New 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.