Coverage of the Shingle Shanty case

Phil Brown paddles on a disputed stretch of Shingle Shanty Brook. Photo by Susan Bibeau.

After State Supreme Court Justice Richard Aulisi handed down his decision on navigation rights a few weeks ago, several media outlets wrote about the case.

As the defendant in the lawsuit, I tracked the news coverage closely. Given the public interest in the case, I thought I’d share the articles that I found.

The news about Aulisi’s decision was first reported by the Associated Press and the Adirondack Almanack (which is owned by the Explorer). The AP must have put the story on its national wire, since the first link is to a version that appeared on the Washington Post website.

Associated Press

Adirondack Almanack

Two daily newspapers that cover the Adirondack Park, the Glens Falls Post-Star and the Adirondack Daily Enterprise, published their own versions of the story.

 Glens Falls Post-Star

Adirondack Daily Enterprise

The Daily Gazette, based in Schenectady, also produced a local version of the story. Incidentally, the Gazette’s writer was the only newspaper reporter who attended the oral arguments back in November.

The Daily Gazette

Brian Mann of North Country Public Radio interviewed me and aired a story a few days after the ruling. He included parts of a story on the issue of navigation rights that ran earlier on NCPR.

North Country Public Radio

The Albany Times Union wrote an editorial praising the decision.

Albany Times Union

The New York League of Conservation Voters also praised the decision.

NLCV article

Will Doolittle, a columnist for the Glens Falls Post-Star, wrote a piece criticizing environmental activists who cheered the ruling, accusing them of hypocrisy.

Will Doolittle column

Peter Bauer, the executive director of Protect the Adirondacks, wrote a long piece responding to Doolittle’s column, accusing him of getting his facts wrong.

Peter Bauer’s response to Doolittle

Canoe & Kayak Magazine had written about the case before and followed up with an article on its website.

Canoe & Kayak Magazine

Outside Magazine published a short item on its website, with links to longer stories.

Outside Magazine

If you’d like to read the decision yourself, click the link below (PDF file).

Justice Aulisi’s decision

AG defends right to paddle

NOTE: THIS IS ANOTHER POST FROM OUR PUBLISHER, TOM WOODMAN.

The attorney general issued a news release pertaining to the motion to intervene in the Shingle Shanty case. See our earlier post to download the legal documents.

ATTORNEY GENERAL SCHNEIDERMAN SUES TO PROTECT PUBLIC’S RIGHT TO TRAVEL ON ADIRONDACK WATERWAY

State Seeks to Stop Property Owners from Using Intimidation Tactics Preventing People from Navigating Waterway

Property Owners Used Steel Cables Across the Stream & Set Up Cameras to Intimidate Paddlers

ALBANY - Attorney General Eric T. Schneiderman today announced that the state has filed papers in Hamilton County Supreme Court to join in a lawsuit in order to defend the public’s right to travel on navigable waters in the Adirondack Park. 

 Schneiderman is seeking an order requiring the Hamilton County property owners, known as the “Friends of Thayer Lake, LLC” and the “Brandreth Park Association” to remove the intimidating signs, cameras and steel cables that they have placed across the Adirondack waterways that flow between Lilypad Pond and Shingle Shanty Brook in an effort to prevent kayakers, canoeists, and other boaters from traveling through their property.

 ”The public has a right to travel and enjoy this beautiful waterway without being stopped or harassed,” said Attorney General Schneiderman. “I will not hesitate to defend the public’s right to travel on these or other navigable waters.  My office will work closely with the Department of Environmental Conservation (DEC) to ensure that the public can once again enjoy this waterway – which connects two state-owned wilderness areas in the Adirondack Park.”

 In his filing with the court, the Attorney General states that DEC has concluded that the waterway is navigable-in-fact and that the attempts by the Friends of Thayer Lake to deny public travel along this state waterway are illegal and constitute a public nuisance.  Under the law, a navigable waterway may be used as a public highway for travel, regardless of whether it flows over publicly or privately owned land.    

 ”For too long, paddlers have been hindered by unlawful navigation rules along Shingle Shanty Brook, compromising both the enjoyment and safety of one of the Adirondack’s most appealing wilderness destinations,” said Charles C. Morrison, Project Director for the Adirondack Committee of the Sierra Club Atlantic Chapter. “We applaud Attorney General Schneiderman’s commitment to defending the public right of navigation by removing these unlawful travel blockades to New York’s waterways.”

