Thursday, February 28, 2013

John Caffry: Decision “A Good Victory” For Paddlers

shingle shanty web photoNow that attorney John Caffry has successfully defended the public’s right to paddle a remote waterway near the Whitney Wilderness—at least for the time being—he hopes the case will have broader benefits for canoeists and kayakers.

“It’s a good victory for the rights of the public and the rights of paddlers that the judge upheld the right to use this waterway,” Caffry said. “Hopefully it will discourage other property owners from trying to close off streams through their property that are navigable, so people don’t have to go court.”

The Glens Falls lawyer represented Adirondack Explorer Editor Phil Brown, who paddled the disputed waterway in May 2009 while traveling between tracts of the state-owned Whitney Wilderness. Brown later wrote an article for the Explorer about the trip and the issue of navigation rights.

In 2010, the landowners, the Friends of Thayer Lake and the Brandreth Park Association, sued Brown for trespass, arguing that the waterway—Mud Pond, Mud Pond Outlet, and a portion of Shingle Shanty Brook—were not open to the public under the common-law right of navigation.

After the suit was filed, the state attorney general’s office joined the case, with Assistant Attorney General Kevin Donovan arguing for the public’s right to travel the waterway.

On Monday, state Supreme Court Justice Richard T. Aulisi ruled that Brown had the right to paddle the waterway even though it flowed through private property.

The landowners’ attorney, Dennis Phillips of Glens Falls, said in an e-mail Wednesday that “the decision is under study, so it is too soon to make any comments.”

One of Phillips’s main arguments was that the waterway wasn’t “navigable-in-fact”—the legal phrase for waters open to the public under the common law—because it wasn’t big enough to support robust commercial traffic.

Aulisi, though, cited an earlier case that acknowledged that nowadays most rivers and streams are used for recreation rather than the transportation of goods or logs. That case, involving five paddlers on the South Branch of the Moose River, went all the way to the Court of Appeals, the state’s highest tribunal.

“The Court of Appeals has made clear that since a river’s practical utility for travel or transport is no longer measured by its capacity for getting materials to market, the recreational use of such river should be part of the navigability analysis,” Aulisi wrote.

And there is plenty of evidence that the waterway, however small, has been used for travel for a variety of purposes. Aulisi cited evidence that at least ten people paddled there in the two years following Brown’s article. In the past, he noted, the landowners used the waterway to transport building materials and furs. He also pointed out that Dave Cilley of St. Regis Outfitters indicated that he would use the waterway “as part of [his] commercial guided tour business” if it were open to the public.

Thus, the judge wrote that Caffry and Donovan “established that the waterway has a practical utility for travel and the transport of some materials.”

At one point, Brown had stepped onto the landowners’ property to carry around a 500-foot stretch of rapids on Mud Pond Outlet. Although Aulisi remarked that the portage “does give this Court pause,” he said the judges in the Moose River case ruled that the right of public navigation includes the right to portage around obstacles.

Aulisi ordered the property owners to take down signs threatening paddlers with trespass as well as cables hung across the brook to keep them out. Brown had ignored the no-trespass signs on his trip.

Barring an appeal and a stay of the decision, Caffry said the waterway should be open to the public this spring. It remains to be seen how the ruling will affect other waterways. While Caffry hopes it discourages other property owners from posting navigable-in-fact canoe routes, Aulisi’s decision applies only to this particular waterway.

Attorney General Eric T. Schneiderman released a statement saying he was pleased with the decision. “This ruling affirmed the waters of New York belong to the people of New York,” he said. “We will continue to use this office to defend the public’s right to enjoy the full use of the navigable waters of our state without being stopped or harassed.”


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50 Responses

  1. Charlie says:

    I’m always happy when the public wins,especially nowadays when more and more is being taken away from us. It does not seem fair that a canoer,who is not hurting anybody,not trashing or damaging the land,is paddling down a river in the middle of a wilderness,then all of a sudden a cable goes over the river so that he cannot go further….because somebody owns that stretch of wilderness in the middle of nowhere. Some landowners have cold,selfish streaks no doubt.I’m glad the court went in favor of Phil. A positive sign which we could use more of!

    • Paul says:

      Charlie, as I understand it these “cold selfish landlords” also have pictures of people on their land who were not just passing through but wandering around on the banks for no good reason. One was mentioned in the court filing I think (mysterious “lady in red”)? This just means that if someone wants to trash the place, and as we all know there are many paddlers that are not responsible folks like Phil, will now have an easier time doing it.

