Monday, November 19, 2012

Private Property:
Oliver’s War, Brandon Park and Paddling Rights

If New York State’s highest court issued a ruling tomorrow that said, “We are mindful that this interpretation deprives the public at large … of the pleasure and profit of fishing and hunting in a very large portion of the Adirondack forest, and gives to men of great wealth, who can buy vast tracts of land, great protection in the enjoyment of their private privileges,” what would your reaction be? Indignation? Outrage? Rebellion? Would you march on Albany? (Or here’s a novel solution … secede!)

Well, relax, there’s nothing to worry about. That ruling was issued 109 years ago and has been in place ever since. The story comes to mind for two reasons: the recent offer for sale of Brandon Park, and the lawsuit against Adirondack Explorer Editor Phil Brown for trespassing.

The court ruling in 1903 applied to an ongoing dispute in the northern Adirondacks on William Rockefeller’s vast estate at Bay Pond, which still exists in reduced size, but once encompassed what is now Brandon Park. In the 1930s, the Brandon Park section was purchased by Donald Ross and has since been owned by the duPont Ross family.

While multiple William Rockefellers have owned property there for a century, the original purchase was made by William, the brother of John D. Rockefeller.  At the time, J. D., the world’s (some say history’s) richest man, had begun to focus on philanthropy, while William operated the family business, considered by some to be the largest, most powerful corporation in history.

As powerful as the Rockefellers were, not everyone bowed to them, and in the village of Brandon, woodsman Oliver Lamora was the most prominent holdout. A Civil War veteran with a large family, Lamora refused to sell his property and ignored the No Trespassing signs on Rockefeller’s land.

The local confrontation grew into a national debate over individual rights, property rights, and rich versus poor. The entire story is covered in Oliver’s War: An Adirondack Rebel Battles the Rockefeller Fortune, a book that I wrote and published in 2007. It won the Adirondack Literary Award for Best Book of Nonfiction, and it’s one of my favorite true stories of standing up against near-impossible odds.

A key point in the Rockefeller-Lamora court battles, which lasted a decade, was the right to pursue fish that swam up a stream entering private property. The first thought is that privacy rules, but consider this: if public tax dollars were used to operate fish hatcheries, and the fish from those hatcheries were placed in a stream that entered private property, would you have the right to pursue those fish?

In the case of hunting, it is generally accepted that game animals raised for hunting purposes, or game animals benefiting (?) from tax-supported programs, might actually wander onto private estates. It’s pretty much a random thing that is accepted.

However, fish are different. Their “wandering” can follow only one path: the course of a stream or river. In the Adirondacks, these are often bodies of water shallow enough to wade in, thus making it unnecessary to trespass on land. But Rockefeller insisted that the riverbed was also off limits.

It was a long struggle waged for many years and featured multiple, diverse rulings, several of them against Rockefeller. But money usually wins, no matter what the argument, and despite the issues, money is what really made the story catch on. Here’s why.

Rockefeller’s resources were beyond belief. A multibillionaire, he had unlimited lawyers at his disposal. To further irritate Lamora, Rockefeller used his government influence to close the Brandon post office and move it to his private property at Bay Pond, forcing Oliver to walk miles to get his mail. When Lamora fished along the railroad tracks, Rockefeller bought the rail property. And on it went.

Lamora, on the other hand, was a pauper whose case only survived because of popular support and a sympathetic country lawyer. He had nothing else.

Having nothing else gives you little chance of winning. In 2005, the Supreme Court ruled that the eminent domain law, primarily intended for public use projects (schools, roads, airports), could also allow land (or even your lifetime family dwelling) to be taken for economic development projects that were expected to improve a community. Could they really do that?

Just ask the people of New London, Connecticut, where the law was used to sever people from their homes so that builders could build. Private properties were condemned, including a recently renovated house. One family had lived there since 1895, and many homes on the 80-acre site looked great. Citizens fought it for years, but were forced to surrender their land. And the improvements? Never happened. Pfizer (the key player) pulled out, financing fell through, and the properties today remain vacant lots. The latest plan? They now want to make it a … neighborhood!

Somehow a high court can rule that way, but can also prevent public citizens (fishermen) from pursuing fish that the fishermen themselves paid to create for their own angling pleasure. In either case, if you have bottomless pockets (like Rockefeller) or teams of lobbyists (like developers), you can get what you want because you pay to write the laws that govern what you’re doing. In simpler terms, it’s the fox guarding the henhouse.

