Friday, April 5, 2013

Landowners Will Appeal Shingle Shanty Paddling Case

shingle shanty web photoThe owners of a remote Adirondack waterway who lost a bid in court to keep it closed to the public will appeal the decision, their lawyer told the Adirondack Almanack on Thursday.

Dennis Phillips, a Glens Falls attorney representing the Friends of Thayer Lake and the Brandreth Park Association, confirmed via email that his clients intend to file an appeal. He did not explain the basis behind it.

In 2010, the landowners filed a trespassing suit against Adirondack Explorer Editor Phil Brown for paddling through the waterway—which includes Mud Pond, the Mud Pond Outlet, and a portion of Shingle Shanty Brook—the previous year. Brown wrote about the trip for the Explorer in an article about navigation rights. State Supreme Court Justice Richard T. Aulisi ruled in February that the route is navigable-in-fact, meaning that it is open to paddlers under the common-law public right of navigation.

Last week, as part of the final order implementing his decision, Aulisi barred the landowners from replacing their recently removed “no trespassing” signs and cables blocking traffic from the waterway, declaring them a public nuisance.

As a result of Aulisi’s ruling, Caffry said, the waterway will be open to the public this spring unless the plaintiffs obtain a stay of the decision.

Photo: Phil Brown on Shingle Shanty Brook.

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29 Responses

  1. George says:

    Given that no facts are in dispute, the appeal can only be on the law. The only legal determination is that recreational use and occasional commercial use is sufficient to establish both navigability and the public’s right to access. There appears to be nothing novel in the decision, and hence no real basis to prevail on appeal. This is a face-saving move doomed to fail.

    Hot debate. What do you think? Thumb up 12 Thumb down 9

  2. Tony says:

    They’re now only publicizing a new pristine waterway to paddle. I, for one, will be there this spring.

    Hot debate. What do you think? Thumb up 8 Thumb down 9

    • Justin says:

      Well-loved. Like or Dislike: Thumb up 7 Thumb down 3

      • George says:

        The article you reference falsely claims that public access will lead to the deterioration of an area, exactly contrary to why we have a public park. If over use were the case, and it is not, why haven’t other purely public water routes (e.g. Oswegatchie Traverse) become overrun with paddlers? Because these are difficult trips. That is why most Adk visitors walk to Marcy Dam! The idea that private ownership equals good stewardship is silly. Read the Brandreth’s own book and learn how they logged their lands excessively and dramatically and wastefully – hardly a pristine setting. In NYS we have public navigability laws. Private owners may not like this, but it is the case and it will not change. Private owners like the Brandreth clan are not really worried about the very occasional paddler. They like what they have because you can’t have it!

        Hot debate. What do you think? Thumb up 6 Thumb down 5

        • Paul says:

          of course it will lead to some deterioration of the area. Increased use always has some impact even if minor. There are areas now in the st. Regis canoe area that have been blocked off from use because over time they have been wrecked by paddlers using the area. Just how it goes. This is a use issue not an environmental issue.

          Like or Dislike this comment: Thumb up 3 Thumb down 2

  3. Marco says:

    They shouln’t even bother unless they are willing to contest the constitionality of the law. The facts of the case are not in dispute. Clearly they(the landowners themselves) have used the waterway for commercial purposes. Tourism is the primary income for a large portion of people in the ADK’s. Anything that supports this should be a GOOD thing. Even if it at the expense of the personal prefence of a few that would say no.

    Paddlers should also remember that they are visting, not camping. Garbage and trash shold never be allowed to get away. If you see some pick it up. Be carefull about it and be thankfull. Good paddlers should be a boon to the land, not destructive.

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

    • Paul says:

      Mrco, what commercial use? Transporting supplies to their private camp? Doesn’t sound too commercial to me.

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

      • Paul says:

        It does demonstrate the ability of the waterway to support that use. That makes sense.

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

  4. Phil Brown says:

    If you read the column Justin links to, be sure to read the follow-up column in which the author takes back some of his comments.

    http://www.adirondackdailyenterprise.com/page/content.detail/id/536296/Old-school-approach-may-be-the-best-course.html?nav=5046

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

    • Justin says:

      Thanks for the link. In addition to apologizing for a few stronger statements regarding trespassing, he also explains his own evolution away from being a proponent of “paddlers rights” in the early 1980s, and why he’s now opposed to the effort.

      It’s nice to see there still are folks who are willing to say they were wrong and apologize, and favor the “Old School Approach” of asking permission for access.

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

  5. George says:

    The second article, in which the columnist retracts his libelous claim of criminal behavior, comes down to this argument:

    “It seems to be a case of wanting what somebody else has.”

    Private owners do not own or have the paddling rights, the public does. The argument turns the common-law on its head, which is not how courts interpret the issue.

