Thursday, January 15, 2015

Appellate Court Upholds Paddling Rights

Phil Brown paddles Shingle Shanty Brook in the Adirondack ParkA state appeals court has narrowly upheld the dismissal of a lawsuit filed against Adirondack Explorer Editor Phil Brown after he paddled through private land in 2009.

The Third Department of the Appellate Division of State Supreme Court, located in Albany, handed down the 3-2 decision on Thursday morning. It affirmed a 2013 ruling by State Supreme Court Justice Richard T. Aulisi supporting the public’s right to travel down an isolated, two-mile waterway that connects two pieces of the William C. Whitney Wilderness.

“We’re thrilled and gratified that the Appellate Division agreed that Phil Brown did not commit trespass because he and the general public have the right to canoe through this waterway,” said Tom Woodman, publisher of the Explorer, a nonprofit newsmagazine which also publishes Adirondack Almanack. “We believe that this decision will influence courts across the state and strengthen the right of the general public to have access to rivers that for some stretch pass through private lands. These are fundamentally public thoroughfares and are available to all.”

Because two judges dissented, the landowners have an automatic right to appeal the decision to the Court of Appeals, the state’s top court. Dennis Phillips, the attorney representing the landowners, said it was “too early to tell about any appeal.” John Caffry, who represents Brown, said he would not be surprised if there is an appeal.

In May 2009, Brown paddled through land owned by the Brandreth Park Association and the Friends of Thayer Lake. He later wrote a story for the Explorer about the common-law right of public navigation.

The following year, the landowners sued Brown for trespass. The New York State Department of Environmental Conservation, however, agreed with Brown that the waterway is “navigable-in-fact” and therefore open to the public, and so Attorney General Eric Schneiderman intervened in the case in defense of that position.

The landowners contended that a waterway must have a history of, or capacity for, commercial use to trigger the common-law right of navigation. Attorneys for Brown and the state argued that any waterway suitable for trade or travel is navigable-in-fact.

In its ruling today, the Appellate Division pointed to testimony by Donald Potter, one of the landowners. Potter’s description of getting to and from camp via canoe and ferrying in food, building materials, and other goods proved that the waterway is useful for transportation and therefore legally navigable, the court found.

The fact that the waterway was small didn’t matter, according to the majority’s opinion, written by Justice Elizabeth A. Garry. “A stream that can carry only small boats may nevertheless be navigable-in-fact,” Garry wrote.

And while the waterway is well off the beaten path, “the standard for navigability-in-fact is more concerned with a waterway’s capacity and characteristics than its location,” the justices found.

“The evidence establishes that the waterway has the capacity to provide practical utility to the public for both trade and travel,” the ruling said.

The two dissenting justices said that the waterway’s remoteness – and the difficulty of undertaking such a journey – makes the stream of little practical use to the public. Concluding that such a small route is open to the public, wrote Justice Robert S. Rose, would “unnecessarily expand our navigability-in-fact doctrine and destabilize settled expectations of private property ownership by opening up remote, unpopulated, privately owned bodies of water as long as the public has some way, however arduous and recently acquired, of gaining access to them.”

UPDATE: This story was updated with a comment from Dennis Phillips, the attorney representing the landowners.

Photo: Phil Brown on Shingle Shanty Brook.

DISCLOSURE: The Adirondack Almanack is a publication of Adirondack Explorer magazine. Phil Brown is Editor of Adirondack Explorer and a regular contributor to Adirondack Almanack.

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23 Responses

  1. Paul says:

    Congratulations Phil.

  2. Walker says:

    I guess we won’t know for a while yet whether the fat lady has sung.

  3. Mike Rawdon says:

    Congrats Phil!! I really hope this is the end of it. But if not, here’s hoping you win yet again on appeal.

  4. Excellent decision. Intervention by the State was key. And they came in on the right side.!

    I posted a link to the decision on my blog at loonlakenews.wordpress.com

  5. Marco says:

    Well done. I am happy another step has been taken to keep our waterways free. Good Luck Phil Brown!

  6. […] to an article on AdirondackAlmanack.com, the court narrowly upheld the dismissal of a lawsuit filed against Adirondack Explorer Editor Phil […]

  7. Ginny Alfano says:

    Absolutely thrilled with this decision! Congratulations, Phil Brown. We have wanted to kayak Shingle Shanty Brook for years. Now, because of all your hard work and dedication, it looks like we’ll have that chance. Thank you.

  8. Colvin says:

    Congratulations, Phil.

  9. JoeH says:

    A job well done P,

    It appears Pandora’s box has now been left wide open, Now get out there and Spread the Word. The decision may prove to be the death knell for quiet waters in the park. Yahoooo!, here we go merrily down the stream, private or not.

    Sadly,

    JoeH

  10. Fritzie Blizzard says:

    It’s long been understood by many that any waterway that does NOT originate on a piece of “private” land, regardless of who owns it or posts it, is open to the public to travel on or in … as long as they don’t step onto that private land without the owner’s approval. I have no idea whether this is somewhere written in legalese. It IS also my understanding that the Adirondack State Park belongs to the citizens of NYS.

  11. Wayno says:

    YYYYYAAAAAYYYYYY!!!!

  12. Wayno says:

    So does this mean that you can paddle on to Nehasane Lake and thru to Stillwater?

  13. neversink says:

    If its navigable, then the rights belong to the captain of the kayak. Hooray for a wise decision. Hope the appeal, if there is one, is turned down. The selfish should not be able to step on the rights of any. My navigable section of a river is open to all. Why not everyone else’s!!!! I have no problem with kayakers passing through. They always have been respectful of my private land.