 ”New York’s lakes, rivers and streams are integral parts of our natural heritage. To the greatest extent possible, they should be open and accessible to everyone,” said Marcia Bystryn, president of the New York League of Conservation Voters. “We applaud Attorney General Eric Schneiderman for intervening in this important case, and we look forward to having legal clarification that affirms the public’s right to travel – without blockage or harassment – on navigable waters that are held in the public trust throughout the state.”

 The lawsuit in which Schneiderman has moved to intervene, Friends of Thayer Lake, LLC. v. Brown, was brought in Hamilton County Supreme Court after Phil Brown paddled the route between Little Tupper Lake  and Lake Lila, both located in the state-owned “William C. Whitney Wilderness Area,” in May 2009. 

 Brown traveled along lakes, streams and ponds on State land as well as across a corner of the property owned by the Friends of Thayer Lake and in which Brandreth Park Association has an interest.  In November 2010, the Friends of Thayer Lake filed a complaint against Brown for trespassing in state Supreme Court (Hamilton County). In February 2011, the Friends of Thayer Lake amended their complaint by requesting that the court make a determination on their assertion that they own the sole recreational rights to the waters that traverse their property. 

 The case was referred to the Attorney General by the New York State DEC, and staff from both offices worked cooperatively to file the motion to intervene and counterclaim on behalf of the people of the State.

 The Attorney General’s office has a long history of defending the public’s right to navigate in state waters.  In 1991, then Attorney General Robert Abrams intervened to defend the public right of navigation in the case The Adirondack League Club Inc. v. Sierra Club.  Three successive Attorneys General oversaw that case to its conclusion in 1998 when the Court of Appeals issued its landmark ruling that recreational use of a waterway, and not just prior commercial use, could be considered in determining whether a waterway is navigable and thus open to public travel.  

 The case is being handled by Assistant Attorney General Kevin P. Donovan of the Environmental Protection Bureau under the supervision of Lisa M. Burianek, Deputy Bureau Chief of the Environmental Protection Bureau. Also assisting in the case, Kenneth Hamm, Associate Attorney, DEC Office of General Counsel.

AG intervenes in paddling lawsuit

NOTE: THE FOLLOWING NOTICE WAS POSTED BY TOM WOODMAN, OUR PUBLISHER.

New York State Attorney General Eric Schneiderman has moved on behalf of the State of New York and the New York State Department of Environmental Conservation to intervene in the navigation-rights lawsuit filed against our editor, Phil Brown, by the Friends of Thayer Lake and the Brandreth Park Association. Schneiderman is defending the position of DEC that the waterways in dispute are open to the public for paddling. The state’s motion also discloses its intent to make counterclaims against the plaintiffs, including a claim that they have created a public nuisance by hindering the public’s right of navigation.

Click the links below for PDF files of the attorney general’s motion and answer to the lawsuit.

NYS Motion

NYS Answer

Click here to find articles for more background on the controversy.

Following is the text of a news release issued by the attorney general later in the day:

ATTORNEY GENERAL SCHNEIDERMAN SUES TO PROTECT PUBLIC’S RIGHT TO TRAVEL ON ADIRONDACK WATERWAY

State Seeks to Stop Property Owners from Using Intimidation Tactics Preventing People from Navigating Waterway

Property Owners Used Steel Cables Across the Stream & Set Up Cameras to Intimidate Paddlers

ALBANY - Attorney General Eric T. Schneiderman today announced that the state has filed papers in Hamilton County Supreme Court to join in a lawsuit in order to defend the public’s right to travel on navigable waters in the Adirondack Park. 

Schneiderman is seeking an order requiring the Hamilton County property owners, known as the “Friends of Thayer Lake, LLC” and the “Brandreth Park Association” to remove the intimidating signs, cameras and steel cables that they have placed across the Adirondack waterways that flow between Lilypad Pond and Shingle Shanty Brook in an effort to prevent kayakers, canoeists, and other boaters from traveling through their property.

 ”The public has a right to travel and enjoy this beautiful waterway without being stopped or harassed,” said Attorney General Schneiderman. “I will not hesitate to defend the public’s right to travel on these or other navigable waters.  My office will work closely with the Department of Environmental Conservation (DEC) to ensure that the public can once again enjoy this waterway – which connects two state-owned wilderness areas in the Adirondack Park.”