And if you (fishermen and homeowners) don’t have bottomless pockets or lobbyists, you’re on the receiving end in almost every case. It’s never hopeless, but as much as we enjoy the occasional stunning victory of the little guy over big business or big money, the key word is stunning. It’s only stunning because it’s so damned unusual.

Woodsmen once freely roamed the Adirondacks. They began guiding visitors to great hunting and fishing experiences, and eventually, the rich “sports” who returned so often decided to buy a piece of the mountains for their own use. The great allure of the outdoors had once filled guides’ pockets with dollars, but it now came back to bite them. No one had foreseen the possibility of huge estates cutting off the public from scenic mountain views, waterfalls, hunting, and fishing―things that people had daily enjoyed. The ruling in favor of Rockefeller solidified the practice into law. They love to call their properties “parks,” but these are parks where no one is invited in.

Phil Brown’s trespass case bears parallels to the Lamora battle. Wealthy timber men once ruled the north woods, supported by laws that allowed them great latitude and designated rivers as highways. But today’s wealthy people squeeze the definition to where brooks and streams are now considered private drives. Whatever suits their purpose.

I’m not advocating this, but the thought occurs to me―what if some smart lawyer applied that eminent domain law to the private estates, which would be worth millions in tourist dollars if they were open to the public. No, you say? But what about the greater good of the community? Seems like a pretty strong case could be made.

In 1903, New York’s courts weren’t too concerned about the greater good―they even said their own pro-Rockefeller ruling was bad for “the public at large” … but money still won, and Rockefeller’s private property was preserved. Nationally, the reverse was done in the New London case … private property lost, and again, big money won. It seems the resources behind the case matter more than the case itself.

But times have changed, and perhaps money is now on the other side of the argument. Tourism, hiking, canoeing, mountain climbing, and the like are a large part of what drives the region’s economic engine. Spending tons of money to attract visitors to the Adirondacks, only to ban them from some of the best streams and mountains, seems counterproductive.

Like Lamora and the fish, we’re paying to promote something, but the full benefits are locked away behind fences, beyond our grasp for more than a century.

Photos: Bay Pond; cover of Oliver’s War.

Lawrence P. Gooley

Lawrence P. Gooley

Lawrence Gooley, of Clinton County, is an award-winning author who has hiked, bushwhacked, climbed, bicycled, explored, and canoed in the Adirondack Mountains for 40 years. With a lifetime love of research, writing, and history, he has authored 16 books and more than 100 articles on the region's past, and in 2009 organized the North Country Authors in the Plattsburgh area.

His book Oliver’s War: An Adirondack Rebel Battles the Rockefeller Fortune won the Adirondack Literary Award for Best Book of Nonfiction in 2008. Another title, Terror in the Adirondacks: The True Story of Serial Killer Robert F. Garrow, has been a regional best-seller for four years running.

With his partner, Jill Jones, Gooley founded Bloated Toe Enterprises in 2004. They have published 65 titles and are now offering web design.

Bloated Toe’s unusual business model was featured in Publisher’s Weekly in April 2011. The company also operates an online store to support the work of other regional folks. The North Country Store features more than 100 book titles and 60 CDs and DVDs, along with a variety of other area products.


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20 Responses

  1. Peterh says:

    I thought we had this cleared up: According to statistics that were published by the Almanack, the tourism dollars are largely concentrated in Lake George and Lake Placid, and there are very few tourists who recreate in wilderness areas. The type of tourists who do use the wilderness, other than second home owners, are recreational lessees.

    I keep reading about huge tourism dollars being attracted to the wilderness, but have seen nothing to support this concept.

    Hot debate. What do you think? Thumb up 6 Thumb down 8

    • Moose says:

      Where are those stats? study? Find that hard to believe when I see hundreds and hundres of cars at the LOJ every weekend. Any way, there are reasons to protect landas wilderness more important than money, don’t you think? Love to see Cougars and Wolves return.

      Like or Dislike this comment: Thumb up 1 Thumb down 1

      • Solidago says:

        I agree that the single-minded focus on setting aside wilderness to generate money is a little ridiculous. I wish more focus would be on the importance of setting aside wilderness for its inherent value, and for the benefit of species other than Homo sapiens.

        Like or Dislike this comment: Thumb up 2 Thumb down 2

  2. Paul says:

    Protect! has a new writeup on their website where they try again to make the case for economic impact from forest preserve land. But they focus again on how some of these other economic opportunistic are not lost. What would be more convincing is showing us what was gained. In places like the Champion easement lands where clubs were pretty well broken up by the turmoil and river corridor land was added to the FP what has the positive economic impact for the surrounding communities been. They look pretty well boarded up and shut down to me? Even more desolate now than they were before this “great economic opportunity” came their way??

