Tuesday, February 26, 2013

‘Explorer’ Editor Wins Paddlers’ Rights Case

shingle shanty web photoAdirondack Explorer Editor Phil Brown did not commit trespass in 2009 when he canoed over a waterway through private land,  because that waterway was legally open to the public, a state Supreme Court justice ruled in a decision released today.

Justice Richard T. Aulisi dismissed or denied all complaints against Brown filed by the Friends of Thayer Lake and the Brandreth Park Association. He also issued a declaratory judgment that the waterway in question is “navigable in fact” and so open to all paddlers. He ordered the Friends of Thayer Lake and the Brandreth Park Association, owners of the land through which the water flows, to stop posting the route as closed to the public. The route in question includes Mud Pond, Mud Pond Outlet and a portion of Shingle Shanty Brook in the central Adirondacks.

The state attorney general had joined the case in support of Brown.

Brown paddled through the waters in question on a trip from Little Tupper Lake to Lake Lila. He later wrote about the trip for the Adirondack Explorer.

The Shingle Shanty decision is available online here.

Photo of Adirondack Explorer Editor Phil Brown paddling near the confluence of Shingle Shanty Brook and Mud Pond Outlet by Susan Bibeau.


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John Warren

John Warren has been exploring the woods and waters of the Adirondacks for almost 50 years. After a career as a print journalist and documentary television producer he founded Adirondack Almanack in 2005 and co-founded the geolocation services company Adirondack Atlas in 2015.

John remains active in traditional media. His Adirondack Outdoors Conditions Report can be heard Friday mornings across the region on the stations of North Country Public Radio and on 93.3 / 102.1 The Mix. Since 2008, John has been a media specialist on the staff of the New York State Writers Institute.

John is also a professional researcher and historian with a M.A. in Public History. He edits The New York History Blog and is the author of two books of regional history. As a Grant Consultant for the William G. Pomeroy Foundation, he has reviewed hundreds of historic roadside marker grant applications from around New York State for historical accuracy.

46 Responses

  1. Bill Ott says:

    This is a trip I will probably never take, but I view this decision as a victory for all back country paddlers. We should be allowed access via public waters to public lands through private holdings. I a hope private landholders will not experience violations of their property. If private landowners experience violations, I hope they are allowed to post complaints here. While we want our rights, theirs need to be protected, too.

    Bill Ott
    Lakewood, Ohio

    • Matt says:

      I agree Bill, but I’d go a step further. Not to wax poetic on this, but in a certain way this is a victory for a civil society. The Adirondacks is likely one of the most heavily posted places in all of the Northeast. Certainly there are some very good reasons to post land, but sadly, I’ve seen many folks in the Adirondacks doing it just because they are too scared or disinterested to talk to their neighbors and maybe get to know them a bit, or they do it as a knee-jerk reaction to one bad experience, and don’t consider the broader context. For many folks, the Adirondacks is all about your own private piece of heaven where you can escape the maddening world. I fully respect that, but I’m hear to say that just posting your land most certainly won’t get you there. Taking the time to know your neighbors and your community well enough to have them respect why you’re there in the first place is a good start though. A few plastic signs on trees won’t look after your land, but a community that respects you will- and hey, if you got the bucks to hire a caretaker, all the power to you. Thanks for creating a decent job.
      Sorry that’s a bit off topic, but I had to get it off my chest. So here’s to being a good neighbor, and future paddlers respecting the private lands they paddle through, wherever they may be.

      • Pete Nelson Pete Nelson says:

        Right on Matt:

        We chose not to post Lost Brook Tract for reasons related to what you wrote (I wrote about it here:www.adirondackalmanack.com/2012/01/lost-brook-dispatches-striking-a-balance.html ). If someone can get to our land they can cross it, camp, use the privy and climb to the summit, so long as they adhere to our rules. I just think it is wrong to post it, to hoard it if you will.

        Congrats Phil.

        • Justin says:

          “so long as they adhere to our rules”

          Pete, that is precisely what this case is about.

