Tuesday, February 9, 2016

Navigation Rights Case Heading To NYS Court Of Appeals

For five years, a group of Adirondack landowners has engaged in a legal battle with the editor of the Adirondack Explorer and the state Department of Environmental Conservation over navigational rights on a remote waterway in the William C. Whitney Wilderness. Now both sides have reinforcements.

In December, lawyers representing environmental, recreational, and property-rights groups were preparing to file friend-of-the-court briefs (also known as amicus curiae briefs) in the case. Because the dispute has reached the Court of Appeals, the state’s highest tribunal, the outcome could have widespread consequences for landowners and paddlers.

The case stems from a two-day trip that Explorer Editor Phil Brown took in May 2009, starting at Little Tupper Lake and ending at Lake Lila. En route, he paddled about two miles through private land — on Mud Pond, Mud Pond’s outlet, and part of Shingle Shanty Brook. The landowners, the Brandreth Park Association and Friends of Thayer Lake, sued him for trespass the following year.

In February 2013, State Supreme Court Justice Richard Aulisi threw out the lawsuit and ruled that the landowners had created a public nuisance by stretching a cable across Shingle Shanty Brook. In January 2015, the Appellate Division of State Supreme Court upheld Aulisi’s decision, but two judges dissented, setting the stage for the Court of Appeals showdown. The earliest the panel would hear oral arguments is late March.

At issue is whether the state’s common law gives the public the right to paddle the Mud Pond Waterway, as it has been referred to in court papers. The court’s decision could apply to similar waterways throughout the state.

At issue is whether the state’s common law gives the public the right to paddle the Mud Pond Waterway, as it has been referred to in court papers. The court’s decision could apply to similar waterways throughout the state.

The Adirondack Mountain Club (ADK) and Environmental Advocates of New York were planning to file an amicus brief on behalf of paddlers’ rights. The Adirondack Landowners Association, New York Farm Bureau, and Property Rights Foundation of America were planning to file a brief on the other side

The main litigants — Brown, DEC, the Brandreth Park Association, and Friends of Thayer Lake—submitted briefs to the Court of Appeals last year

Dennis Phillips, the lawyer for the landowners, contends that a waterway must have a history of or at least a capacity for commercial traffic for the common-law right of navigation to apply. He contends that the Mud Pond Waterway is too small and remote for commercial use.

Brown’s lawyer, John Caffry, and the state argue that a waterway is “navigable-in-fact” — that is, open to the public — if it is useful to the public for trade or travel. They contend that Mud Pond Waterway has practical utility for both.

The amicus briefs are expected to shore up and amplify these arguments.

“It’s big for the Adirondack Mountain Club,” Neil Woodworth, executive director of the club, said of the legal case. The club advocates for paddlers, hikers, and other recreational users of the Adirondack Park.

Woodworth, who is an attorney, said his brief — to be filed jointly with Environmental Advocates — will address issues raised by the two judges who dissented from the Appellate Division decision. The dissenters had agreed with Phillips that the waterway is too small and remote to be of practical utility to the public.

“To conclude that such a remote and narrow stream may be navigable-in-fact reduces the navigability test to an improper one of mere access and floatability — i.e., as long as any member of the public can successfully travel by canoe on the stream in question, the stream has capacity and is navigable,” the dissenting judges wrote.

Woodworth contends that the remoteness of a stream is immaterial. “If the only way you can qualify [is] if a waterway is close to roads and population centers and useful for the carriage of goods in the modern sense, hundreds of waterways across New York State would be closed,” he said.

In fact, Caffry says the waterway is not all that remote. He canoed from Lake Lila to Lilypad Pond, utilizing the Mud Pond Waterway, in October 2009. Both Lila and Lilypad are part of the state-owned Whitney Wilderness. The round trip, including a hike to Little Salmon Lake, took several hours. “The paddling was easy, going both upstream and downstream,” Caffry said in an affidavit filed in the case. “The water was always at least two feet deep.”

Brown’s trip was longer because he started at Little Tupper Lake and visited a number of ponds before reaching Lilypad Pond. By paddling down the Mud Pond Waterway, he avoided a 0.8-mile carry between Lilypad Pond and the publicly owned stretch of Shingle Shanty Brook. The carry trail, built by DEC, lies in the Whitney Wilderness.

