Now that attorney John Caffry has successfully defended the public’s right to paddle a remote waterway near the Whitney Wilderness—at least for the time being—he hopes the case will have broader benefits for canoeists and kayakers.
“It’s a good victory for the rights of the public and the rights of paddlers that the judge upheld the right to use this waterway,” Caffry said. “Hopefully it will discourage other property owners from trying to close off streams through their property that are navigable, so people don’t have to go court.”
The Glens Falls lawyer represented Adirondack Explorer Editor Phil Brown, who paddled the disputed waterway in May 2009 while traveling between tracts of the state-owned Whitney Wilderness. Brown later wrote an article for the Explorer about the trip and the issue of navigation rights.
In 2010, the landowners, the Friends of Thayer Lake and the Brandreth Park Association, sued Brown for trespass, arguing that the waterway—Mud Pond, Mud Pond Outlet, and a portion of Shingle Shanty Brook—were not open to the public under the common-law right of navigation.
After the suit was filed, the state attorney general’s office joined the case, with Assistant Attorney General Kevin Donovan arguing for the public’s right to travel the waterway.
On Monday, state Supreme Court Justice Richard T. Aulisi ruled that Brown had the right to paddle the waterway even though it flowed through private property.
The landowners’ attorney, Dennis Phillips of Glens Falls, said in an e-mail Wednesday that “the decision is under study, so it is too soon to make any comments.”
One of Phillips’s main arguments was that the waterway wasn’t “navigable-in-fact”—the legal phrase for waters open to the public under the common law—because it wasn’t big enough to support robust commercial traffic.
Aulisi, though, cited an earlier case that acknowledged that nowadays most rivers and streams are used for recreation rather than the transportation of goods or logs. That case, involving five paddlers on the South Branch of the Moose River, went all the way to the Court of Appeals, the state’s highest tribunal.
“The Court of Appeals has made clear that since a river’s practical utility for travel or transport is no longer measured by its capacity for getting materials to market, the recreational use of such river should be part of the navigability analysis,” Aulisi wrote.
And there is plenty of evidence that the waterway, however small, has been used for travel for a variety of purposes. Aulisi cited evidence that at least ten people paddled there in the two years following Brown’s article. In the past, he noted, the landowners used the waterway to transport building materials and furs. He also pointed out that Dave Cilley of St. Regis Outfitters indicated that he would use the waterway “as part of [his] commercial guided tour business” if it were open to the public.
Thus, the judge wrote that Caffry and Donovan “established that the waterway has a practical utility for travel and the transport of some materials.”
At one point, Brown had stepped onto the landowners’ property to carry around a 500-foot stretch of rapids on Mud Pond Outlet. Although Aulisi remarked that the portage “does give this Court pause,” he said the judges in the Moose River case ruled that the right of public navigation includes the right to portage around obstacles.
Aulisi ordered the property owners to take down signs threatening paddlers with trespass as well as cables hung across the brook to keep them out. Brown had ignored the no-trespass signs on his trip.
Barring an appeal and a stay of the decision, Caffry said the waterway should be open to the public this spring. It remains to be seen how the ruling will affect other waterways. While Caffry hopes it discourages other property owners from posting navigable-in-fact canoe routes, Aulisi’s decision applies only to this particular waterway.
Attorney General Eric T. Schneiderman released a statement saying he was pleased with the decision. “This ruling affirmed the waters of New York belong to the people of New York,” he said. “We will continue to use this office to defend the public’s right to enjoy the full use of the navigable waters of our state without being stopped or harassed.”