 In his filing with the court, the Attorney General states that DEC has concluded that the waterway is navigable-in-fact and that the attempts by the Friends of Thayer Lake to deny public travel along this state waterway are illegal and constitute a public nuisance.  Under the law, a navigable waterway may be used as a public highway for travel, regardless of whether it flows over publicly or privately owned land.    

 ”For too long, paddlers have been hindered by unlawful navigation rules along Shingle Shanty Brook, compromising both the enjoyment and safety of one of the Adirondack’s most appealing wilderness destinations,” said Charles C. Morrison, Project Director for the Adirondack Committee of the Sierra Club Atlantic Chapter. “We applaud Attorney General Schneiderman’s commitment to defending the public right of navigation by removing these unlawful travel blockades to New York’s waterways.”

 ”New York’s lakes, rivers and streams are integral parts of our natural heritage. To the greatest extent possible, they should be open and accessible to everyone,” said Marcia Bystryn, president of the New York League of Conservation Voters. “We applaud Attorney General Eric Schneiderman for intervening in this important case, and we look forward to having legal clarification that affirms the public’s right to travel – without blockage or harassment – on navigable waters that are held in the public trust throughout the state.”

 The lawsuit in which Schneiderman has moved to intervene, Friends of Thayer Lake, LLC. v. Brown, was brought in Hamilton County Supreme Court after Phil Brown paddled the route between Little Tupper Lake  and Lake Lila, both located in the state-owned “William C. Whitney Wilderness Area,” in May 2009. 

 Brown traveled along lakes, streams and ponds on State land as well as across a corner of the property owned by the Friends of Thayer Lake and in which Brandreth Park Association has an interest.  In November 2010, the Friends of Thayer Lake filed a complaint against Brown for trespassing in state Supreme Court (Hamilton County). In February 2011, the Friends of Thayer Lake amended their complaint by requesting that the court make a determination on their assertion that they own the sole recreational rights to the waters that traverse their property. 

 The case was referred to the Attorney General by the New York State DEC, and staff from both offices worked cooperatively to file the motion to intervene and counterclaim on behalf of the people of the State.

 The Attorney General’s office has a long history of defending the public’s right to navigate in state waters.  In 1991, then Attorney General Robert Abrams intervened to defend the public right of navigation in the case The Adirondack League Club Inc. v. Sierra Club.  Three successive Attorneys General oversaw that case to its conclusion in 1998 when the Court of Appeals issued its landmark ruling that recreational use of a waterway, and not just prior commercial use, could be considered in determining whether a waterway is navigable and thus open to public travel.  

 The case is being handled by Assistant Attorney General Kevin P. Donovan of the Environmental Protection Bureau under the supervision of Lisa M. Burianek, Deputy Bureau Chief of the Environmental Protection Bureau. Also assisting in the case, Kenneth Hamm, Associate Attorney, DEC Office of General Counsel.

Editorial on Shingle Shanty

The Times Union ran an editorial this morning on the navigation-rights lawsuit filed against me by the Brandreth Park Association and the Friends of Thayer Lake.

“Is it, and should it be, against the law to paddle through what’s posted as private property?” the editorial asks. “Or should centuries-old common law prevail, and with it the notion that waterways are just like highways?”

The editorial points out that the state Department of Environmental Conservation agrees with us that the waterways in dispute—Mud Pond, Mud Pond Outlet, and a private stretch of Shingle Shanty Brook—are open to the public under the common-law right of navigation.

It also suggests that the state attorney general should heed DEC’s request to intervene in the lawsuit.

Click here to read the editorial in its entirety.

The Adirondack Explorer will be running an update on the lawsuit in its March/April issue. Since our last issue, there have been two developments:

First, we filed our answer to the lawsuit. Among other things, we argue that recreational use is sufficient to establish that a waterway should be open to the public (assuming it can be legally accessed). Our opponents contend that a waterway must have a history of commercial use, which we see as an overly narrow reading of the court cases.

Second, the Explorer started a legal defense fund. As a small nonprofit publication, we will have a hard time paying the legal bills, but we must stand up for the right of paddlers to travel on the state’s navigable waterways. Click here for details about the fund.

Phil Brown is the editor of the Adirondack Explorer newsmagazine.

Explorer answers paddling lawsuit

Explorer Editor Phil Brown paddles near the no-trespassing signs on Shingle Shanty Brook. Photo by Susan Bibeau.

