Thursday, September 10, 2009

Canoe Rights Advocates Go On the Offensive

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

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Mary Thill lives in Saranac Lake and has worked alternately in journalism and Adirondack conservation for three decades.




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