A state appeals court is expected to hear arguments this fall in a trespassing lawsuit filed against Adirondack Explorer Editor Phil Brown after he paddled through private land on a remote waterway that connects two tracts of state land in the William C. Whitney Wilderness.
The landowners—the Brandreth Park Association and Friends of Thayer Lake—sued Brown in the fall of 2010, more than a year after he wrote about the paddling trip for the Adirondack Explorer.
Last year, State Supreme Court Justice Richard T. Aulisi dismissed the suit, but the landowners have appealed to the court’s Appellate Division in Albany.
John Caffry, Brown’s attorney, said the five-member court probably will hear arguments in October or November. A decision might be handed down within a few months after the arguments.
Brown paddled the disputed waterway—Mud Pond, Mud Pond Outlet, and a section of Shingle Shanty Brook—as part of a longer canoe trip in May 2009 that started on Little Tupper Lake and ended on Lake Lila. By paddling the two-mile waterway, Brown avoided a three-quarter-mile carry across state land. In court papers, Caffry contends that the plaintiffs’ stretch of water is only part of a ten-mile waterway that flows from Salmon Lake to Lake Lila.
Caffry and New York State, which intervened in the case, argued that the waterway is “navigable-in-fact” under the common-law right of public navigation and thus open to paddlers. Aulisi agreed.
In briefs filed with the Appellate Division, the parties wrangle over many of the same issues heard by the lower court. The primary question is whether a waterway needs to be able to handle commercial traffic to be considered navigable-in-fact or whether recreational use alone meets the test.
Dennis Phillips, who represents the plaintiffs, contends that a waterway must be useful for commerce to trigger the common law and that the waterway in question is too narrow, shallow, and remote to be of use for transporting goods to market. And given the existence of the carry trail, he said, recreational paddlers do not need to use the waterway.
“The navigability-in-fact doctrine was never intended to be applied to the small and remote ponds of the state where there has never been and will never be any necessity to have an avenue to market,” Phillips argues in court papers. Recreational use can be part of the legal test, he says, but only in conjunction with commercial use.
Caffry, however, contends that a 1998 ruling by the Court of Appeals, the state’s highest court, affirmed that recreational use is sufficient. Aulisi echoed language from that ruling in his decision, saying the waterway has “practical utility for travel or transport.”
In essence, the Appellate Division is being asked to clarify what the Court of Appeals meant in its 1998 decision. In that case, the Adirondack League Club sued the Sierra Club and five paddlers who traveled down the South Branch of the Moose River. The parties eventually settled the case.
Phillips also asserts in court papers that the Department of Environmental Conservation and Sierra Club are working in cahoots to expand paddlers’ rights by creating a “‘canoeing-in-fact’ doctrine . . . a ‘Have Canoe, Will Travel’ notion.”
Responding in an email, Caffry said Brown hasn’t participated in any Sierra Club advocacy with DEC and, in any case, the argument is irrelevant. “What matters [are] the facts on the ground, the history of usage of the waterway, and its potential for future use for trade and travel by the public,” Caffry said. “And those facts show without a doubt that the waterway meets the test for navigability-in-fact, as set out by the Court of Appeals in the 1998 Moose River decision.”
And the existence of a carry trail doesn’t affect the navigability either, according to Caffry. The argument of Phillips, he said in court papers, “is akin to saying that the public had no right to travel on State Route 9 through the Adirondacks because Interstate Route 87 was built parallel to it.”
Assistant State Attorney General Philip Bein agrees with Caffry that recreational use is sufficient to trigger the public right of navigation. “Going back to English common law, the public’s easement on water included ‘the right to use the stream for the purpose of passage,’ regardless of the purpose of such passage,” he wrote in his brief. Furthermore, Bein said the plaintiffs’ historical use of the waterway to transport goods is evidence that it is suitable for commercial use as well.
Phillips argues that his clients’ use of their waterway to carry building materials, furs, and other goods does not transform it into a commercial artery.
The Appellate Division could uphold or overturn Aulisi’s ruling or return it to the lower court for further consideration. It’s also possible that the parties could take the fight to the next level, the Court of Appeals.
During the appeal, the waterway is open to the public.
Photo: Phil Brown paddles Shingle Shanty Brook in 2009 (by Susan Bibeau); Map by Nancy Bernstein.