    Folks should get this book of Lawrence’s it is a great read!

    Hot debate. What do you think? Thumb up 5 Thumb down 3

  3. Solidago says:

    “Oliver’s War” sounds like a fascinating read! I tried finding a copy of it on Google Books with no luck. Lawrence, could you post a PDF copy of it here? It won’t cost you a penny, and you’d certainly be serving the public good. I’d also be happy to post a scanned copy online if and when I get around to buying a paper copy.

    Do you open your home to the general public as well? Nothing’s nicer after a few days in the woods than a hot shower!

    Thanks in advance for your generosity with your property – in contrast to those “park” owners you write about above who selfishly refuse to let the general public freely use theirs.

    A good topic for your next book might be all the poor homesteaders expelled from the Forest Preserve in the late 1800s, and the people prosecuted for cutting wood from the public land to heat their cabins, and hunting deer to feed their families. It seems kind of ridiculous that the poorest members of the public were forbidden from using public resources – their resources – when they needed them most.

    Hot debate. What do you think? Thumb up 6 Thumb down 7

    • Bill Ott says:

      If you cannot find the book through the link in the above article, try this link “http://enterprise.ncls.org/client/ncls” for the North Country Library System. (This link also lets one search thousands of digitized newspaper arcives for free.) As far as it not costing Mr. Gooley a penny for posting his book for free, you are asking him to forfeit all the effort required to research, write, and publish a book. He has a right (and probably a need) to profit from his work. If you want it for free, wait for the copyright to expire or borrow it from a library. Mr. Gooley could have posted an excerpt from the book as a hidden sales gimmick, but he is probably too much of a gentleman to do so.

      Bill Ott
      Lakewood, Ohio

      Like or Dislike this comment: Thumb up 2 Thumb down 0

    • Jill says:

      So, Solidago, how many books have you written? You seem to fancy yourself as such an expert on every subject, I would imagine you’ve written quite a few. Why don’t you go ahead and post them here for all of us to read for free?

      I suspect if you had been a victim in the New London, CT, case, you would have a much different attitude regarding these issues.

      Like or Dislike this comment: Thumb up 1 Thumb down 0

  4. Chris says:

    Stunning info on the result of the New London, CT eminent domain action! Thanks for writing this article.

    Like or Dislike this comment: Thumb up 1 Thumb down 0

  5. Lawrence P. Gooley Larry Gooley says:

    Solidago,

    Apparently you missed the point. Money is power, and money created the laws allowing wealthy people to take private property in the New London case. In the Adirondacks, money was on the opposite side of the argument, holding private property rights to be sacred. And guess who won? Only certain portions of the population can have their cake and eat it, too.
    And if you think your Google comment was funny, here are some facts you conveniently ignored. You can’t argue that Google isn’t big money, and Google has, in fact, illegally copied some of my books. Why? Because they can, and they know that I (and thousands like me) lack the resources to battle them in court. They haven’t given my books away … YET … but that’s part of their plan. In spite of copyright laws, they believe it would be better for the public if access was available to ALL written materials, and have stated so.
    And by the way, my books ARE at least available through purchase, so there IS access to them. Good luck trying to pay to get on someone’s vast, private Adirondack preserve.

    Well-loved. Like or Dislike: Thumb up 5 Thumb down 1

    • Solidago says:

      Your resentment of large tracts of land in the Adirondacks being closed to the general public is very thinly veiled. As you seem to feel that the owners have some moral duty to let the general public use their property, I’d assume that you’d happily provide the general public access to yours. Apparently different standards apply.

      As for eminent domain, you are aware that the purchaser needs to pay fair market value for the property, right? (If you think the public should just take the property, that is forbidden by the Constitution.) So with NYS apparently uninterested in and/or unable to afford the many large tracts on the market now (Brandon Park, Follensby Pond), and with others likely coming on the market in the near future, why would eminent domain make any sense whatsoever? Bringing up the topic of it being applied to large private tracts in the Adirondacks might make you feel good, but that’s about it.

      Like or Dislike this comment: Thumb up 1 Thumb down 3

      • Jill says:

        You are aware of the reality of “fair market value,” right? Or are you actually that naive and gullible?

