Monday, March 21, 2016

Top Court To Hear Arguments This Week In Paddling Lawsuit

Shingle Shanty BrookThe state’s highest court will hear arguments in Albany this Thursday in a trespassing lawsuit filed against Explorer Editor Phil Brown after he canoed through private land near the William C. Whitney Wilderness.

Several organizations have filed friend-of-the-court briefs in the case, which could have statewide ramifications.

The Adirondack Mountain Club and Environmental Advocates are siding with Brown in arguing for paddler’s rights. The Adirondack Landowners Association, New York Farm Bureau, Empire State Forest Products Association, and Property Rights Foundation of America are siding with the landowners.

The disputed waterway, about two miles long, connects two pieces of the state-owned Whitney Wilderness. Brown paddled it in May 2009 as part of a longer trip from Little Tupper Lake to Lake Lila. He was sued the following year by the Friends of Thayer Lake, the main landowner, and Brandreth Park Association, which holds the recreational rights to the privately owned tract.

Since the waterway is navigable, legally accessible, and useful for travel, Brown maintains that the public has a common-law right to paddle it. The state Department of Environmental Conservation agrees and has joined the case. The landowners contend the waterway is too small and remote to fall under the common-law right of navigation.

State Supreme Court Justice Richard T. Aulisi ruled in Brown’s favor and threw out the lawsuit in February 2013. The Appellate Division of State Supreme Court upheld Aulisi in a 3-2 decision in January 2015. Because two judges dissented, the landowners had an automatic right to appeal to the Court of Appeals, the state’s highest court.

The oral arguments are scheduled to start at noon Thursday. Brown’s attorney, John Caffry, and the state’s attorney, Brian Ginsberg, will have six minutes each to make their cases. The landowners’ attorney, Dennis Phillips, will have twelve minutes. The seven-judge panel is expected to hand down a decision within six weeks.

The court’s summary of the case can be found here.

Photo of Phil Brown paddling Shingle Shanty Brook by Susan Bibeau.

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34 Responses

  1. Francis says:

    The case is fascinating, but what intrigues me is if the attorneys get any timeouts?! It must be March Madness.

  2. Bruce says:

    You’re right, this case is fascinating. When I first read about it in the Almanack, what struck me was that Pete had to portage across private property, which seems to me to be the crux of the matter as far as the law is concerned. I know of a situation on another New York waterway where a landowner successfully argued that riverboats could not anchor, nor could the occupants get out of the boat to wade fish while going through the property. I would think that portaging across private land might fall under the same category.

    This case could have ramifications for waterways all over the country. There are heated battles being fought in Montana over similar issues.

    • Cindy says:

      New York state law allows for portaging (and other safety measures) around obstacles & hazards when using a waterway for navigation (federal law makes navigable waterways public highways, regulation of which being up to the states). Other reasons for leaving your craft (fishing, wading, calls-of-nature, photo taking) are not guaranteed by law.

      The question in these suits usually boils down to “does it meet the state’s definition of navigable?”. Two courts so far have said yes in this case.

      • Avon says:

        It’s actually the Federal courts’ definition of “navigable” that governs, though within that scope the states have authority to regulate reasonable conditions. (The term “navigable waters” is in the US Constitution’s listing of where the federal government has jurisdiction and what matters are left to the states.) There have been oodles of cases about this, and just as with “interstate commerce,” the “navigable waters” has been interpreted more and more broadly over the decades and centuries. “Commerce” now encompasses racial discrimination in public accommodations (the Supreme Court held in the 1960s that interstate travel is a civil right, so even a local mom-and-pop motel is such commerce), and since the Clean Water Act was held to be constitutional, “navigable” now encompasses even wetlands, since they’re essential to the condition of the rivers they drain into.
        The law may be surprising in its scope and detail, but it all made sense at the time it was decided. And when it no longer does make sense (e.g. Apple’s design patent on a blackout-looking iPhone screen), the Supreme Court may revisit those limits (as it decided yesterday to do for Samsung).

        • George L. says:

          Mr. Avon –

          federal law is not applicable and it is not part of this case

          the case has nothing to do with interstate commerce

          New York caselaw and common-law principles apply

          nothing is going to the US Supreme Court

  3. Todd says:

    I am not sure why it would have ramifications all over the country, maybe the North Country. This is a New York Case it doesn’t set any precedence throughout the Country.

    • Boreas says:

      Different states also have different waterway laws. Sometimes the landowner owns the river bottom, but not the surface. People can float/paddle through, but never anchor or get out. Sometimes it varies even with the state, depending on the deed and mineral rights. It is a complicated mess.