      I would argue against what John says and assert that it is more likely that this decision will encourage some landowners to post their waterways where they have not in the past. One clear message here is that this needs to be addressed on a case by case basis. Does the waterway have a history of transporting goods like here or not (?), an important measure of navigability in fact based on this and prior decisions.

      I have paddled some rivers that may or may not fit the definition of navigable in fact. I simply asked the owner for permission and they said – no problem. Why is that so difficult?

      • Harold Sperazza says:

        Charlie, as a fellow paddler I have to wonder how many people who take the time and effort to paddle through this disputed area are likely to get out of their kayaks or canoes and trash the place. While I certainly have seen my share of trashed campsites, I have paddled expansively throughout that region and I have visited the boundary in question. I don’t recall seeing many patches of “trashed” river banks. It seems to me the sort of people who defile the ADKs are more likely to do so at the sight of bright yellow NO TRESPASSING signs threatening prosecution to the fullest extent of the law.

  2. Justin says:

    Can Mr. Caffry explain how this decision is consistent with the Morgan court’s holding on the Raquette River – – and his signature on the 2000 South Branch Moose River Settlement?

    • Paul says:

      Justin, on the settlement he has to do what his clients want.

      • Justin says:

        You don’t think his clients wanted a holding that the Moose River was navigable-in-fact, which given Mr. Caffry’s reasoning, and now this court’s, would have been easy to obtain? Why would they stop short after nearly a decade of litigating the test case they themselves sought?

        • Paul says:

          Justin, that was then this is now. Perhaps they were afraid that the court might rule against them? With the settlement thay got basically what they wanted. I agree if this case goes through an appeal and the defendants win the appeal then if Phil (or someone else) wants to paddle that river in the fall after it is “closed” then maybe we could have a new case. I agree given this precedent (again after an appeal if there is one) then that river could be ruled Navigable in Fact.

          • Justin says:

            I’m pretty sure the bar is a bit higher than “that was then this is now,” especially when it comes to property law.

  3. AdkBuddy says:

    How is Caffry doing on that resisting arrest charge he is facing.

    • Phil Brown says:

      AdkBuddy, that has no bearing on this matter. But since you asked, Mr. Caffry has told the Almanack that on February 5th, he pled guilty to a reduced charge of DWAI, a traffic violation. All other charges, including resisting arrest, were dismissed by the court.

      • Phillyrocks says:

        Anotherwords he got away with driving drunk and resisting arrest. But congrats to him on supporting something for the people of the Adirondacks for a change.

  4. Dan says:

    Cant we all just get along? I’m not familiar with this stretch of land but it sounds remote. There were only ten + people to paddle that stretch in two years and the land owners are up in arms and lawyering up? I have paddled many a stretch of water and most people I have encountered in the water or on the bank were pleasant and happy to see you. People just need to relax. I am not so naive to think that just like on the banks there are people in the water that are irresponsible and argumentative, but the amount of money and time being spent on the few is mind boggling.
    Paddle on!

  5. Jane Long says:

    What about Little Forked Lake? Any move to open that to paddlers? Or Slim pond?

  6. Charlie says:

    I jumped the gun when i said cold,selfish landlords Paul. I was being a stereotype.Forgive me.It has to do with me having the tendency to root for the underdog.It’s too bad not everyone is respectable towards other people’s property,or public property for that matter.I’ve got plenty of stories to share in that regard. There’s always the few bad apples that ruin it for the rest.

    • Paul says:

      No reason to apologize. Some landlords probably fit the bill. I like to root for the underdog also! In this particular case I think that the land owner (a partnership set up to protect and even study the environment)may have the financial upper hand (state involvement may even that playing field) but the common law probably makes the owners a bit of an underdog.

      • Paul says:

        Here is some more information on the plaintiff in this case, not your average greedy landlord:

        “In one section of our land, we have established the Shingle Shanty Preserve and Research Station for the purpose of advancing knowledge and understanding of plants, birds, insects, trees and animals of the Adirondacks. Already, there have been some valuable discoveries of consequence to researchers. We have invited scientists to come in, sometimes for extended stays, to advance their own research, and we have involved others outside the family with relevant expertise to join us in steering the Shingle Shanty Preserve and Research Station forward in an effective way. (To learn more about the Shingle Shanty, go to – See more at:

  7. 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.

    It think you place looks kinda nice too. “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.