        Like or Dislike this comment: Thumb up 1 Thumb down 1

  6. Lawrence P. Gooley Larry Gooley says:

    Chris,
    Thanks, and to follow up, here’s a link to an interview with a New London homeowner, telling his own story. Amazing.

    http://www.youtube.com/watch?v=A3AsqUzVA0Q

    Like or Dislike this comment: Thumb up 1 Thumb down 0

  7. Paul says:

    Oliver and many others had always broken the law by trespassing on other peoples property. They felt that those laws simply did not apply to them. They were wrong that is why they lost, not because Rockefeller was rich. You can be rich or poor and still be right. Rockefeller was also not going to be intimidated. It basically made his family prisoners in their own home. Oliver was not the only guy that was affected by that saga.

    Like or Dislike this comment: Thumb up 1 Thumb down 2

  8. Paul says:

    This new case is certainly not David vs Goliath. Phil has the full arsenal of the state of NY on his side.

    Like or Dislike this comment: Thumb up 2 Thumb down 2

  9. Lawrence P. Gooley Larry Gooley says:

    I didn’t advocate taking anyone’s property. What I said was that a smart lawyer could turn the eminent domain law against owners of large Adirondack tracts. If the average man’s land in New London can be taken for better financial prospects (that didn’t materialize), can’t a rich man’s property in the Adirondacks face the same fate? After all, rich or poor, we’re all equal, right? (If you believe that, I’ve got to get into the bridge-selling business. Would I get to determine the “fair market value” that you’ve naively placed your trust in?)

    I certainly can’t say that millions in benefits would arise from opening those wilderness tracts, but I fail to understand how you’re so certain those benefits won’t arise when Brandon Park and Bay Pond have been off limits for more than a century. Who would know?

    I have a long list of places I would have visited with my family when they were young … would have bought gas and food in the Adirondacks … but I couldn’t, because hunting clubs and “park” owners denied the public access just to look at waterfalls (OK Slip Falls and the several falls on the Grasse River were once on that list.)

    Besides, the whole point was, what rich wants, rich usually gets. The rich are right because the rich write the laws through lobbyists and pressure. They don’t get headlines for it, and that’s because it happens all the time. What gets headlines is the little guy who creates change, and the attention comes from it being such shocking news.

    Hey Lamora, you’re mad at Rockefeller and you want to fish? Hide in your hovel and catch state-stocked fish in his river. Hey Rockefeller, you’re mad at Lamora and you want his property? Hide in your mansion, post armed guards overlooking Lamora’s hovel, ban him from roads that lead to stores, buy a railroad right-of-way to stop him from fishing, move a public post office onto your private property, and throw money and lawyers at the problem.

    I appreciate property rights, but that’s hard stuff to defend. But yeah, you’re right … we’re all equal.

    (And I hope one of my clients, a member of the Rockefeller family, takes no offense.)

    Like or Dislike this comment: Thumb up 2 Thumb down 0

  10. Paul says:

    Larry, didn’t they have to put the post office back in Brandon. As I remember it that was one of the small battles that Lamora won. Didn’t change things much.

    Sure these folks are rich, but they also have protected hundreds of thousands of acres on Adirondack land maybe even better than NYS has done. Part of the reason folks are clamoring to get at OK slip falls and the Essex Chain of Lakes is because they have been so well protected over the years. The great range was far better protected when it was in private hands than it is today.

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  11. Lawrence P. Gooley Larry Gooley says:

    Paul, I guess that’s true if “protecting” is defined as not letting people see or visit it. I know that during decades of hiking, canoeing, and mountain climbing in the Adirondacks, never once did I think it was wonderful how the wealthy folks were protecting waterfalls, streams, and mountains from being seen by me.

    I know we aren’t all good stewards of the land, but many of us are, and to keep people away from something great, just for the sake of keeping them away and showing that you own it, seemed wrong to me at the time. Again, that’s their right as property owners.

    But that age-old claim (by the way, it originated with them) that they were “protecting the land better than the state could” was self-serving. The record shows that on Rockefeller’s estate and others, their own employees were arrested for game-law violations.

    The earliest Rockefeller did plenty of logging, and about 25 years later, the estate was sold to a company that logged the property. When they were finished in the 1930s, the land was sold back to the Rockefellers (and the duPont Ross family). I guess it’s all in the definition of “protecting.”

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  12. Paul says:

    “not seen by me” that is recreation not protection.

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  13. Paul says:

    also now some of these lands are logged because it is required by the state to get a tax break. that should be changed. there is plenty of public land in the Adirondacks why not leave some protected by the tax payers with the help of the owners and not have it trampled by hikers?

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