    • Bruce says:


      The reason I said it could have ramifications elsewhere besides New York is that in some respects, freedom of navigation is really a national issue. All natural watercourses even the tiniest of creeks, eventually come under jurisdiction of the Corps of Engineers.

      The term “navigable” should be explicitly defined at the national level, along with defining what constitutes public access, then each state can decide if a given watercourse meets the criteria.

  4. Rick Fenton says:

    If it floats your boat, that’s all she wrote! Good luck Phil.

  5. Ellen Apperson Brown says:

    In 1922, John Apperson and Warwick Carpenter argued that a private club should not be allowed to own the rights to a lake in the middle of the forest preserve, or to prevent campers or fishermen to get access to the state lands. Both men took the stance at great personal risk. In fact, Carpenter was fired from his job as Secretary to the Conservation Commission, and John Apperson also lost his job at General Electric, but was reinstated about six months later. Both men would be applauding Phil’s efforts. Hope he is successful!

  6. Todd says:

    It may be a national issue but my point was just that a ruling by the NY State Supreme Court has no standing outside of NY. I also failed to mention that as someone who has enjoyed Phil’s book 60 Flatwater Adirondack Paddles (at least the 17 that I have completed) as much as I have I wish him all the best

    • Avon says:

      Actually, the high court of NYS is the Court of Appeals, which is where Phil’s case is being heard this week. (Each county in NYS has its own “Supreme Court.”)
      And, in fact, the Court of Appeals is widely respected nationwide, and its opinions – especially to the extent they apply Federal constitutional law, as in “navigable” waterways – are impactful when any other state’s high court tries to decide what the law means, or what the law should be.

      Of course, though, Todd is right that NYS law isn’t binding in a mandatory way on other states’ top courts. And other states will vary as to how wise they deem NYS’s to be.
      Just as, these days the US Supreme Court has been trying to decide how “persuasive” (the legal term for such actual, but non-mandatory, impact) the law of other nations should be when our Supremes are deciding issues of international law, such as terrorism, piracy, enforcement of debts, etc.

      • George L. says:

        the issue before the Court of Appeals has nothing to do with “Federal constitutional law”.

        In fact, it has nothing to do with New York Constitutional law either

        New York case law and common-law principles on the public’s easement (i.e. right to paddle) otherwise privately-owned navigable streams, is the issue

  7. says:

    If I owned the land, you should have no right to use it without my permission. To do otherwise
    would be trespassing.

    • Boreas says:

      But waterways running through private land are another matter. Similar to roadways. Even small waterways used to be very important before roads came in, but the laws pertaining to them have not been properly addressed or updated over the centuries. It boils down to navigation rights.

  8. Ned says:

    I’m curious as to how often the court of appeals overturns lower court rulings. Many times they don’t want to overturn prior decisions without substantial reason. I see a few issues. #1 Will they pander to the landowners group so as not to “set a precedent”? #2 Wil they focus on the fact that theres a ( long) portage available to the paddlers? Seems like they aught to be focused on reviewing if the lower courts did anything legally incorrect, rather than re trying the case

  9. Charlie S says:

    “If it floats your boat…”

    That’s a good one Rick!

  10. Paul says:

    In this particular case it isn’t a bunch of “get off my property” kooks. This is a group that wants to use the land and the water to study Adirondack ecosystems w/o a bunch of paddlers (and perhaps others if this is as open as the common law may render it) in there. There are tons of other places to paddle. But in the end it is a legal question – perhaps almost all waterways, even very small and sensitive ones, in the state that flow on private land are open for trade and travel? God bless America!

    • Boreas says:


      If this is truly the case with a recognized scientific group performing valid research, I would think the landowners would be allowed some sort of temporary river closure rights while the study is in progress. I don’t know if any such legal injunction exists, but perhaps that would be more productive than this lawsuit, which is basically looking at navigation rights.

      • Paul says:

        Check out “Friends of Thayer Lake” for more info. It is true. The land is under a conservation easement. It can’t ever be developed. They didn’t think they needed any sort of injunction. Phil went up the stream past the posters that is what started this. They thought that they could legally post it. They are just trying to clarify what their property rights are under the law. The lawsuit is good for everyone since it will straighten this out.

  11. Charlie S says: says: “If I owned the land, you should have no right to use it without my permission. To do otherwise would be trespassing.”