The Brandreth family has owned the land or the recreational rights to it since 1851. When the state purchased tracts on both ends of the Mud Pond Waterway, in the late twentieth century, the waterway became accessible to the public.

Even so, the three appellate justices who sided with Brown expressed reservations about opening up to the public a stream that had been private for more than a century, saying the decision “may destabilize long-established expectations as to the nature of private ownership.”

Mark Miller, managing attorney for the Pacific Legal Foundation’s Atlantic Center, hopes the Court of Appeals views Brown as a trespasser. “Society relies on stability and the law. And private-property rights should be something you can count on,” he said. More than 150 years since Benjamin Brandreth bought the property, “the courts shouldn’t simply decide that should no longer be true,” he added.

Miller, who planned to file an amicus brief on behalf of the Farm Bureau and the Property Rights Foundation, argues that the state has an obligation to compensate the Brandreths if it takes away some of their property rights.

Brown and the state argue that the taking argument is off the table, because Phillips did not bring it up in the original lawsuit. “They never preserved those issues,” Caffry said. “They never raised them in the lower court, and this is not part of this lawsuit.”

Phillips did not respond to requests for comment, but in legal papers he contends that the issue is properly before the court. Of the Appellate Division decision, he asserts: “If this is not a judicial taking, nothing is, and the Plaintiffs should not be foreclosed from raising it.”

Miller says the courts got other things wrong. He noted that Brown made a five-hundred-foot carry on Brandreth land to avoid rapids along the Mud Pond outlet. That portage, he said, is long enough to make the route non-navigable. And, like Phillips, he contends that the route is so narrow and so shallow that it can’t support commerce.

“If the courts are going to say that we no longer have a commercial-use component, that will be a new holding,” Miller said. “That will be a new concept in New York law.”

The lower courts held that the Brandreths’ longstanding use of the waterway to ferry supplies and furs indicates that it has a history of and capacity for commercial use

In any event, Woodworth maintains that a 1998 Court of Appeals decision, involving paddlers on the South Branch of the Moose River, found that commercial use isn’t necessary to establish navigability-in-fact.

“Today, in the latter part of the twentieth century and twenty-first century, the most common use of waterways across the state is for recreational travel,” he said. “They’re not using it for transportation of goods.”

Phillips disagrees with Woodworth’s interpretation of the Moose River decision, insisting that commercial use has always been and remains an essential element of the navigability test.

In a sense, then, the Court of Appeals is being asked to clarify what it meant in 1998.

Curious clause in 2007 deed.

Inside the haystack of legal papers generated by the five-year trespassing case against Explorer Editor Phil Brown is a curious clause in a deed to the property he paddled through

When the Adirondack Nature Conservancy sold the land to the Friends of Thayer Lake in 2007, it included a clause in the deed that, to a layperson, may seem to give the public the right to paddle the very route that Brown paddled in 2009.

The clause states that the property is “subject also to the right of the public to navigate the surface waters of Lilypad Pond, Mud Pond, the outlet leading from Mud Pond to its confluence with Shingle Shanty Stream, and Shingle Shanty Stream northeasterly from its confluence with the Mud Pond outlet to the property line between the lands herein conveyed and lands owned by the State of New York.”

Brown’s lawyer, John Caffry, argued in legal papers in 2014 that by accepting the deed, the landowners were legally required to open the waters to the public.

The Appellate Division of State Supreme Court rejected this argument, though it agreed for other reasons that the waterway should be open. In a footnote to its decision, the court said the clause was not binding “as no private ownership interests affecting such rights had been acquired or could be conveyed.”

In other words, the public right of navigation either exists or it does not, irrespective of whatever the deed might say.

The Nature Conservancy bought the tract from International Paper, but the Brandreth Park Association owned the recreational rights, and it still does. Friends of Thayer Lake, a subset of the extended Brandreth family, owns the rest of the property rights. Thus, both entities are plaintiffs in the lawsuit against Brown.

The public right of navigation, however, is separate from private recreational rights. If the waterway is indeed “navigable-in-fact,” the public right is not affected by the recreational rights held by the Brandreths.

