Tuesday, May 10, 2016

Court Orders Trial In Adirondack Paddlers’ Rights Dispute

shingle shanty web photoNew York State’s highest court has ruled that it doesn’t have enough evidence to rule on a long-running navigation-rights dispute between the editor of the Adirondack Explorer and a group of property owners.

The decision sends the six-year-old case back to a lower court for trial. It also wipes out, at least for now, a pair of decisions that cleared the way for the public to paddle a waterway that connects two parts of the state-owned William C. Whitney Wilderness.

In a unanimous decision handed down Tuesday morning, the seven-member Court of Appeals found the court record in the case is filled with too much “conflicting or inconclusive evidence” and that a trial on the facts is warranted.

“It means that we go back to square one,” said Dennis Phillips, the attorney for the Friends of Thayer Lake and the Brandreth Park Association, the landowners who sued Explorer Editor Phil Brown.

Both Phillips and Brown’s attorney, John Caffry, were resigned to the decision. “I think it could have been decided on the record that was there, but that’s their call,” Caffry said.

Early on, both sides in the case had filed motions for summary judgment, which is done when the parties agree on the basic facts and disagree only on the law.

The Court of Appeals, however, said the record left unanswered a number of factual questions:

“The record is not conclusive with regard to, for instance, the Waterway’s historical and prospective commercial utility, the Waterway’s historical accessibility to the public, the relative ease of passage by canoe, the volume of historical travel, and the volume of prospective commercial and recreational use.”

Phillips said he understood the high court’s decision. “They may have felt that they were being put into the position of a fact finder instead of a law finder,” Phillips said.

Caffry said it probably will be at least a year before a trial is held.

The legal saga began in 2009 after Brown took a canoe trip from Little Tupper Lake to Lake Lila. Along the way, he paddled a two-mile waterway that cuts through property owned by the Friends of Thayer Lake and the Brandreth Park Association.

By paddling that stretch, which includes Mud Pond, the Mud Pond outlet, and part of Shingle Shanty Brook, Brown avoided a 0.8-mile portage connecting two portions of the state-owned William C. Whitney Wilderness.

But it also resulted in a lawsuit filed in 2010. For years, the landowners had posted the waterway and hung a chain across Shingle Shanty Brook to discourage paddlers.

Brown contended that the common-law right of navigation afforded access to him and the public. The state Department of Environmental Conservation sided with Brown and joined the case.

In February 2013, State Supreme Court Justice Richard T. Aulisi dismissed the lawsuit. After the landowners appealed, the Appellate Division of State Supreme Court also ruled in Brown’s favor in a 3-2 decision. The landowners then appealed to the Court of Appeals, which heard arguments on March 24.

The decisions by the lower courts leaned heavily on an earlier case in which the Adirondack League Club sued a group of paddlers who went through its property on the South Branch of the Moose River. In that case, the Court of Appeals found that the appropriate standard is “practical utility for travel or transport.”

In the Moose River case, as in the current case, the Court of Appeals ruled that there were unresolved factual questions and sent it back for trial. Ultimately, the Moose River case never made it that far: a settlement granted paddlers the right to use the river during certain times of the year when water levels permitted travel.

Caffry, who also represented paddlers in the Moose River case, said a settlement is an option in Brown’s case as well. “We would be glad to talk to them,” he said. “The possibility of some out-of-court resolution is always there.”

Before the landowners sued Brown, DEC suggested a trial period in which paddlers would have the right to use the route. The property owners rejected that suggestion, though.

Phillips maintained throughout the case that waterways need to exhibit some capacity for commercial traffic to be “navigable-in-fact,” the legal term for inland waterways open to the public.

By the time Brown’s case made it to the Court of Appeals, it had won attention from several outside parties. The Adirondack Mountain Club and Environmental Advocates filed a brief with the Court of Appeals backing Brown’s position. The Adirondack Landowners Association, New York Farm Bureau, Empire State Forest Products Association, Property Rights Foundation of America, and Pacific Legal Foundation sided with the plaintiffs.