          • Steve says:

            That is not at all what this case was about. People should respect the property regardless of who owns it or why they have a right to be there, but private landowners aren’t the ones who set the rules for the use of public property or a public easement through private property.

            This case was simply about whether or not the public has a right to use that waterway.

        • catharus says:

          Pete: How does one find out what your rules are? Are they posted?

          • Pete Nelson Pete Nelson says:

            Dear Catharus:

            Our property lines are not posted with signs of any kind except for a handful of DEC Wilderness signs facing the other way on the portion of our boundaries that they recently surveyed.

            In one corner of our property there is a lean-to, built decades ago by the previous owner and rebuilt by us. Hanging in the lean-to is a waterproof bright yellow clipboard with a notebook inside. The words “Posted” and “You must read the following rules” are written on the front in big, black letters. The rules are inside, on the lid. The rules are intended to protect the land and are reasonably close to the current rules for the High Peaks Wilderness.

            We have had one Almanack Reader find the land so far. As would be expected of someone who would have the patience and skill to find it, he wrote respectfully and with interest – and marveled at the trees. We assume as a default that those who would find it would respect the land and want to see no harm done.

            Since we named our summit officially and references to it are starting to show up in databases, on-line sites and maps, we expect a few more people will come. We will see how that goes. It is a beautiful wilderness – precious, being a virgin forest at that elevation – and we feel we have no ethical right to lock it up and hoard it. However I will do anything I have to do to protect it.

  2. Dale Jeffers says:

    A fine piece of legal work by John Caffry

  3. Frank says:

    Way to go Phil and John.

  4. Justin says:

    New York’s highest court held that the nearly 300 foot wide, 23 mile stretch of the Raquette River between Colton – http://vimeo.com/48830509 – and Raymondville – http://www.youtube.com/watch?v=_XCl41yhCrc – was not navigable in fact.

    But this is? http://www.youtube.com/watch?v=Ny6tQflFGTw

  5. don dew jr says:

    John, You mention the “state attorney general had joined the case in support of Brown” Could you be more specific? Is it common for the state (on taxpayers dime) to way in on these types of legal matters? Thanks.

  6. don dew jr says:

    John, Please disregard my previous comment. I get it that the case involves access to State Lands and certainly the Attorney general can way in. Sorry for my lack of understanding!

  7. Paul says:

    John, Thanks. Just for clarification the link for the PDF of the decision is found by clicking on the “Shingle Shanty Decision” in red on the page that is linked here in the article. That was a. little hard to figure out.

    It was interesting the 500 foot portage gave the court “pause”. It looks as if they took into account the fact that “goods” have been transported on the waterway. The fact that commercial use of the waterway by guides was also pretty significant. This case will probabbly be appealed to the appellate court.

  8. catharus says:

    And that’s the way it should be…public waterway, public access…

  9. jay says:

    Can someone tell me the difference between “posted” and Forever Wild.

    • Dave says:

      Forever Wild is a term applied to state owned land, the Forest Preserve.

      Posting is a term that applies to private land if an owner chooses. Posting prohibits public access. The posting law protect landowners from liability for people being hurt while on their land doing various listed things, like hunting whethe the kand is posted or not.

      About the only activity a landowner remains liable for is swimming……and this is why many private swimming holes are now posted…..becuase owners are liable for swimming accidents.

  10. mary says:

    How will this ruling effect the Lake Lila – Stillwater section of water.

    • Paul says:

      As I understand it this ruling, like others, effects only the waterway in question.

      Could make it easier to get a navigable in fact ruling on a similar waterway but the ruling only has bearing on this particular stretch of water.

      For example if a similar waterway did not have evidence of past commercial use, or similar present commercial potential it may not qualify as navigable in fact.

  11. […] According to John Warren, Editor, Adirondack Almanack, “Adirondack Explorer Editor Phil Brown did not commit trespass in 2009 when he canoed over a waterway through private land,  because that waterway was legally open to the public, a state Supreme Court justice ruled in a decision released 2/26/2013.” Click here to read more. […]

  12. Bob Meyer says:

    Congratulations to Phil and all of us! A great victory for the people of the State of New York.