    • John Warren says:

      Mike, I think there is flaw in your reasoning here: “And, now, to some degree, it has been taken by that state for the public”

      Exactly the opposite happened. These private interests attempted to take this waterway from the public in direct opposition to the public’s long-standing rights. Rights that are a lot older than their interest in owning the property surrounding this stream.

      The court, naturally, has made it clear that was the case.

      • Justin says:

        John, how do you square your belief and this decision with the fact that the highest court held that the section of the Raquette River that flows through Potsdam was not a public highway under the common law?

        Perhaps it all makes sense, but neither the decision nor any of the reporting or commentary has explained it yet.

        • Paul says:

          Good question. Is it here that there was no previous history of “transporting goods on that part of the river”? If not there is the answer to your question.

          • Justin says:

            tt was used for log driving for two months a year.

            “It was not capable of floating even single logs, except during seasons of high water, which were about two months in a year, and the logs so floated had to be aided in their passage by men in skiffs, canoes or on shore…It would be going beyond the warrant of either principle or precedent to hold that a floatable capacity, so temporary, precarious and unprofitable, constituted the stream a public highway.”

            Have you seen this section of the Raquette River?

            • Bill Ott says:

              Check out the Partlow Mill Dam Pond, if you dare venture onto private property. I was there off the Oswegatchie in 2009 and will not go back because I have this continuing guilt about trespassing. Arrest me for admitting this – I will gladly pay the fine. Have studied all the different maps I could download, and believe the land is private.

              Nobody I have communicated with even knows about the place. The pond, now taken over by beavers, is dammed up by a log dam (probably close to a hundred years old) held together with long railroad spikes, the type used at track switches. There is no human detriment (I wanted detritis, but it spell checked)there. I brought two spikes home.

              The point is, this pond is where logs were kept until the spring runoff allowed them to float down the Oz. From my reading over the years, I believe most of the logging up there was done in this fashion. Please enlighten me if I am in error.

              Bill Ott
              Lakewood, Ohio

              PS: I would love to be a caretaker for someplace like this.

          • Paul says:

            I think the law says that the water body must be capable of transport in its “natural state”. They have to take that into consideration as well.

      • Mike says:

        Perhaps…I am not a lawyer. But my reading suggests navigable meant for some commercial purpose, not recreation.

      • Paul says:

        John, I think you are correct. But the original intent of the common law was maybe something different than what we see now. But yes the court appears to be leaning toward the recreational use as something considered commercial for sure. But I agree with Mike the bar is low.

        Here again we see that the recreational use alone is not yet enough so the appeal, if there is one, will be interesting. The key here will be the long carry. Did these guys bringing in stuff for the camp need to do it at high water? That seems like an important question.

  8. TiSentinel65 says:

    Mike, the courts have apparently upheld that recreation is part of the commercial standard. Somebody mentioned it before and it is worth repeating, there is not a thing mentioned that would keep a small motorboat from making this same trip. My take from this is if a body of water was previously used for comercial utilty, recreation being part of that standard, that not even the state could deny you use. You could run a motor boat all the way up the Cedar River to the Carry lean to, even though it lies in the West Canada wilderness.

    • Mike says:

      If the recreation point holds then everything is navigable, no? I can’t think of an example that would not be.

      There was a 500 foot carry involved in this case so it would be hard with a motor. But, that point aside, you think these sorts of rulings mean APA SLMP rules don’t apply? Or am I misunderstanding your point.

      Another practical issue for boating routes w/o any public land is that you can’t exit your boat to take a piss anywhere. Or even just sit on a rock. Or fish. Or swim. So anyone reaching these waters will have a short stay as a matter of necessity. Correct?

      Still, in my view, this is another sad taking from responsible private land owners and a step back for the Park as a mix of public and private land. Adk landowners are used to this, I guess. I hope the owners land is respected and any paddlers that get that far let then be in peace….or better yet, having made the point, don’t go there. Try the many never visited spots on public land.

      • George says:

        Absolutely right. The decision is final so as of right now the recreation point holds. And yes as I was arguing with the editor below it would make virtually every waterway a navigatable waterway as long as it matches the criteria of navigatable in fact which most streams and a good portion of bodies of water will match in NY.

        My understanding of the law is that boater are allowed to get out a piss or do anything else. I think the law allows a boater to temporary park there boat and get out within 10 feet of the waterway. Not absolutely sure but that is what I heard.