Adirondack Explorer photo: Phil Brown paddles the disputed waterway in 2009.


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54 Responses

  1. Paul says:

    I guess it makes sense when you base one case substantially on another case that had the same problems. I think the defendants have been lucky to have gotten as far as they did given the circumstances.

    This is all about defining what waterways are open for commercial use. I am surprised that a group like the Adirondack Mountain Club or groups of that ilk would support something like this? If a canoe is commercial travel than these waterways (very fragile ones included) are open for other commercial travel. Probably not the best way to go as far as environmental protection.

    • Cranberry Bill says:

      I am going to quote a Wikipedia article here. I found the same stuff in Compton’s Encyclopedia, but far more wordy. “In the United States, both state and federal appellate courts are usually restricted to examining whether the lower court made the correct legal determinations, rather than hearing direct evidence and determining what the facts of the case were.”

      Reading the same article, I learned that New York’s court system differs from the other 49 states in that the “New York Supreme Court” actually applies to the regular trial courts, while the “New York Court of Appeals is the highest appellate court. The court of appeals cannot issue a decision just to “get this over with”, because whatever is decided is going affect similar cases for many years, possibly centuries. So if it is going to take 10 or 20 years to get it right, then that is what it will take.

      It would be nice if a legal professional not associated with the case could step in here and tell us amateurs how the system really works. If this has been posted before, a link would be great. Thankyou.

      • Frank W. says:

        First, summary judgment can only be granted if there is no triable issue of material fact. For instance, if all the parties in a motor vehicle collision case agree that the defendant ran a red light, there’s no material question fact and, as a matter of law, the defendant is liable for the collision damage. There might be numerous other questions of fact, e.g., whether the defendant was wearing a hat, but such questions are not material, i.e., not relevant to the determination. Second, the function of an appellate court is to review the findings and conclusions reached by the lower court. Although the Appellate Division of Supreme Court, the mid-level appeals court in NYS, has the same fact-finding powers as the Supreme Court, the trial level court in NYS, it rarely uses that power because it would not then be sitting in review of the lower court. The Court of Appeals, the highest court in NYS, has no fact-finding power at all. At any rate, the main question at every level of this case was whether there was a triable issue of material fact. Here, everyone — Phil, DEC, and especially Mr. Potter on the part of the plaintiffs — agreed that the Mud Pond Waterway is capable of being used for canoe travel for a sufficient portion of the year and has in fact been used for this purpose for many years. That fact, undisputed on the record, is dispositive on the issue of navigability-in-fact. The unresolved questions of fact alluded to by the Court of Appeals are simply not material because they don’t change the fact that the waterway is suitable for canoe travel. That should have been the end of the story, but the Court of Appeals essentially punted back to the trial court for a trail on who-knows-what. This might be attributable to the fact that most of the judges on the Court are relatively new, let alone brand new, to that Court. I’d wager that the decision would have been quite different if it had reached that Court three years ago. Call me cynical, but the Court probably did this in the hope that the parties will settle rather than go to trial.

        • Boreas says:

          Frank W,
          Thanks for the clarification!

        • Cranberry Bill says:

          I was hoping for a response that I could not understand, and now everything is perfectly clear. Seriously, thank you Frank W. You are either a first year law student or an appellate court judge.

  2. Marco says:

    They should have simply decided. Doing nothing (by sending it back to to the lower courts) only prolongs things. I have made that trip (up Sihingle Shanty brook from Lila to salmon(name?) pond, etc.) No reason to say nay to paddlers. Rather a nice trip actually.

  3. Justin Farrell says:

    What was the original AE article headline…?
    “Testing the Legal Waters” was a nice choice I think!

  4. Lauren pereau says:

    I own a lot of land. I have never pretended or even tried to keep people off from it. It is the difference between the locals perspective or the landowner from the city. “I’m moving up north and asserting my ownership by blocking roads and putting up fences” Kind of a White man and Native American story. Or,,Gandalf and the Balrog…”You…Shall not Pass!”