    Common law navigability rights recognize and protect the historical role and uses of water for public transport in the Adirondacks.

    Nobody is taking anything away from the Brandreths, because the right to exclude the public from their legally accessible navigable stream was not their’s in the first place.

    The Adirondacks has a history of money buying the right to exclude. Note that the 1871 “Act for Private Parks and Game Preserves”, which led to massive exclusion of the public from lands on which generations hunted and fished, preceeded the 1885 formation of the publicly- owned NYS Forest Preserve.

    Is there any doubt what would have happened to the public’s forest if it were not protected by the NYS Constitution? It would be gone.

    Hot debate. What do you think? Thumb up 5 Thumb down 6

    • Paul says:

      Why does this stretch of woods and waters on private land still exist? George it would not all be gone. It’s not. The idea that only public land can be protected is silly.

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

      • George says:

        I am not saying that only public land can be (or is)protected. Of course that’s not the case.

        Private land is protected also.

        But there are two differences, which is my point:

        1. The public cannot use private land

        2. If public Adk land could be sold by the State, as once was the case, there would be no Forest preserve and the Adks would all be private. There is more than enough private wealth to buy it all. Then, see 1 above.

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

        • Paul says:

          Gotcha. So by “gone” you meant private. The same logic says that all the federal land out west would be private also? As well as all the other state land in other states with different rules.

          The fact that the public cannot use private land is an important reason why some of it is so well protected. The Fynch Pruyn lands are a great example. Now that some of them are public they are not as well protected. But George you did get the access, yes.

          Same goes for this waterway. Under the common law it is simply not as well protected. But yes you have access here as well.

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

          • George says:

            Yes, gone means only a few privileged can see it. That is my standard.

            For example, the foregoing certain development easements at Bay Pond. But the public, which gives the benefits by foregoing tax collection, cannot visit Bay Pond. Why?

            I don’t know about other areas in the US and I will not comment about logic.

            Most of the Finch Pruyn lands have been logged. Essex Chain of Lakes seems to have been clearcut at some point. To my mind, that is not preservation. If you want to see preservation, look at Five Ponds, Never touched. That is preservation.

            The Whitneys clearcut. The Brandreth’s cut a lot, wastefully it seems. So too Webb.

            Protection? That is a joke. (Read McMartin’s history of lumbering on many of these great estate areas.)

            Private and inaccessible? Most decidedly! The paddling rights case is about excluding the riff-raff, not preserving the forest.

            Yes, I want public access and public ownership, wherever that can be achieved. I will take state protection, with all of its problems, over private exclusion anytime.

            Hot debate. What do you think? Thumb up 6 Thumb down 3

            • George says:

              typo – The Rockefellers and the Duponts (I believe) gave up development rights in Bay Pond in exchange for tax forgiveness.

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

              • Paul says:

                “Protection? That is a joke. (Read McMartin’s history of lumbering on many of these great estate areas.) ”

                George, I have read it. You should also read her book, The Privately Held Adirondacks, where she talks about the importance of private stewardship of Adirondack land. She does not think it is a “joke” at all. You don’t have to believe me if you prefer to hear it from Barbara McMartin. I can supply quotes if you want.

                Just because you don’t get to use it does not mean that it cannot be protected. I consider these particular waterways in good hands. For me it is enough to know that they are there and are (were?) well protected.

                As for some of the logging you describe the trees will grow back. It is a renewable resource.

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

              • Paul says:

                Not quite right. Rockefeller on Bay Pond. But the Ross family owns (she was a DuPont and married into the Ross family) what is called Brandon Park. It is a different place but not too far from Bay Pond. It is referred to as Ross’s Park by many. It is for sale right now and can really never be developed or abused (used by the public you would say). Even preservation groups seem pretty satisfied that that 28,000 acres is pretty well protected. One important value for the public from that land is the Brook Trout hatchery something that only seems to work well on well protected private land.

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  6. Deb Evans says:

    a bit of history…
    NYS Adk.water navigation laws were written to allow log drives through private lands,written by politicians w/logging interests. Then the trains came and the issue was mute.

    The Brandrith folks will most likely set up a sign in /sign out logbook like the Adk Club has on the Moose River and prosecute any land trespassers -their right.

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    • Paul says:

      Deb, the difference in the Moose River case is that the sides agreed to settle out of court. The sign-in was one term of the settlement. Here the court has ruled (at this point) in favor of the defendant. There is no need for any terms. So no sign-in, no restrictions to the time of year, or water levels like on the South Branch of the Moose. Just paddle on down.

      The Brandeth’s have already had at least one “land trespasser” since Phil’s trip. The infamous “lady in red” described in the complaint. They have that person on camera lounging on the shore. It is not practical to police something like this. They basically have to deal with it. When there is trash they will have to pick it up etc. That is a consequence of the common law if it applies, and so far it does.

