Monday, July 21, 2014

Paddling Case Advances To Appellate Court

Map by Nancy BernsteinA 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.

PB_Shanty-600x386Dennis 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.

The post Paddling case advances appeared first on Adirondack Explorer.

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11 Responses

  1. Paul says:

    I have wondered where the interests of environmental groups like the Sierra Club might lie in these types of matters.

    On the surface this has always seemed like a recreational issue. A way to define what waterways should be open for public use (even if the use is something like heavy commercial transport). I have wondered why would a group trying to protect the environment want to wade into this issue?
    Perhaps this is it. Here is story from Canada that relates to this issue:

    This part is interesting:
    “Under the old rules, a waterway was considered “navigable” if a vessel such as a canoe was able to float across it. Anyone who wanted to build anything on or near one of these waterways needed permission from Transport Canada, which would determine if the project threatened the ability of anyone to navigate the waterway.”

    This could make for the argument that more navigable waters could make for some way to protect them from development.

    Or maybe they just want to make it clear what is open for recreational paddling in that this opens up areas (I guess that were open) to see. That makes you think more about stewardship and would support their cause in that way?

  2. ChipMonk says:

    The clock is at 5 years and running since Phil’s paddle through Shingle Shanty in May, 2009 andm based on Phil’s article in Explorer, the Atlantic Chapter of the Sierra Club made a detailed complaint to DEC and the Attorney General in August 2009 about the illegal blockages of this navigable-in-fact waterway. DEC investigated, offered Brandreth a “deal” for a three-year trial period of opening the waterway to the public, which Brandreth refused in August 2010 and DEC told them to reconsider “or else.” Then in mid-November Brandreth unexpectedly sued Phil for trespass.

    This case drags on, but at the same time it would be nice to get a decision from the Court of Appeals, our highest court, as we did in the South Branch of the Moose River case in 1998 (Adirondack League Club v Sierra Club). That would be a truly definitive decision. Either way, we will be waiting a bit longer for the end of this.

  3. Glenn says:

    A better question to ask than why is the Sierra Club involved is this: “Why would anyone gripe about someone paddling a canoe down a river or creek?” Despite some state laws that say a landowner owns the bottom of the river, I do not believe any state says they own the water running through it (western water rights notwithstanding). I mean come on, do they own the water while it flows over their land, and then it transfers ownership to the next adjacent landowner? Gimme a break, that is ludicrous. It simply makes no sense to refuse someone the right of passage.

    • Paul says:

      It also gives them the right to portage on adjacent private land to avoid obstacles so it is a bit more complicated than just the water. You could make the legal argument that a fairly long portage (there are many) is required that could travel pretty far away from the water and onto adjacent private land. Especially if this is applicable to smaller and smaller waterbodies. The moose river is one thing and Shingly Shanty Brook is smaller what else is covered under the law? The common law does not stipulate how long a portage could be. It’s complicated.

  4. troutstalker says:

    I paddled this wonderful trip in the spring of 2013. I really appreciate the ruling to open the waterway. The signs and cable have been removed but the camera’s remained. Are they monitoring the amount of traffic? If we all respect their property and don’t litter maybe they will respect us paddlers. Are they worried about this or just vindictive? Please keep this route open! I didn’t see one human being for 4 days! Beautiful scenery, moose, bear and deer tracks and excellent fishing!

    • Paul says:

      If you look at the court documents they talk about several people they have on camera who are using the land along the brook for hanging out that has nothing to do with a portage.

      Doesn’t change how the court should rule but it does describe some of what the landowners will have to deal with having these type of waterways open.

  5. Little Buckaroo says:

    Paul – Canada has nothing to do with it. Thsays that recreational use e only thing the court is looking at is the case law in NYS, based on the fact that we adopted English common law in 1777. There are two main cases on record – Morgan v King (1866) which provides the criteria for what constitutes navigability in fact and Adirondack League Club v Sierra Club (1998) which says that recreational use can be a test of navigability as an adjunct of traditional commercial use.

    The Sierra Club followed up on Phil Brown’s trip through Shingle Brook in 2009 by making a formal and well-documented complaint to DEC and the AG about Brandreth’s blockages in the river which constitute a public nuisance on a public right of way. The State investigated and the rest is history. The rest of it will come out in the wash. Judge Aulisi in the lower court made a very sound decision. It will be upheld by the Appellate Division.

    That’s it. No need to clutter it up with

    • Paul says:

      LB, I understand that and of course I agree the two are not linked in any legal way. Here I was just saying that perhaps it sheds some light why a group like the Sierra Club would really be involved in what looks like a purely recreational/commercial type of issue. Most environmental groups don’t stand behind issues that make it easier to access remote wilderness areas or allow for more commercial travel on waterways which this navigation law may allow (the question being clarified by the courts).

      I don’t agree that you can say for sure that it will be upheld on appeal. If the past use of the waterway had truly been commercial like what was on the South Branch of the Moose River than the appeal would not hold much water but that isn’t the case here.

      In this case the Brandreth’s efforts to block the waterway was in an effort to protect the waterway and the wild land that it passes through. Not really the standard troll under the bridge maneuver.

      In the end this will only apply to this particular waterway it will have to be adjudicated one stream at a time. A new law to clarify this issues is probably in order.

  6. Paddling Case Advances To Appellate Court » Upper Saranac Lake Association says:

    […] Read Article […]

  7. Robert says:

    To complicate matters, this does seem to vary from state to state. Here in NJ, a ruling from 1957 stated that navigation upon a private navigable-in-fact waterway is legal, but “recreation” is not. Although in many states, and seemingly in Federal decisions, navigability today carries with it recreational rights – although, importantly, not for fishing, only for boating – NJ still appears to be a holdout from what I’ve encountered, still based on this 1957 decision. Has anyone any experience or knowledge of the current situation in NJ?

  8. Alan M says:

    In many states including the northwest and northeast historical uses such as splash dam logging have been ruled to be commercial navigation. This has lead to even the smallest streams, even those much too small to get a canoe on, to be ruled legally navigable. There’s lots of case law to be found on this in regards to property boundary law where the ownership of the streambed of navigable waters generally belongs to the State. Whearas a boundary to a non-navigable stream generally goes to the thread.

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