  5. ADKerDon says:

    These are privately owned lands. A portage around them exists. This is nothing but illegal trespass on private property. How many invasive species are you canoeists transporting from one pond to the other? Where is your drying out phase one from one pond to the other?

    • Keith says:

      The waters in question are connected so the invasive argument doesn’t come into play there.

      The portage from Lilypad goes to Shingle Shanty Brook. Lilypad Pond drains into Mud Pond and into Mud Pond outlet and then into Shingle Shanty.

      • Ethan says:

        Disagree 100%. those waters may be connected. But how do you know the canoe was properly cleaned when it was taken out of, say, Lake George? Or that the canoer cleaned off their boots? etc.

        • Boreas says:

          That isn’t how I read this: “How many invasive species are you canoeists transporting from one pond to the other?” I assumed he meant the ponds within in theat watershed. Otherwise it is just a question not related to the legal issue here.

          It has no bearing in this case unless you are planning on excluding waders and paddlers from the entire watershed. If the canoe is in the water at either side of their property, any invasives will affect them whether they are portaged or not. Invasives are just a red-herring.

          • Paul says:

            The court certainly does not care at all about the “invasive” question. It boils down to commercial utility. Nothing more nothing less. The defendants want to prove that the waterway is open for commercial use in this case recreational paddling (or any other permitted commercial use). The case also has nothing to to about wilderness preservation with the exception of the owners wanting to prevent access so the land can remain undisturbed. This parcel is supposed to be used to study Adirondack ecosystems that are basically undisturbed by public recreation. That is what Friends of Thayer Lake was established for. Aren’t some of the principals ex-APA people? A story on that part of the ownership and their plans for the land would be interesting for people to hear.

    • Ned says:

      They weren’t on the property. They were on the water, the water is a moving object that nobody owns

      • Ethan says:

        They portaged on the property

        • Phil Brown says:

          Portaging is legal if the waterway is navigable-in-fact.

          • Ethan says:

            Which this one, to me, is clearly not. Hopefully the courts will see more sense the second time around.

            The environmental risk of what you did is horrendous. Enabling invasive species spread into otherwise pristine waterways. It’s not like the Park lacks thousands of miles of public canoeing.

            • Phil Brown says:

              Canoes rarely harbor invasive species–especially if they’ve been riding on top of a car going 55 miles an hour en route to the trailhead. Aquatic invasives are spread largely by motorboats.

              In any case, as Boreas pointed out, the waterway on one end is connected to Lake Lila via Shingle Shanty Brook and on the other end to Lilypad Pond. These waters are owned by the state and open to paddlers. If invasives were introduced to these waters, the waterway in dispute would not be protected.

              • Ethan says:

                If an adjacent connected body of water is invaded, you can take steps; put up a dam for instance to stop fish migrating upstream.

                So it’s an invalid argument to say that because a body of water is connected it’s hopeless to prevent the spread of invasives.

                By that logic, there’s no point doing anything; all water in the Park drains eventually into either the Hudson or St Lawrence. so an invasive species could in theory spread downstream to those rivers and then upstream to source waters. So why bother?

                And waders, boots, fishing tackle, ropes, etc. all carry invasives. And I’m sorry but show me one environmental group that says that “we don’t have to worry about canoers carrying invasives from one pond to the next because cars travel fast.” When the alleged trespassers portaged they also ran the risk of depositing terrestrial invasives on the land as well — unless they cleaned their boots off with bleach before beginning the trip in which case mea culpa.

                • JKShulenburg says:

                  Ask the great lakes how thats going. They put up a dam and electrified a stretch of canal at the heads of the mississippi to stop the asian carp invasion and the DNA of that fish has now been found in several of the lakes. Dams are a temporary fix when sea birds can easily carry these fish over. They catch potential prey which wiggles out of their grip on the other side and bam.

