As part of the suit, the association is asking the New York State Supreme Court to declare that the waterways in question—Mud Pond, Mud Pond Outlet, and Shingle Shanty Brook—are not open to the public.
I did my two-day trip last May, starting at Little Tupper Lake and ending at Lake Lila, and wrote about it for the Adirondack Explorer. Click here to read that story.
I believe the common-law right of navigation allows the public to paddle the three waterways even though they flow through private land. The state Department of Environmental Conservation—as well as several legal experts I consulted—support my position. In September, DEC wrote to the association’s attorney, Dennis Phillips, and asserted that the waterways are open under the common law. The department also asked the association to remove cables and no-trespassing signs meant to keep the public out. Click here to read about DEC’s decision.
But the landowners are not backing down. They served me with the complaint in the lawsuit at the Explorer office on Tuesday.
The legal papers do not mention DEC’s decision. We have reported previously that the department and the association disagree over whether a waterway must have a history of commercial use to be subject to the right of navigation. The association contends that Shingle Shanty and the other two waterways have no such history, so they are not open to the public.
The department maintains that if a waterway has the capacity for trade or travel, and if it meets other necessary criteria (such as legal access), then it is open to the public. Furthermore, DEC says recreational use can demonstrate this capacity.
If the Mud Pond-to-Shingle Shanty route is open to the public, paddlers traveling from Little Tupper to Lake Lila will be able to avoid a 0.75-mile portage. That certainly would be a boon. But the larger question is whether the public has the right to paddle waterways that connect parcels of public land, public lakes, or other legal access points. After all, how many rivers in the Adirondacks and elsewhere in the state pass through private land at times? I’m guessing a lot.
Phil Brown is the editor of the Adirondack Explorer newsmagazine.