The Adirondack Explorer has filed an answer to the lawsuit accusing me of trespass for paddling through private property on my way to Lake Lila in May 2009.

Essentially, we argue that the waterways in question—Mud Pond, Mud Pond Outlet, and a stretch of Shingle Shanty Brook—are open to the public under the state’s common law.

The common law, inherited from old England, allows the public to travel any inland waterway deemed “navigable in fact.”

But what makes a waterway navigable in fact?

The complainants—the Friends of Thayer Lake and the Brandreth Park Association—contend that the common law applies only to waterways that have a history of commercial use. In the Adirondacks, this usually means log drives.

Our contention is that recreational travel is sufficient to make a waterway navigable in fact (assuming other criteria, such as legal access, are met).

The state Department of Environmental Conservation agrees with us and has told the landowners, in writing, that the waterways in dispute are open to the public. You can read DEC’s letter by clicking this link (PDF): DEC letter.

We have raised several other issues in our defense. You can read the landowners’ complaint and our answer by clicking the links below.

The Explorer has hired Glens Falls attorney John Caffry, an expert in navigation-rights law, to represent us. John is a great guy, but he does need to be paid. Because the Explorer is a nonprofit publication, we don’t have a lot of cash lying around, so we have set up a legal defense fund to help pay our legal bills.

This is an important case that likely will define navigation rights throughout the Adirondacks and the rest of the state. If you care about paddlers’ rights, please consider donating to the cause. Click here to find out how.

landowners complaint PDF

Explorer answer PDF

‘Explorer’ hires lawyer in paddling dispute

The Adirondack Explorer has hired Glens Falls attorney John Caffry to defend me against a lawsuit filed by landowners who claim I trespassed when I paddled through their property near Lake Lila last year.

The state Department of Environmental Conservation has said the waterways in dispute—Mud Pond, Mud Pond Outlet, and Shingle Shanty Brook—are open to the public under the common-law right of navigation.

Caffry represented the Adirondack Mountain Club (ADK) in another navigation-rights case, Adirondack League Club v. Sierra Club et al. That lawsuit resulted in a landmark decision in 1998 by the Court of Appeals, the state’s highest court, in which the judges ruled that recreational use could be considered in deciding whether a waterway is open to the public under the common law.

Caffry said the new lawsuit, filed last week by the Friends of Thayer Lake and the Brandreth Park Association, could impact paddlers throughout the state.

“Not only does this case have the potential to block public access to a navigable waterway, but if the outdated legal theories advanced by the plaintiffs were to be adopted by the courts and become the law, the state of the public’s right of navigation would be set back over a hundred years,” he said.

The landowners assert that a waterway must have a history of commercial use to be subject to the common law. Furthermore, they say Shingle Shanty Brook and the other two waterways lack such a history.

Neil Woodworth, ADK’s executive director, worked with Caffry for nearly a decade on the Adirondack League Club case, fighting for the right of paddlers to travel on navigable waterways.

“John has excellent knowledge of the law,” Woodworth said. “The two of us looked at every single precedent not only in New York, but across the country.”

In that case, the Adirondack League Club sued the Sierra Club and five paddlers who went down the South Branch of the Moose River in the western Adirondacks. It was settled before trial. The settlement allows paddlers to use the river during much of the year if water levels are high enough.

Brandreths sue in dispute over paddling rights

Phil Brown paddles on Shingle Shanty Brook.

A few days ago, the Brandreth Park Association filed a lawsuit against me, alleging that I trespassed when I canoed through private land last year on my way to Lake Lila.

As part of the suit, the association is asking the New York State Supreme Court to declare that the waterways in question—Mud Pond, Mud Pond Outlet, and Shingle Shanty Brook—are not open to the public.

I did my two-day trip last May, starting at Little Tupper Lake and ending at Lake Lila, and wrote about it for the Adirondack Explorer. Click here to read that story.

I believe the common-law right of navigation allows the public to paddle the three waterways even though they flow through private land. The state Department of Environmental Conservation—as well as several legal experts I consulted—support my position. In September, DEC wrote to the association’s attorney, Dennis Phillips, and asserted that the waterways are open under the common law. The department also asked the association to remove cables and no-trespassing signs meant to keep the public out. Click here to read about DEC’s decision.

But the landowners are not backing down. They served me with the complaint in the lawsuit at the Explorer office on Tuesday.