                • Boreas says:


                  Most of us here understand that invasives are bad. But whether a paddler portages around the property or paddles through it, if there are invasives on the craft, they will be introduced to waters on either side. They will simply migrate through all of the watershed.

                  You are arguing a great point about keeping invasives out, but it is off-topic to this legal discussion.

    • Boreas says:

      “How many invasive species are you canoeists transporting from one pond to the other? Where is your drying out phase one from one pond to the other?”

      They don’t need anything to transport them – the organisms cans transmit themselves as it is an open waterway. Conceivably, the portage could introduce more organisms than the paddle.

  6. Tim-Brunswick says:

    Again, ADKerDon and I are on the same page. Mr. Brown deliberately provoked this and look how much $$ it has cost the taxpayers of this State with Court costs, etc, etc. The landowners are paying taxes on these properties and darn well should be able to prohibit trespass by others.

    Without question, canoeing/paddlers do NOT constitute commercial travel, but just like with every other “issue” in the Adirondacks Phil Brown will endlessly keep going back to Court to try and get his own way. If I was the landowner in question any trees near the waterway on my land would be cut down and if it blocked the waterway until I could cut it up for firewood…..oh well!

    Thank you

    • Boreas says:

      The landowners rights lie in their deed and in local/state/federal statutes. The way I understand it, their deed recognizes the waterway rights of others yet they are blocking the use of the waterway. It needs to get sorted out somehow. Mr. Brown certainly isn’t the only person who has ‘trespassed’ on these waters.

    • JAM says:

      The “Friends of Thayer Lake” are the people forcing the state to spend money and resources to resolve this issue. They brought the lawsuit; they lost. They brought the appeal; they lost. Where they go from here is up to them. Also, deliberately obstructing the waterway is illegal.

      • Ethan says:

        That’s disingenuous. The plaintiffs bought the suit in response to the (alleged) trespass; had that not occurred, the suit would never have been brought.

        And how are they wasting the state’s money? They’re suing the Explorer.

        • Boreas says:

          I feel the suit was inevitable. But in retrospect, the state should have exhausted legal remedies before bothering with building the portage. But since the portage was a quick and easy fix, they did it to keep recreationists happy. Literally, a legal work-around.

        • Paul says:

          The state has joined suit in the case (they are a party). They have to pay their lawyers to try it.

          • Frank W. says:

            The Attorney General’s job is to represent the State and to protect or further its citizens’ interests. The AG’s lawyers are paid a salary and do not receive even one cent more or charge an additional fee for handling any particular case on behalf of a state agency. Here, the State and DEC, represented by the AG, intervened (they were not sued) to protect and defend the public’s navigation rights. It’s not costing the taxpayers anything for the AG to simply do the AG’s job in litigation that was commenced by the plaintiffs.

    • JKShulenburg says:

      Property rights, historically, only extend to the high water mark of the property unless the waterway or body in question lies ENTIRELY in their property. Owners on lake Ontaio own to the high water mark on their beaches (because tides are minimal they essentially own the whole beach). Hotels on the ocean only own to the average high tide with the rest being, legally, public land. By following this prescedent, their property line stops at the creek bank and picks up on the opposite side. They have every right to kick picnickers and fisherman off the property, but the argument is that the creek was never their property to begin with

  7. Dan Ling says:

    The commercial and historic precedent is the original wilderness guide – the Adirondack Guide – who made his living plying those waters, and the evidence exists in Wallace’s Descriptive Guide, which I referenced right here in Phil’s article last month. This route was known and used historically by guides, because it was a key link between major “commercial” watersheds / routes.

    That said, in my opinion the commercial aspect is a red herring, and time will prove that point. Our paddling heritage – the canoe, the guideboat – have all but been forgotten: replaced by the kayak. It is time we revisited these craft and their place in Adirondack, and world, history. This “issue” is a critical aspect of our heritage. We must never forget it.