By paddling the waterway, travelers avoid a 0.8-mile carry across state land between Shingle Shanty Brook and Lilypad Pond. Connie Prickett, a spokeswoman for the Nature Conservancy, said the organization put the clause in the deed “to leave the door open for [the state] to establish a publicly accessible water route across the ponds and outlets as described in the deed.”

Photos, from above: Shingle Shanty Brook (2009 photo by Susan Bibeau); maps by Nancie Bernstein; and Mud Pond and posted sign photos by Phil Brown.

This story originally appeared in the Adirondack Explorer, a nonprofit newsmagazine devoted to the protection and enjoyment of the Adirondack Park. Get a full print or digital subscription here.

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21 Responses

  1. Paul says:

    “The court’s decision could apply to similar waterways throughout the state.” This is stated twice in a span of three sentences, but is it really accurate? Why would this decision apply to anything other than this one waterway. I could open similar waters for “litigation” if you want to look at it that way but these cases have shown that unless you go through this legal process you don’t really know.

  2. Paul says:

    An important (albeit tangential) fact here is that the Friends of Thayer Lake have ownership of the property in order to preserve the lands and waters from development and human use. They are not your standard greedy landowners.

  3. Bruce says:

    This issue will not go away anytime soon, because it is brought up periodically in other parts of the country. Whatever decision comes out of this, one side will say it applies everywhere, and the other will say it applies only to that particular waterway.

    I believe states need to closely examine and possibly re-write their waterways laws (many of which are very old) to make them clearer.

    • Boreas says:

      I agree. If the nature of waterway usage has changed dramatically, the laws need to be redesigned to guide future usage. Perhaps landowners could be offered property tax breaks for allowing public access as in land easements – essentially treating their waterways the same as their land. I can certainly see both sides of the argument.

      • Paul says:

        Here we are really reaching way back to an old common law for this. I don’t think that most landowners would have any interest in a new law that would open up their private property to public use. In this particular case the Friends of Thayer Lake are trying to preserve this land from over use and development. There is no shortage of public water for recreation in the Adirondacks and even in this case there is a portage (built by the DEC in fact) that can be used to get around this small stretch of private land if the water is determined not to be Navigible-in-fact under this older law.

    • Todd Eastman says:

      The laws are clear, that specific property owners have been in violation of these laws for over 150 years should be the issue.

      Any chance to drive a stake through something the Pacific Legal Foundation supports can have a good aspect…

      • Bruce says:


        It’s not about creating new laws forcing landowners to open their property, it’s about clarifying exactly what existing laws concerning passage on waterways mean. More specifically, whether or not the property owner can control traffic on waterways connected to public access.

        Landowners will not be required to allow passage to or from waterways across their land without an easement agreement. In fact the law seems clear on that point…I quote: “Also, the public may not cross private property for the purpose of accessing or leaving a navigable waterway.” This opens the question, when Phil portaged, was he violating this part of the law (trespassing)?

        The DEC website explains it pretty well, but still leaves some room for questions and lawsuits.


    • Bruce says:

      I amend something I said…portaging is allowed if it is the most direct and practicable route around unnavigable parts of the waterway. I missed that part on the first reading. That leads me to believe that in Phil’s case, paddling the waterway is the entire question.

  4. Tim-Brunswick says:

    Frankly, I hope the Landowners come out on top. If they own the property on either side of the waterway, they should be able to post it.

  5. Marco says:

    Paul, whatever the motivation is, the legal issue remains with the courts as to their interpretation of the law. Recreation, “thru” paddling, guided trips, etc all are legitimate commercial uses of the waterway.

    In England (the model for most US laws) they allow the rights of people to pass thru any lands as needed (except under some specific “security” guidelines.) If you do not harm anything then you can pass thru at your own risk. This freedom is rather blatant and is one the US laws try to ignore and make go away, with subsequent legal entanglements. Repealing a bad law, well, that is what courts do. I would guess that as this continues, even the federal courts will get involved. It is far more reaching than many court decisions. We need more freedom, NOT more laws to fix broken ones.