  13. M.P. Heller says:

    A great victory for public rights. Thank you Phil for seeing it all the way through to this decision.

    I’m realtively sure the landowners will mount an appeal attempt, but at least for now common sense and justice for the public has prevailed.

    • Paul says:

      Perhaps a “great victory for public rights” but at the same time perhaps a loss for environmental protection on private lands.

      For example if Pete’s “rules” are not followed on his Lost Brook Tact and the environment is negatively impacted he has the option to post his property to protect it. At this point these landowners have lost that right.

      • JPH says:

        As I understand it, the landowners cannot post their waterway, but they can and probably will post their land adjacent to the “carry.” This ruling is for the waterway only, not for the land on either side.

        • Paul says:

          It seems like they should also be able to post the waterway for uses that are not permitted under common law (fishing for example).

          This waterway has been ruled navigable in fact by this court. The South Branch of the Moose river running through Adirondack League Club property (the “Sierra Club Case”) still has not.

        • Dave says:

          Correct. People can paddle thru, but not leave their boat to picnic or swim or fish or hang out. They can portage around an obstacle. So that is all.

      • Pete Nelson Pete Nelson says:

        I do have that right, true. My situation is different, not being about water access. That said, I fully support the outcome of the lawsuit.

        • Paul says:

          Yes, like you said you can do whatever you need to to protect it. Here they cannot. What is really the difference? Sure the common law was because there was value in the commerce that could take place on these waterways. In this case it is commerce based on recreational use of the waterway. If cutting across Lost Brook Tract to avoid walking around it if it were posted could boost commerce maybe this kind of thing could lead to a similar public easement across your land, no? Or maybe just walking across it to enjoy the beauty as part of a commercial thing (like using the land for tourism which we are all familiar with). A large amount of private land is protected by stewardship (like yours Pete) this kind of ruling that favors commerce at the expense of protection seems like a slippery slope to me and one that I am surprised is supported by so many so-called environmental organizations.

  14. Thatcher says:

    Thanks and congratulations Phil,
    And thanks also to John Warren for helping to keep this case visible for the past few years.

  15. […] on-line Adirondack Almanack is reporting that Phil Brown, editor of the Almanack’s parent publication the Adirondack Explorer was not […]

  16. Congratulations to Phil Brown, the Adirondack Explorer and advocate-lawyer John Caffry for building on the League Club case and common law rights to bring this success for higher common sense home. With this victory, as with the rightful opening up of any new wild territories, especially waterways, comes a newfound obligation to do whatever is necessary to protect, preserve and conserve the resources of these special areas for the benefit of adjacent landowners and future generations of New Yorkers.

    My hope of course would be that an appellate case is not undertaken in response. Instead, collaborative dialogue should be undertaken that brings together paddle access interests for truly navigable waterways, landowners and government stakeholders to realize the potential community and recreational gains of fair and open access while insuring long-term stewardship of such unique resources long into the future.

    Recall that many of us had asked the DEC and then the legislature to define exactly the navigable waters of the state and the Adirondacks in total – as opposed to needing to court settle every stretch one after the other which takes years and unreasonable costs for all concerned. Time to put that matter back on the table for what is right and with that opportunity, the obligate responsibility to safeguard the wild, recreational and unique ecological and fisheries resources, as well.

    Again, congratulations to Phil Brown, Adirondack Explorer, John Caffry and all who supported this important achievement.

    • Steve says:

      As convenient as it could be if the state simply designated waterways as navigable I don’t think it’s really practical or legally viable. If a waterway is navigable the public has always owned an easement, and the owner of any adjoining property has never had a right to prevent people from using the waterway for navigation. If the waterway is not navigable the state can’t take an owner’s right to exclude others without compensating them. Simply allowing the state to declare a waterway navigable might the sometimes constitute an illegal taking under the 5th amendment. Conversely, the state can’t take away a public right and make a waterway non-navigable simply by leaving it off of a list, but most people would assume that everything not on the list was not navigable.

      As obviously burdensome as it would be if the navigability of every waterway had to be settled by the courts, I think it’s the only solution that will balance public and private rights in the greatest number of cases. Fortunately the lack of such cases makes it clear that few people feel inclined to go to court to either gain or prohibit access.

