rights to allow for the good service to the state rendered by the landowners. Perhaps 50 years from the date of the inception of the Whitney Wilderness? This will allow the current generation of landowners to use the property inimpeded, but, also fulfill the need for guarenteeing navigable rights, eventually.

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  3. Phil Brown Phil Brown says:

    T. Barber, we ran a story a few years ago saying paddlers won the right to go through the chasm.

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  4. Bill Ott says:

    I have seen so much abuse of the marked public campsites on the Oswegatchie River that I can understand why public landowners would not want so called backwoods-people traversing their land. Trees half chopped down by woods-be Paul Bunyons. Dirty toilet paper at campsites near the Inlet on the Oz. Trash left in campfire rings. Damaged clothing left as gifts at shelters. Garbage left every-and-any-where. Stuff from a hundred years ago by people like them. (Do you think the can that held a meal of baked beans goes away in even 25 years?) But I still think that navigable waterways between two sections of public land should be accessible if landowners property rights are respected. (You can see how I go back and forth here.) These stretches of shallow water should be shut down if people disrespect private property, but who is going to shut them down, why and when? How many rules can we make, and where are the people to enforce them? I always try to see both sides, and I do not see a practical answer to this. If there is no way to protect private property rights with public enforcement, then the only protection for the private landowners is to keep access closed. People like me are asking for access, and owners want protection. As much as I want access, I think protection comes first.

    Bill Ott
    Lakewood, Ohio

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  5. Paul says:

    Kenneth, thanks for adding some additional comments on this case. It sounds like the judge may be “interested” in the defendants argument.

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  6. Solidago says:

    Marco, I agree that there is a boat load (he-he) of different ways the judge could rule. If Phil is found guilty of trespass because he was feeling a little bold and lazy at that moment, I’m pretty sure all sides are going to be extremely disappointed and protest.

    Fortunately all parties seem to be urging the judge to tackle the question of whether waters in New York that can be traveled by nothing more than small boats such as canoes and kayaks are public highways under the common law.

    Your idea about phasing in public use is interesting, as is Bill Ott’s suggestion that steams like this should be closed if problems arise. Unfortunately common law public highways are forever (not even the state can sell or extinguish the public’s right in them), and the people pushing this issue are adamant that there be no consideration for affected property owners or even the environment(!).

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    • Marco says:

      Yeah, I agree with Bill’s comment, too. I have seen the Oswagatchie having been up there a few times. He is correct, the sites are often needlessly trashed. I have spent many hours with my daughters cleaning up trash and burrying toilet paper (and feces) from people that were, to put it gently, too uninformed to do it properly.

      “Fortunately all parties seem to be urging the judge …” Yes, I certainly agree that a ruling is needed, if only to prevent the types of cases we are seeing with this one. I do not believe that Mr. Brown was being bold or lazy. Rather, I believe he was doing this to invite a ticket that would cause the exact reaction he is getting in court, to incite the courts to action on the Shingle Shanty Brook waterway. But, that sort-of leaves the question open…despite the urging of outside parties. I tend to obey laws, and signs, even if I don’t understand the reason. I believe the landowners have illegally blocked the waterway. But, they should be simply allowed to remove the cables and signs with no OTHER legal obligations.

      Personally, I commend Mr. Browns action in hiking a pre-existing pathway with his boat, if the stream was damaging to his canoe. Legal? Well, probably not. He could have stuck closer to the stream, as close as was feasable. As a bit of an environmentalist, I would not suggest this, though. The damage to the stream bottom, and/or, the banks would be far more than simply using the existing road. I agree that Mr. Brown simply took the course of least resistance, but, I would not term his actions as lazy or bold.

      He was bushwacking, he would be unintelligent not to take the easiest course. I have done too much bushwacking with a canoe in the ADK’s, Vermont, Maine, etc to misunderstand his action or reasons for his actions… bushwacking is reason enough for hiking the road. But this is sometimes not legal and ticketable.

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      • Solidago says:

        Marco, I pick up other people’s trash, but their sh!t is another matter! You’re a better man than I am. And folks wonder why property owners are reluctant to open their places to the general public – in this case forever, regardless of what problems might develop a few years or decades out. Human feces could be the least of it.

        If one wants to minimize his environmental impact on this area, the obvious solution is to just use the well traveled and much more direct state trail to reach the exact same spot on the stream.

        Hopefully we’ll find out whose beliefs the law coincides with. Until the appellate division ruled unanimously against them in 1995, the ‘paddlers rights’ crowd and the state argued just as passionately that they had a right to paddle dead end streams and ponds.

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