Monday, October 29, 2012

Shingle Shanty Paddling Suit Advances

The landowners suing Adirondack Explorer Editor Phil Brown for trespass say he’s just the latest in a long line of people who have tried to pry open closed waters for public use, and if he succeeds, they argue, he will weaken traditional standards of property rights.

In a legal memorandum filed in late September, Dennis Phillips, the attorney for the Friends of Thayer Lake and the Brandreth Park Association, asserts that Brown is carrying the flag for a small band of paddling fanatics, including members of the Sierra Club, who would open just about every stream in New York State to canoes and kayaks.

“With a little creativity, any combination of a land and water route could be deemed navigable in fact and opened as a public highway,” Phillips contends. The memorandum is one of a slew of documents submitted since August by attorneys for the plaintiffs, Brown, and New York State, all of whom are asking State Supreme Court Justice Richard T. Aulisi to decide the case without a jury trial.

While the sides disagree over whether Brown had the right to paddle through the private property—on Mud Pond, Mud Pond Outlet, and part of Shingle Shanty Brook—the basic facts are not in dispute. Brown concedes that he paddled the two-mile stretch in May 2009 while traveling between state-owned waters in the William C. Whitney Wilderness. The only question is whether the Brandreth waters are “navigable in fact,” a legal concept that dates to medieval England.

Lawyers for all three parties are scheduled to argue the case at 9:30 a.m. Friday, November 16, at the Fulton County Courthouse in Johnstown.

The Friends of Thayer Lake and the Brandreth Park Association argue that the question of navigability depends on whether the stretch is useful for commerce. Since the serpentine, shallow waters aren’t vital to trade, they say, they should remain off limits to public travel.

Although the state’s highest court ruled in the 1990s that a waterway’s capacity for travel could be considered evidence of its navigability in fact, Phillips argues that such a capacity is not enough. Rather, he says such evidence needs to be taken into account in conjunction with the waterway’s suitability for commerce and its historical use.

Brown’s lawyer, John Caffry, maintains that such a reading is too narrow. “If it is found that there is that capacity there, and even if it’s just by canoes and kayaks, that is adequate,” he told the Explorer (Phillips declined to be interviewed for this story).

Caffry sees the disputed waters as part of a longer waterway that starts on the outlet of Salmon Lake and goes to Lake Lila and beyond, even though it flows partly through private land and even though a few stretches aren’t navigable because of rapids or obstructions. Even the landowners suing Brown, he said, considered their waters part of a ten-mile waterway. “If you look at a map, it’s all one continuous body of water,” Caffry said. “It happens to have some wide sections that are ponded, and it happens to have some sections that are rapids.”

Phillips, however, contends that the landowners have the exclusive right to paddle the privately owned waters. If the public is allowed to paddle there as well, he says in an affidavit, “the well-settled expectations of private property will be abolished and the general public will get a free ride on the backs of the landowning private sector.”

In his legal memorandum, Caffry argues that the common-law public right of navigation supersedes any recreational rights claimed by the landowners. Officials with the state Department of Environmental Conservation who paddled the private waters concluded that they are navigable in fact. The state would later join the lawsuit to uphold the public right of navigation.

Brown was sued in 2010, a year after writing about a seventeen-mile trip from Little Tupper Lake to Lake Lila, a route known as the Lila Traverse. He undertook the two-day journey after researching the law, with the intent to write an article about paddlers’ rights.

He could have made the trip without paddling down any disputed territory: the state created a 0.8-mile carry trail that avoids the stretch of water at the heart of the suit. Phillips says Brown should have contented himself with paddling the state-owned waterways in the Whitney Wilderness and portaged his canoe to skirt private land.

“Yet Defendant Brown and the Sierra Club do not see what has been generously purchased for them by their fellow State-citizens; instead, they only see what they do not have, only where they cannot go,” Phillips asserts.

But the existence of the carry trail is irrelevant, according to Caffry. It’s as if somebody tried to bar drivers from the Northway and gave them directions to Route 9 instead, he said. Just as the Northway is open to the public, he added, so should be Shingle Shanty Brook.

Photo: A posted sign along Mud Pond Outlet. Photo by Phil Brown.

More stories about the Adirondacks can be found in each issue of Adirondack Explorer, the non-profit news magazine devoted to the protection and enjoyment of the Adirondack Park.  Get a full print or digital subscription here.