  17. Phil Brown says:

    Thanks to everyone for the kind remarks. But the ones who deserve the kudos are John Caffry, my lawyer, and Kevin Donovan, of the AG’s office. Both did a great job laying out our case in papers and in oral arguments.

    • Marco says:

      It usually takes a good team to get this done. Thanks to the entire team is perhaps more appropriate. You all certainly have mine.

      Along with these rulings, it becomes apparent that we, as paddlers and as citizens, also need to protect the lands, especially around water ways. Pick up your trash and pick up others trash as you pass through. Respect the owners rights, as always.

  18. Ellen Rathbone Ellen says:

    Hey! Congratulations! Huzzah! A triumph for paddlers everywhere…even if we never get to paddle this particular stretch of water.

  19. John Messinger says:

    I also, wonder what the status of a paddle from Lake Lila through Nehasane Lake to Stillwater Reservoir would be.

  20. Mike says:

    This will not be a popular comment here, but someone needs to says it.

    I feel sorry for the landowner in this case. For over 100 years they have carefully stewarded this land, no easy task across multiple generations. Now a large family, some maybe are wealthy but others are certainly not. This land is their heritage. And, now, to some degree, it has been taken by that state for the public (sounds like a different country, eh?) use simply because it has one guy in a kayak has ‘recreational value’ and that makes it navigable. Wow, that is a pretty low bar.

    That is not what ‘navigable’ used to mean….simple recreation did not mean a stream was navigable.

    It think your place looks kinda nice too, gee, way back here in the woods. “I’d love to paddle over there, walk over there. Sorry if you think it is your land. But it is just to pretty…people shouldn’t be allowed to own such a pretty place”…the reasoning would go.

    In a Park that is already half public land, and private land well regulated, it seems the public never gets enough. Nice spot you own, well, the state will take in some manner, make it public. It will never be good enough until it is all public land, and no one lives here, each hamlet slowly erased from the map, each family’s treasured home finally gone. No one home. It makes me so sad.

    I know this will get all sorts of thumbs down, but I am glad I said it. You should know the costs of what you all seem so happy about. Sadly.

    • Steve says:

      All you’ve really done is told us that you have no knowledge at all about the underlying law, and that you disagree with the law. Maybe it makes you feel better, but it didn’t really need to be said.

      Absolutely nothing was taken from these landowners. The public has always had a right to use every navigable waterway in the country. It’s an easement that was retained by the federal government when the property was first transferred, and the landowners have never had a right to prevent others from using that easement. That some people don’t know it, that the pubic doesn’t always take advantage of that right, or that private landowners sometimes succeed at denying the public their rights doesn’t change anything. This is the equivalent of yelling at kids to, “get off of my sidewalk.”

      If you actually knew about the underlying law you’d know that the standard foro navigable in fact is now a much higher bar than it used to be. Our current law is descended from the code of Justinian, which said that, “The public use of the banks of a river is part of the law of nations, just as is that of the river itself. All persons, therefore, are as much at liberty to bring their vessels to the bank, to fasten ropes to the trees growing there, and to place any part of their cargo there, as to navigate the river itself But the banks of a river are the property of those whose land they adjoin; and consequently the trees growing on them are also the property of the same persons.” The Northwest Ordinance, passed in 1787 as the country expanded westward often with the use of small boats, said that “The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor.”

      What’s sad is that the public’s right was successfully usurped for so long.

      • Justin says:

        Wow, Steve. You accuse someone of having “no knowledge at all about the underlying law” and then go on to suggest that the equal footing doctrine, the Northwest Ordinance and Roman law applies in New York?

      • Mike says:

        OMG no I am not a lawyer. Just for fun, I did look up the roman Justinian’s. Seems they ran things in the AD 500’s. The first Emperor Justin was an illiterate. By the time the second came along they were losing wars with Persia and had lost the greater part of Italy.

        I have no idea if his laws apply here. But it would seem they did being the dark ages so I kind of doubt it. But, again, I am no lawyer.

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