    • Paul says:

      The idea that “recreation” meets this commercial test has been made by a lower court this is an opportunity for the higher court to weigh in. But that is only one test and not the only determining factor. I think most would agree that a puddle doesn’t pass the navigable in fact test even if someone wanted to float their wears across (clearly meeting the commercial test) it so the question is where is the line?

  6. Marco says:

    Legal issues means there is a real problem with a law. Speeding can be considered as an example. It is NOT based on the consequences. It is a law to protect everyone on the road, though. Is a car accident considered a homicide if someone dies? Sometimes, but there is no clear cut rule. To the speeder, he needs to be aware of the consequences of his actions. And a whole body of lesser sanctions are invented to keep a speeder from the consequences of his actions. These range from unsafe driving, a simple fine, and reckless endangerment as well as other potential sanctions. Clearly, this huge governmental “business” (from it’s start at registering a car to BE on the road to a person going 5mph over the speed limit getting a “speeding” ticket) needs to be revamped to include the consequences of his actions. White collar burglars (identity theft) are treated differently than a common house break in, for another example. Again, the consequences of the any action is not usually considered. But, they can be just as deadly if you cannot pay for “improved” medical care.

    The glut of laws with no purpose other than to restrict some action is intolerable to me. Laws were meant to govern people in their interactions with others. Our laws often fail at this and merely restrict freedom. Mr. Brown is a person I respect. He did nothing wrong. But, they tried to “nail” him for exercising his freedom. Bad.

    • Bruce says:


      I tend to agree except for your last point. The point with Mr. Brown is for the court to decide whether or not he actually was trespassing. If the court decides against him, then under the law he was doing something wrong, and deliberately I might add. He wasn’t there by accident or inadvertently.

      As you said, in England a person may cross another’s property, but that doesn’t mean there is no law regarding trespassing. The person passing through has to do it in a manner not to damage the property, or they can be held liable under the law…is that not correct?

      I do believe our system of civil jurisprudence could be closer to the system in the UK where if I’m not mistaken, you bring a suit against someone and you lose, you pay. Cuts down on frivolous lawsuits.

      • Marco says:

        Yes, I agree that he deliberately provoked an incident to test water ways laws. I used to think as you do. But, there was enough evidence that he was deliberately testing the law. There will always be laws someone disagrees with and he has the right to dissent, too. He may be charged with any damage if they can prove he was doing any.

        Yes, In England, any damage is the responsibility of the walker. Again, this deals directly with the action/consequences. Under US laws, just setting a fine for trespass is not correct if he did no damage, or, if he did a LOT of damage.

        Well, yes on your last point. Courts interpret the law. Violators, should not be held responsible for court costs until the person at fault is determined. Deliberate actions against property owners should be proved first. There should have been no need to test this by Phil Brown. Any citizen could have brought it up in court as a violation of civil rights, ie the right to travel freely.

  7. ADKerDon says:

    Arrest and jail Brown! He trespassed on private property. The state owns enough lands so that there is no need to trespass on private property. He was just too lazy to do the portage. Arrest and jail Brown now!

  8. Phil Brown Phil Brown says:

    The above story was written for the January-February issue of the Adirondack Explorer newsmagazine. Since its publication, amicus briefs have been filed on both sides, and the Court of Appeals has scheduled arguments for March 24.

  9. Ryan says:

    I fully believe that if you can float a canoe/kayak/whatever down a body of water that it is publicly accessible. No private individual owns the water unless it is fully contained within his/her own property. That being said, I believe the decision on trespassing comes down to the fact that he portaged the canoe across private property. The moment he stepped out of his boat, he was trespassing. When he saw this it wasn’t navigable, he should have turned around. Nobody has a right to walk on another person’s land without permission, regardless of how well-meaning the person is. We don’t need new laws. We just need people (owners and paddlers) to understand and respect the ones we already have.

  10. common sense says:

    book ’em Danno

  11. rc says:

    I do like seeing rich white people get all huffy about THEIR land. Which they’ll probably sell during the next economic downturn or when their kids decide a beach house is nicer

    • Paul says:

      I believe this property is protected under a conservation easement. It is basically being used as a laboratory to study Adirondack ecosystems. Some of the few remaining properties that is not being stomped all over by the public.

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