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14 Responses

  1. Paul says:

    Kenneth, The Friends of Thayer Lake… Can you tell us more about this entity? It is my understanding that this group is composed of individuals who want to use this land as some kind of closed nature preserve to study Adirondack ecology in that area? Is this correct? This raises an interesting question. If these is any way to keep a private parcel like this closed to commercial travel. That is what the defendants here are arguing. They are saying that this waterway cannot be blocked from any forms of commercial travel, whether it be canoes or larger motorized craft, logs, whatever.

  2. Moose says:

    I think it is just an entity created for tax loop hole purposes so the owner doesn’t have to pay as much in property taxes. Not that they are doing bad work there bit I heard that was the true motive.

    • Paul says:

      I thought it was actually one of the past APA heads who was part of this group. I think they are a real thing?

      • Moose says:

        Yes they are real and all the scientist associated I am sure are good folks and well intensioned. What I am saying is that this is yet another tax loophole so they can can keep their “preserve”. Notice to those at ACR, call it an ecological research station and pay lower taxes!

  3. Wally Elton says:

    The usual broad-brush painting of those who disagree is disappointing. But since Mr. Phillips insists, I’ll consider myself a fanatic henceforth!

  4. Sven says:

    Bunch of rich, elietest jerks who want to harken back to the days when families owned these enormous feudal states. Calling it an ecology research area is nothing more than a tax shelter.

    • Paul says:

      Don’t get me wrong. I was just asking. They may have no intention of using it in this way. We could check the tax rolls. I don’t think they would be entitled to any kind of tax write off for that purpose anyway. But maybe you have a better handle on tax law than me.

      So far these owners have proven to be exemplary stewards of the environment.

      But if Phil and other paddlers are entitled by law to skip the carry than that is what the judge will tell us.

  5. Big Burly says:

    There are so many streams, ponds, lakes, and rivers throughout the ADKs that are already open to the public.
    It is difficult to understand why this legal schmegal is going forward.
    The families that own the Brandreth parcel have been great stewards of the land for generations. Why public access?
    So much public access land is available. Private land ownership is part of what makes the USA such a different place from most of the rest of the world.
    I hope the Association prevails. My private lands and river access might be next on the list.

  6. Paul says:

    If the common law prevails in these cases than any restrictions are bunk? Here we would be saying that the state law regarding posting of the waterway is illegal. Also state law restricting the use of the waterways by motorized craft in many cases would also not carry weight? The defendant is saying that any restrictions to the “common law” right of navigation is illegal. At the very least a precedent here would allow anyone to argue that in the future. If this type of use is allowed under the law just about any use should be allowed as well.

    This is pretty well understood. In the Moose River case the Sierra Club and the state chose to settle the case rather than risk a decision that they would not be happy with on both sides. There there are still restrictions on the river (only open for part of the year and at certain water levels). Either they are legal or they are not??

  7. Moose says:

    Why does this family deserve to pay lower property taxes than we do on our “Forest Preserve” lands? Lets get a 501C also…it’s a big scam. They get to keep their preserve, pay a “Romney” rate, and keep every one out.

  8. JPH says:

    The Shingle Shanty Preserve and Research Station
    is the real thing.

    http://www.shingleshanty.org

    Its extreme isolation makes it an important laboratory. Public access to this unique wild region of the park will change it forever. Probably not for the better.

    Leave it be.

  9. I believe this arguement boils down to respect and not a point of law. If someone takes the time and effort to purchase and maintain a piece of property then they should have the right to set requirements for others also whether a creek runs through it or not. I ask people who come to visit me at my home to remove their shoes so I can maintain the carpet in my house. Not that they would want to stain it but just by human nature and indifference we have a way of mucking things up.The sierra club, as with most clubs of this type, started out with a noble cause, but somewhere along their path it became bastardized. Bullying is never the answer as we teach our children in second grade. Hopefully respect will triumph over legality

  10. OldrNbetr1 says:

    JPH,

    It takes more than a website to make a research foundation. I followed the link as you provided

    http://www.shingleshanty.org

    There’s no evidence of any serious research; although, at least one member is a birder and keeps notes. With just one publication, equivalent to a well written 4 page, 8th grade report, I think there’s reason to believe the foundation is a sham.