  14. Dan Ling says:

    I understand and appreciate your concern that such rulings could result in increased access to remote, quiet waterways. Nobody wants to degrade quiet, unused areas, which make prime habitat for wildlife. But does anyone really have, let alone deserve, sole access to a navigable waterway which crosses public land?
    This ruling provides yet another legal backing for what has simply always been legal. It does not open “private lands.” It supports the legal navigation of waterways which are, in fact, navigable. These flow over lands owned privately, but the owner does not own the water, not the right of access to it upstream or downstream from their lands. In the 19th century, rich landowners took the right of navigation from us all illegally. At that time, it was a travesty. It still is.
    One could argue that by reaffirming our right to navigation, the court and State have potentially increased the use of remote, quiet areas. I would agree with this statement. But do landowners have an illegal sole right to these waterways? And even if they did (which they never have), is it right to deny access to everyone, perpetually, to all the lands, State owned or not, which lie beyond? Clearly, it is not right. It is neither ethical nor just nor, in fact, legal, since a waterway which is navigable in fact is legal to navigate in New York State.
    Will this be the death knell for quiet waters? Well, there are wild, quiet waters open to the public now on State lands. Most of these waterways have some stretches of whitewater and are in remote areas, making them little travelled. Reaffirming legal access to these waters will not increase use significantly. There are quiet streams that have been long illegally closed which see little or no travel. Asserting the public’s right to navigate these waters will no doubt increase use on them and cause potential degradation. But access does not necessitate degradation. Most paddlers do adhere to low-impact practice, and navigation over private lands does not invoke any right of access to those lands for recreational use. If we are to hold that the public’s right to enjoy quiet stretches of water necessarily degrades those waters, then we should close all access to all such waterways in the Forest Preserve. Nobody wants to do that – for good reason. We are striking a balance between preserving the resource to the maximum extent possible while maintaining the public’s right to use and enjoy it, and that means using navigable rivers which flow over private lands.
    Justice Robert S. Rose wrote that this ruling will “unnecessarily expand our navigability-in-fact doctrine and destabilize settled expectations of private property ownership by opening up remote, unpopulated, privately owned bodies of water as long as the public has some way, however arduous and recently acquired, of gaining access to them.”
    But this statement is factually incorrect three times over. Firstly, this ruling does NOT expand our navigability doctrine – it simply re-asserts that which has always been there and which previously was the practiced law. I doubt anybody sympathizes with the “destabilization of settled expectations” when such expectations were neither right, informed, nor wise. Second, it does not “open up privately-owned bodies of water.” These waters are already open to the public and have ALWAYS been. They were closed illegally, after the navigability doctrine was already long established. And third, neither has this public right been “recently acquired.” It is obvious that this man is using “slight of words” and thus likely has political motives. It would be naïve of us to think that he is not using false statements to further otherwise unjust support of the wealthy landowners.
    Access to these historic navigable waterways is a right, and it is our generation’s legacy that we assert these rights for future generations to have quiet, peaceful and low-impact access to these waters, and the lands beyond, which their ancestors wisely fought to protect.
    We owe John Caffry our thanks for his tireless efforts on our behalf over all these years.

    • Paul says:

      Dan, The common law right of navigation is not about “peaceful and low impact access to these waterways”. It is about “travel and trade” – commerce. Apparently in this case recreational paddling is included. But any waterway, no matter how small or quiet, found to be navigable-in-fact under the law is open for business.

      • Dan Ling says:

        Paul, if I’m hearing you right, do you think commercial access is a primary concern of landowners? That’s a good point to keep in mind. I’m sure you’re literally correct about “travel and trade,” and it’s been years since I read the transcripts of the Moose River proceedings that I was signatory to. On the other hand, based on your description, I would say that “travel” covers recreational use well. I would also argue that recreational use is, and has always been, a big part of what it’s about in the Adirondacks, where the navigability issue resonates most loudly today.

    • Grant Mcbee says:

      Interesting… So is their a “public right” to boat through the National Forest or a National Park?
      The American Canoe Association and American Whitewater made this claim against the Forest Service in Federal court; claiming a constitutionally protected liberty interest was being infringed upon by limiting paddling on the Chattooga Wild and Scenic River. The Federal Judge ruled that boating down a river is not a constitutional protected right and the argument had “no merit”. Paddling -or biking, hiking or driving- on a public waterway, trail or road is a privileged that can be revoked, limited or suppressed by a governmental agency with authority over that public space.. AW v Tidwell 959 F.Supp.2d 839,865 (2013) http://scholar.google.com/scholar_case?case=18117268218655283974 @ p. 865

      • John Warren John Warren says:

        The Adirondacks are not a publicly held National Park. These lands are private, and like any public transportation route through private property, they are open to the public.

        • Grant Mcbee says:

          IF…and only IF, the waterway is determined to be navigable by a court. Certainly a gutter that moves water is not a “public transportation route”.

  15. Dan Vitale says:

    It’s simple. For landowners, if it is a navigable stream, you own to the bank. If it is a non-navigable stream, you own to the middle.

    • Grant Mcbee says:

      The judgement did nothing more than uphold that a navigable stream is public -not private- property. The has been the case for over 2 hundred years.

      Paddlers have no individual “rights”. Now it is clear that the government -not the adjacent property owner- controls the rights of the public to access or not, or tax, or not or limit or not a navigable waterbody. see AW v Tidwell 959 F.Supp.2d 839,865 (2013) upheld by the 4th circuit.

      • John Warren John Warren says:

        This has not been the case for over 200 years obviously, which is why the case was needed to reopen this waterway. There are other examples in the recent past as well, such as the Moose River.