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    • John Warren John Warren says:

      Hi Deb,

      The “navigation laws” in this case (and if I’m not mistaken, most cases) are common law, they were not written by anyone. Also, trains did not end river drives. The end of massive logging and the advent of log trucks ended river drives. River drives continued into at least the 1940s. For example, International Paper floated logs down the Jessup to be loaded on log trucks during World War Two.

      John Warren
      Editor

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      • Deb Evans says:

        Hi John
        I agree that the issue of navigable water is based on English common law but looking at the history of the Adks,and NYS laws in the 19th century you find that the laws were most often enforced to benefit the state at large.
        River drives were only for softwood-paper pulp. There were a # of years when the spring rains were light and the wood was stranded for the year. 1892-RR remedied that problem and allowed the hard wood to be harvested. There were still river drives on several rivers into 1930’s-40’s because of economics – cheaper for the pulp mills. Very dangerous for the log drivers.
        You have to agree that most of the laws regarding the adk waters were enacted for the benefit of downstate interests- mid 19th century- water for the canal systems was the major issue and later- water access for log drives. Many companies owned not only the wood lots and shorelines but for accessibility the land under the lakes and rivers.

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        • George says:

          Clearly river drives were not conducted by individuals and the economics of lumbering was big business. Navigability ws not addressed to “sports” who were following Wallace’s guide. That said, the beauty of the common law is that it evolves over time and becomes applicable in new situations. For example, the Fourth Amendment to the Bill of Rights, protection from unlawful search and seizure, was written before the technology of wiretapping. But it still applies. So regardless of the original beneficiary or context of the navigability principles, today you, me, and Phil Brown can invoke these same cases, to our benefit, and paddle the outlet of Mud Pond.

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

        • John Warren John Warren says:

          Hi Deb,

          I think we disagree mostly because I think we are speaking in generalizations.

          There is a marker “In Memory of the River Men and Foresters who made the Hudson River Drive from Forest to Factory 1850-1950” – that’s about 75 years after the railroad arrived in North Creek. Barbara McMartin says, railroads “exerted a minor impact on the forests, except on the periphery of the area until the 1890s.” Also, river drives were not only for pulp as pulp wasn’t even in use for paper when river drives began (see my own book, The Poesten Kill). Longer logs were driven in the Adirondacks (13′), mostly spruce because that was market lumber, not because it was paper-pulp (at least not until after the 1890s). Most trees cut before the 1890s were probably used locally. I haven’t done the math, but probably more logs were driven after 1890 (after the railroads arrived) than before. Your 1892-RR, was one railroad in one corridor (I’m familiar, I’ve written about it), I don’t think it’s the rule across the Adirondack region.

          Mostly, 19th century laws were not written to benefit the state at large (as you yourself argue in the last paragraph). I think it’s true that many (probably not most) of the laws were enacted to benefit downstate interests (essentially the only “interests” outside local industry that there was until the 1870s), and a few involve water navigation in the Adirondacks, mostly for driving and rafting logs. However, I that most laws passed about Adirondack waterways in the 19th century were to solve local problems, despite the later focus of historians on the water quality debates that helped lead to the establishment of the Forest Preserve (ie., your canal argument).

          The logging stuff, and some of the legal stuff is covered in Barbara McMartin’s The Great Forest of the Adirondacks.

          Thanks for reading and commenting.

          John Warren
          Editor

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  7. George says:

    re: a bit of history

    What’s good for the goose, is good for the gander

    re: Adk water navigation laws

    the common law, which governs here, evolves through court decisions – not through legislation

    re: sign-in book

    I am all for sign-in books because they aid in finding lost campers

    they are standard on every public trailhead

    nothing stops the landowners from selling lemonade

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

    • Paul says:

      It would help the landowners police the waterway. But I doubt that anyone with nefarious intent is going to sign in. Or perhaps they will sign in like they do on the East Branch of the St. Regis in places:

      “Cheech and Chong, St. Regis Falls” (reason) to “check on our pot plants”

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

  8. Deb Evans says:

    As a member of CASART and knowing there is no cell service in that region,I hope there will be some kind of itinerary or sign in/out system.

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    • George says:

      Right now, paddlers can sign in the DEC book at Little Tupper, and sign out at the DEC book in Lake Lila or in Stillwater.

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    • Will says:

      Whether there’s a register or not, anyone with lick of sense will make sure that somebody knows where they’re going, when they’re expected to return, and when somebody should call for help. A good itinerary left with a responsible person is far more useful than the short description that fits in most registers. Of course, if there are registers at points other than a trailhead signing in (or out) can indicate that those in need of help have already reached that point.

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