    This is why the court case mike….to settle the matter at last..hopefully. I’m with Phil on this. I’m certain the court will see that this ‘is’ a navigable stream and that Joe & Mary public have a right to float over it in his or her craft to get from point A public land to Point B public land in the middle of this wilderness,which is a very isolated location.
    And by the way….Phil didn’t use the land,he used the body of water that went through it which should be public especially if it is navigable. If I owned the land I wouldn’t have made such a fuss and it wouldn’t have come this far,especially if no harm has been done. But that’s me mister nice guy.

  12. Charlie S says:

    What is God Paul?

  13. Charlie S says:

    “This is a group that wants to use the land and the water to study Adirondack ecosystems w/o a bunch of paddlers (and perhaps others if this is as open as the common law may render it) in there.”

    I see this issue in a new light with your statement Paul especially if canoes can bring in invasive species and perhaps alter their studies.

  14. Charlie S says:

    I read in this mornings paper that this property where Phil’s canoe went through has been in the Brandreth family since 1851. It still doesn’t seem right that the stream should be cut off from the public especially if there is public land on either side of the property that it cuts through. The owners of this land put up cameras and even a fence to keep canoer’s out or to prosecute them for floating through. This seems a little extreme. Also Phil was deemed a nazi by plaintiff’s lawyer. Extreme maybe?

    I don’t take sides on this issue but it seems to me the stream should be canoeable. It and the land were there way before a human came along and claimed ownership. It’s in the middle of nowhere and it’s not like it has ever been or will become a major thoroughfare.

    • Phil Brown says:

      The claim that they have owned the land since 1851 is misleading. In 1974, Brandeth Park sold the land to International Paper but retained the recreational rights. In 2000, IP sold it to the Nature Conservancy. The conservancy then sold it in 2007 to the Friends of Thayer Lake (a subset of the Brandreth clan). By then, the state had acquired both Lake Lila and the Little Tupper tract, two parcels connected by the disputed waterway. This gave the public access to the disputed waterway on both ends. The deed signed by the Friends of Thayer Lake contains language granting the public the right to travel on the waterway. The Brandreths say this part of the deed is void, but it is nonetheless evidence that the buyers knew of the changed circumstances and of the public’s interest in paddling the waterway when they purchased the property.

  15. Charlie S says:

    The story also says that Phil used a trail on the private property to bypass 500 feet of rapids. I stand corrected when I said Phil didn’t use the land.

  16. Theresa says:

    In Wisconsin, the Northwest Ordinance of 1787, which was embedded into the state’s constitution of 1848, guarantees all citizens access to all the navigable waters of the state. It states that “The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways, and forever free…” It set precedence for the “saw log” test and for anglers to wade a stream that runs through private land. Perhaps NY also adopted the passage into the laws of its land and water. Check out “Champions of the Public Trust” for more history on WI water laws and their possible applicability to the situation in NY.

  17. Theresa says:

    WI laws also allow a paddler or angler to step on to private land in order to portage around obstructions, by the shortest route possible.

  18. Dan Ling says:

    I am hearing the claim of research, and this needs to be taken seriously. Perhaps a UMP should spell out no boat hulls with possible invasive species should use this navigable waterway. But it is navigable in fact and therefore currently navigable under the law. Unless I’m mistaken (I am bedridden atm and can’t check my copy), this is a classic canoe route as described in Wallace’s Descriptive Guide to the Adirondacks (published 1800’s). If so, it was a commonly-used public waterway among the leatherstockings/guides and their patrons before the Brandreths illegally closed and posted it. The Adirondacks is where wilderness guiding got it’s start, where the canoe grew up (Rushton) and is unequaled in terms of diversity and size of the resource. Fergodsake, let’s give this the historic and cultural attention it deserves as well. The comment that there are plenty of places to canoe shows a lack of appreciation for the absence of longer, wilderness canoe routes in the Adirondacks that have motorboat solitude. The reason there is a lack of such routes where the motorboat hasn’t completely dominated as elsewhere is that the classic wilderness routes used by the guides to connect the major waterways together during the 1800s were all illegally closed and posted over 100 years ago. It is time we learned about and took action regarding our important Adirondack canoe heritage.

  19. Dan Ling says:

    Oh, and by the way, the previous court cases, I think, state that it is OK for paddlers to line and carry around obstructions to the extent necessary to proceed around them.

  20. Lily says:

    I have had professional dealings with Dennis Phillips (attorney for the landowners in this case) over 25 years. He’s always struck me as a run-of-the-mill arrogant bully. His outrageous comments in court last week prove he is something much worse.

  21. Lily says:

    More importantly, I hope Phil wins this case – for us all.

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