Friday, July 27, 2018

Shingle Shanty Paddling Case Headed To Trial

Phil Brown canoes Shingle Shanty Brook in 2009 Eight years after landowners sued him, outgoing Adirondack Explorer Editor Phil Brown will stand trial in August in a case that could clarify paddlers’ rights in the Adirondacks and perhaps the state.

Brown was sued for trespass in 2010 after canoeing through land owned by the Brandreth Park Association and the affiliated Friends of Thayer Lake. The disputed waterway — Mud Pond, Mud Pond Outlet, and a part of Shingle Shanty Brook — connects two pieces of the state-owned William C. Whitney Wilderness.

Brown, who wrote about the trip for the Explorer in 2009, had been scheduled to stand trial in July, but the trial was postponed to August 20. It will be held in New York State Supreme Court in Johnstown and is expected to last into September.

New York State has joined the lawsuit in defense of the public right of navigation on the waterway.

State Supreme Court Justice Richard Aulisi, the presiding judge, dismissed the lawsuit in in 2013. The state Appellate Division upheld that decision, but the Court of Appeals, the state’s highest tribunal, ruled in 2016 that a trial needed to be held.

Click here to read the full story on the Explorer website.

Adirondack Explorer is the publisher of Adirondack Almanack.

Photo of Phil Brown canoeing Shingle Shanty Brook in 2009 (photo by Susan Bibeau).

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21 Responses

  1. Chris says:

    New York State has joined the lawsuit in defense of public right of navigation on the waterway.

  2. Brent says:

    Whose got the popcorn!?

  3. Paul says:

    Should be interesting.

    Ye Olde common law! Looks like it could apply to just about anything.

  4. Paul says:

    Of course. This has very important economic implications. Any hindrance to open navigation does. This law is and was all about the $.

  5. James Marco says:

    The creek is navigable and was used in the past as part of the fur trade. It needs to be open today.

  6. Tim-Brunswick says:

    If everybody has a right to use someone’s property (i.e. “navigate”) then the property owner’s taxes should be reduced in direct proportion to the acreage that is being used by others. Hopefully the Brandreth Park Association pursues that should the final decision go against them.

    • Boreas says:

      This seems logical on the surface, but what about properties with waterfront on lakes and oceans? If anything, it would appear public usage on private waterfront has historically resulted in very high tax rates. Perhaps filing this suit will result in more negative repercussions to the landowner than was originally envisioned. It is certainly an interesting case and will result in some profound changes or clarification to existing navigation and tax laws.

    • James Marco says:

      Well, I see it as a question of how the Brandreth Parp Association will pay for all the damages caused by illegally blocking the stream, if they loose.

      • Paul says:

        Damages caused by protecting the resource by limiting human use?

        • James Marco says:

          Limiting a natural resource to those who can pay for it (ie “own a share in Brandreth Park) does NOT constitute conservation. By this reasoning, it is possible for a lumber company to “protect” a stand of lumber by clear cutting sections of it to remove growth providing fuel for fires in 50 yard swathes. Not really logical (and without management input from the EPA/DEC, illegal.)

          Any paddler passing through private land on a waterway or portage knows not to camp there. There are always those that ignore the rules and signs. These do not constitute the vast majority of paddlers. Especially in a wild area, such right of ways need to be protected, and were historically, by the users of the right of way. Not by posting signs across the right of way. There are many instances of this in history and in other areas both in NY and other states.

          In the future, water will become one of the most important resources we have. It does not belong to Brandreth. It’s protection must be mandated by a government and the people making up that government…like a roadway, for the common good of all over the loss of a single person or entity…I think they call this eminent domain.

          • Paul says:

            Certainly you don’t think that all land and water should only be public?

            The beautiful parcel that NYS now owns that was held by the Fynch Pruyn timber company for 150 years that is now the source of such debate was not conserved? Many private parcels have conservation easements (like I believe parts of the Brandeth park) that do not allow any development that isn’t conservation? Is your measure if the public can use and in some cases abuse it.

            • James Marco says:

              Certainly not. Private land is private land. If you own the headwaters of a pond and the entirety of surrounding land of the outlet stream, then it is certainly private property. Even though I remember trapping, swimming and passing through such lands freely as a kid. And, of course, we never camped there though there were some nice spots.

              We were discussing Shingle Shanty Brook, not the Fynch-Pruyn Timber Co. They were/are a logging company. Past performance of Brandreth is no guarantee of future performance. And we were not talking about conservation efforts. We were talking about a right of way between two wilderness sections of state land. While I am a conservationist in many ways, we were not talking about conservation efforts.

              In every test of a waterways use, as a natural highway, Shingle Shanty passes. I will not say I have been through there, but I would defy anyone to trace anything except footsteps to me. (I took the trail.) I do NOT agree totally with Mr. Brown. He provoked the incident in what I think was an illegal manner. But, paddling through (yes a portage around the rapids/dam does not count) would leave no trace of his passage, either. While they can certainly post the land preventing high water landings, they cannot stop the water from other state sources. It derives some of its water from a public source all the way up to the Salmon Lake Outlet. Clearly this tells me that the entire stream is public upstream to the point where public water enters it (Salmon Lake Outlet/Shingle Shanty Brook confluence… maybe more, but I am not really making that call.) It IS passible for commercial purposes by canoe/kayak and has been used that way.

  7. Paul says:

    I find this “protest” that the “paddlers” have planned for Weller pond interesting. I’m not sure I have ever seen motor boaters protesting the use of waterways by paddlers and asking for “paddle free” waterways?

    • Boreas says:

      What would be their reason? Boaters are rarely swamped by paddlers and their engine noise and smell wouldn’t likely be overpowered by the din of splashing paddles.

      • Paul says:

        Yes, there appears to be no reason. One side of the issue seems content on sharing the water. The other seems to feel they need to ban the other. Paddlers and motor boaters have been getting along well on Weller pond for decades. Even better, I know someone who saved several paddlers that were swamped by the weather on Middle Saranac a few years ago. He had to use his noisy smelly pontoon boat (actually it has a 4 stoke that is very low emissions and quite quiet like most engines these days).

    • Hope says:

      There is also a counter protest planned with motor boats as well. Might be interesting. Talk about over use. Stop pitting paddlers against motor boaters. It’s a no win situation. Wellner Pond is navigable by motor boats from Middle Saranac without getting out of your boat whether it has a motor or not. It is NYS waters. If it had a carry to cross it would be different.

  8. Paul says:

    ” It’s protection must be mandated by a government and the people making up that government…like a roadway, for the common good of all over the loss of a single person or entity…I think they call this eminent domain.”

    Okay I can buy this. I certainly agree that this with a ruling against the landowner could constitute a taking. If it is eminent domain – by law it requires compensation. What do you suggest the owners receive as compensation?

    ED – “the right of a government or its agent to expropriate private property for public use, with payment of compensation.”

    • James Marco says:

      Yes, I agree with John. But, I bet they can finagle a bit out of the DEC. Whatever the current going rate for acreage is.

  9. john says:

    My interpretation is that if the stream is found to be navigable, then it was always a public thoroughfare, but because the surrounding land was private, there was no legal way to access the stream. So, from this viewpoint, the government is taking nothing and the landowners were fortunate that in the past, the public could not get to the stream.

    • Paul says:

      Yes, it needs to be legally determined if the stream is “navigable in fact” – not just navigable. More about commerce and trade and transportation than just navigability. If a small stream like this is determined to be NIF it could have profound implications on what these small streams could be used for. This could be a good example of “be careful of what you ask for”.

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