The 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.