        I agree, this is sad Mike. The mix of public and private land in the adirondacks is about 50/50. Isn’t that enough? The towns up there are dying because there is no growth at all and with more and more lands being bought up by the state there are less tourist. Here is a fact that will shock you. How many people graduated from Long Lake High School last year? One!! If the towns die up there than there goes the tourism so only the hearty people will enjoy the land. The average family will have to go somewhere else. Just ask most towns people what they feel about the APA and the state. You will get an earful.

  9. Charlie says:

    I really like what was said below about the landowners in this case. Good stewards of the land! We dont always get that.If their actions against Phil Brown were out of concerns for the ecosystems throughout his property than this is not a bad thing.I respect the owners for that.Maybe there should be some open dialogue between canoers and the owners (if that is possible) to assure that everyone is respecting the mans land.I’m all for good stewards of the land,for people who care about lifeforms other than human.

    >> Here is some more information on the plaintiff in this case, not your average greedy landlord:

    “In one section of our land, we have established the Shingle Shanty Preserve and Research Station for the purpose of advancing knowledge and understanding of plants, birds, insects, trees and animals of the Adirondacks. Already, there have been some valuable discoveries of consequence to researchers. We have invited scientists to come in, sometimes for extended stays, to advance their own research, and we have involved others outside the family with relevant expertise to join us in steering the Shingle Shanty Preserve and Research Station forward in an effective way. (To learn more about the Shingle Shanty, go to – See more at:

  10. Phil Brown says:

    Ti, the state has the right to regulate recreation on waterways, so the ruling does not mean you can take a motorboat through a Wilderness Area.

  11. TiSentinel65 says:

    Commercial utility being the standard, and recreation being a part of that standard, how could the state stop you? It has already been established that the Cedar River Flow allows motorboats.Where would a line be established saying “no motorboats beyond this point?” Cedar Lakes which feeds the Cedar River is an established impoundment. This being done for commercial utility of the river. Did they not use the river for floating logs down to the Hudson? The river is navigable in fact, maybe not by court writ, but easily passable upstream from the Cedar River Flow, no portages necessary to the Carry lean to. The ruling confuses me. You are saying the state could easily deny you through regulation your right that was established long ago and affirmed in the ruling. Why one mode of transportation vs. the other. Anybody adding insight would be helpful. This discussion always brings up many questions. Add to it the Sierra Club ruling on the Moose river and it seems there is much more to be played out.

    • Justin says:

      Has there been a real test of the state’s ability to prohibit the use of specific watercraft on common law public highways?

      The general premise is that common law rights are so basic and fundamental that they can’t be taken from the people by the state and transferred to the private sector. If the rights always belong to the people, how can the state extinguish them? Yeah, motorboats are a modern innovation, but so are kevlar and carbon fiber pack boats that displace only 2-3 inches of water.

    • Justin says:

      Lake Lila might provide a better test case. It isn’t dammed so it is “in its natural state and its ordinary capacity” whereas it sounds like the Cedar River Flow is not. If Lake Lila’s inlet is navigable-in-fact, the lake itself has to be.

      All you’d need is a little square stern canoe and a 5 HP outboard motor, which you could get down the trail real easy, especially with a cart. That rig would have a lot more “practical utility for travel or transport” than a boat that’s paddled.

      Paddlers aren’t the only ones with rights under the common law.

  12. Phil says:

    Honestly, I don’t know if the state’s authority to regulate use of a waterway has been tested. But I see that as a different issue. The common law prevents a private landowner from barring public navigation on a given waterway. It does not prevent the state from regulating use of that same waterway, presumably for a greater public good. It would be interesting to hear from a lawyer on this question.

  13. Phil says:

    Also, we have to distinguish between privately owned and state-owned stretches of a waterway.

  14. TiSentinel65 says:

    The only reason I ask is this. I see motor boats on the Cedar River Flow, but is not the Cedar River Flow part of the West Canada Wilderness? I’m just curious as to the legal ramifications. Maybe there is a covenant for their use and it is legal. The paper companies did own this land at once and covenants were part of the deed transfer.

    • Bill Ingersoll says:

      Much of the shoreline of the Cedar River Flow is part of the West Canada Lake Wilderness, but not all of it. The portion near Wakely Dam is in the Moose River Plains Wild Forest. When a waterbody is split between Wilderness & Wild Forest, it is considered part of the Wild Forest. The Cedar River Flow was specifically designated in this manner to retain motorboat use.

      Think of a navigable waterway like a road. Your deed may say that you own to the middle of the public road in front of your house, but that doesn’t give you the right to erect a tollbooth.