  8. Pete Nelson says:

    And there you have it kids! Two of the folks who constantly carp about access access access and how selfish Wilderness protection is, have weighed in on this issue in comments above, and predictably they come out against access and for blocking streams with cables and logs and so forth. How incredibly surprised I am! Meanwhile Lost Brook Tract, a gem worth seeing for those who can find it, is not posted.

    Thus we see the difference between the supposed position favoring “access” and the actual position which might be best described as “I want mine.” As I’ve pointed out before, cries of elitism and selfishness directed at Wilderness advocates are exactly backwards.

    • Boreas says:


      I think you hit the nail on the head!

    • Paul says:

      If it is determined not to be a public ROW then it is private. There is nothing wrong with having the view that private land should be off limits to the public. It is fine if you want to leave it un-posted as well. Technically you are trespassing on private land w/o the owners permission even if un-posted. If it has a fence or a clear property marker (like a well cut line on your property) you can still be arrested for trespass. For example you an have someone arrested for trespass on your front lawn w/o your permission to be there.

      BTW some of the most well preserved lands are private lands. One that comets to mind that existed till now is one Boreas Ponds. It is described as a gem.

      • Paul says:

        Sorry comes to mind not comets. Another example is the land owned by the Friends of Thayer Lake and Brandeth Park.

        • Phil Brown says:

          International Paper owned this land from 1974 to 2000, when the company sold it to the Nature Conservancy. Friends of Thayer Lake has owned it only since 2007.

          • Paul says:

            Thanks for the history of ownership. The land must now also be under a conservation easement protected from development if the TNC owned it.

  9. Cranberry Bill says:

    I cannot believe Phil Brown is actually dragging a line behind his canoe as he paddles the disputed waterway in 2009.

  10. Bushwhack Jack says:

    Americans have a unique view of “private land” that is not shared with much of the rest of the world. This recent article in the NY Times describes this archaic view. http://www.nytimes.com/2016/04/24/opinion/sunday/this-is-our-country-lets-walk-it.html?_r=3

    • Todd Eastman says:

      Thanks for the link.

      Perhaps the horrendous treatment of the public lands by a small percentage of users gives private property owners an example of a worse-case-scenario.

      I fully support open access but wonder if America is respectful enough of property, private or public, to not ruin the resource.

      • Boreas says:

        It varies from generation to generation. Some are exploiters, some are conservationists.

    • Paul says:

      The particular law in question here actually comes to us from English common law.

      • Todd Eastman says:

        … with a few twists and turns along the way.

        The converting of Scotland’s Highlands to estates by booting out the crofters seemed to not meet the open land heritage. Earlier closings of estates in England proper to hunting also seemed to play fast and loose with Common Law.

        Perhaps the real legacy of Common Law is its flexibility for those with enough money!

      • Todd Eastman says:

        … and to add that Riparian Rights as I recall, come to Common Law from Roman Law…

  11. Charlie S says:

    Tim-Brunswick says: “If I was the landowner in question any trees near the waterway on my land would be cut down and if it blocked the waterway until I could cut it up for firewood.”

    I’d rather hug a tree than cut one down. If you wanna know the depth of a person’s soul,whether it’s shallow or deep you’ll know by his or her actions or words.

  12. Charlie says:

    This is the Court of Appeals? If they can’t decide then the whole process has failed. If the boat floats and you can get from one legal access to another it’s a waterway. This is a cowardly out for the State’s highest court.

    • Paul says:

      It doesn’t seem cowardly to rule that there are not sufficient facts to render a good decision. They are saying don’t just let us decide when we don’t have sufficient facts. They are being careful and fair just what anyone seeking justice should want.

  13. Paul says:

    Floating those little toy boats is a recreational activity and could be defined (as here with recreational paddling) as a commercial activity. Does that mean that any little puddle or rivulet is Navigable-in-fact? And I guess it is okay to carry my little boat from puddle to puddle if necessary since portage is allowed as well.

    • Dan Ling says:

      The answer to your question is: no, and your hypothetical statement is also not correct on private land – it is not allowed under law. You can read up on this right here in the Almanack.

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