      Also, no one has the right to use a public road in any manner they choose. There are rules and regulations. On Interstate highways, pedestrians, bikes, and horses are banned. Same line of thinking applies to waterways, which are essentially another kind of highway.

      • Paul says:

        Like above, these ‘highways’ where these regulations apply is on public land not private land.

        Seems like you could float your giant air boat along the Wilderness section of waterway and then let her rip once to crossed the private property line. Like Phil is saying with this case the common law cannot be restricted. If that is the case I see no reason that you could not do this?

        • bill ingersoll says:

          I would assume that the common law applies to the person, not the object. I may have the right to use a certain right of way, but that right is not conveyed to every possible object I can conceive.

  15. Paul says:

    Is this why when you see a guy on a snowmobile at a private ski area he may not have a helmet on?

  16. George says:

    Careful now all you lovers of this decision who have a small stream running through your back yards. As long as a kayak can go down it they can now step out of their Kayaks and walk on your land so they can portage through. And if they trip and fall they may sue you.

    • John Warren says:

      George here is spreading misinformation. Readers would do well to get the facts.

      • George says:

        Really? Sending misinformation or you just don’t like the truth. If you have a stream on your property that is Navigable in fact and people need to do a short portage around something than they are allowed to walk on your property to get around the obstruction. Tell me how this senario is any different from this case? It isn’t. The same exact thing. Also did the judge say how long a portage can be. No! So people can walk right on your property to get around a portage even if it is a long distance. Don’t cloud peoples minds. This case just opened the door for every stream in NY to be wide open to the public as long as it is navigable-in-fact. Which in this case the judge said commercial use is recreation so that would be every stream you can get a boat on.

        • John Warren says:

          George – “If you have a stream on your property that is Navigable in fact” – that is not what you said in your previous comment. It takes more than just having a stream in your back yard. It must be “Navigable in fact” a legal term that does not include all streams you can kayak down.

          In your previous comment you wrote: “As long as a kayak can go down it they can now step out of their Kayaks and walk on your land so they can portage through. ”

          That is demonstrably false.

  17. George says:

    I didn’t realize I needed to have my comments detailed for you when it states Navigable-in-fact in the article. You need to read the decision more carefully and understand the ramifications. What I stated was not demostrably false at all. Most streams in NY can be considered Navigable-in-fact as per this decision. There is no statement how long of a portage is allowed. So hence as long as a stream meets these criteria that the judge stated 1. needs to be navigable by boat (no mention of legal distance of a portage). 2. Needs to have public access (most streams you can find a public access). 3 Needs to have been or is able to be used for commercial use. Since this judge said a guide is commercial use than guess what John, that is pretty much any stream in NY that you can put your boat in.

    Where I use to live in downstate NY there was a small stream running through my yard. I could get a boat in my part of the stream. It also had public access along the road. Eventhough that stream would be a pain to paddle down, according to this judges decision I can do it. I can walk on peoples property to portage my boat through. And guess what. They all are not large property owners.

    • John Warren says:

      This case does not apply to all streams as “George” claimed in his first comment. Other cases have bearing on this issue as well. Some of those have addressed the type of portage, and the public through-access issue. It’s not just public access, there is no right to trespass on private property, the vast majority of streams would not begin to meet the criteria.

      Some anonymous commenters (perhaps being misled by some media reports) confuse the issue to make it appear that this is some great threat to private property. While it fits their opposition to state land purchases and other anti-Adirondack Park agendas, their claims ignore the facts of this case. This case upholds the public’s right to navigate on its own waterways – nothing more sinister than that.

      Readers who would like to be more informed about the various details of this case and the series of navigation cases upon which it is based, will find plenty of reading here at the Almanack.

      I suggest starting with this 2009 story by Mary Thill:

      John Warren

      • George says:

        You are focusing on the Adirondacks which is fine. And I’ve read this decision and understand it well. You can keep saying that the public has no right to trespass on private property all you want but the simple matter of fact is this decision gives paddlers the right to portage over private lands to get back to the public right of way of a stream. That is clearly stated in the decision. This has ramification all over NY. Not just the Adirondacks. You can believe what you want to believe and call them facts but a paddler reading this decision has the right to paddle in the majority of streams in NY. That is a fact now unless this gets over turned in appeal. If it goes to appeal.

        • George says:

          This Judge opened up a large can of worms with this decision. If you don’t see this or refuse to than I am not sure what to tell you. The fact that he doesn’t say the approved length of portage is key. And the reason why he does not is because portages can vary depending on the time of year. A portage is spring time would be a lot longer in a dry summer.

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