The legal papers do not mention DEC’s decision. We have reported previously that the department and the association disagree over whether a waterway must have a history of commercial use to be subject to the right of navigation. The association contends that Shingle Shanty and the other two waterways have no such history, so they are not open to the public.

The department maintains that if a waterway has the capacity for trade or travel, and if it meets other necessary criteria (such as legal access), then it is open to the public. Furthermore, DEC says recreational use can demonstrate this capacity.

If the Mud Pond-to-Shingle Shanty route is open to the public, paddlers traveling from Little Tupper to Lake Lila will be able to avoid a 0.75-mile portage. That certainly would be a boon. But the larger question is whether the public has the right to paddle waterways that connect parcels of public land, public lakes, or other legal access points. After all, how many rivers in the Adirondacks and elsewhere in the state pass through private land at times? I’m guessing a lot.

Revisiting the Beaver River

Explorer Editor Phil Brown on the Beaver River. Photo by Susan Bibeau.

Click here to read the online version. The print version in our November/October issue will have a few more details.

There’s a chance the dispute will wind up in court. If DEC prevails, it could be a big win for paddlers. Presumably, a ruling in DEC’s favor would affirm that waterways suitable for recreational paddling are subject to the common law.

A quiet part of the Beaver. Photo by Phil Brown.

The Beaver passes through a large private estate en route from Lake Lila to Stillwater Reservoir. A major question is whether this stretch has enough water to be considered navigable.

 “The river is full of rocks,” one of the landowners told me. “It’s navigable only for a short time during the spring. The rest of the time it’s very treacherous.”

When I did it in May, I carried only twice, once around a collapsed bridge and once around some rapids. I also got hung up on rocks several times and had to step out of my canoe.

While researching the story, I talked to two others who have paddled the Beaver in spring, and they said they had to get out of their boats only once or not at all.

Today I talked with Brian Delaney, the owner of High Peaks Cyclery in Lake Placid, who paddled the river last week with his wife, Karen.

“It was a wilderness experience, absolutely unbelievable,” Delaney said. “We didn’t see anyone.”

The water was higher than usual. Delaney said they carried only once, around a log jam. “We just skirted the shoreline,” he said. “Our feet were still in the water.”

He also said they scraped bottom a few times. Even so, he thinks the river could be paddled in lower water. “You could stay on the water and pull your boat over the rocks, but that’s normal paddling for the Adirondacks,” he said.

In short, the experience of several paddlers suggests that the Beaver is navigable. However, questions remain: How much of the year is it navigable? How often do paddlers have to portage? These would need to be answered if the landowners went to court to contest the right of the public to travel on the Beaver—regardless of the outcome of the Shingle Shanty case.

Case against Ausable Chasm paddlers dropped

Ausable Chasm is now open to whitewater paddlers. Photo by Seth Lang.

No charges will be pursued against three kayakers who paddled through Ausable Chasm in June, the Explorer has learned.

The Ausable Chasm Company complained that the three trespassed on the company’s land on the first weekend that the river was declared open (against the company’s wishes) to whitewater paddlers.

Based on the company’s complaints, state troopers filed “a request for a criminal summons” in the Chesterfield Town Court, according to State Police Captain Brent Gillam. However, Gillam said it was up to the town judge to decide whether to press charges.

Today, Gillam said troopers ended up making no arrests and considered the case closed.

A spokesman for the town court confirmed that no charges were filed.

“It’s not something I would be interested in pursuing, based on the federal court cases,” Gillam said. He added, however, that the judge made the decision to dismiss the case.

Paddlers waged a long legal battle to win the right to kayak through the chasm. This includes the right to portage around rapids and other obstacles and to scout the river.

Read my earlier post for more background about the controversy that erupted on the first weekend of paddling.

Ausable paddlers in hot water

Whitewater enthusiasts now have the right to paddle through Ausable Chasm, but they better be sure to obey the letter of the law.

Ausable Chasm.

Ausable Chasm Co. called the state police on Friday—the first day the run was open—to complain that kayakers were trespassing.

State Police Captain Brent Gillam said troopers filed criminal summonses against three paddlers, but the decision on whether to bring charges is in the hands of the town court.

One of the paddlers said on the Northeast Paddlers Message Board that he and two companions had entered private land after encountering a rope on the river.

“We were used to ropes meaning some type of warning down river,” the kayaker said. “We ventured onto private land. We asked the first staff member we saw, and went back. We were stopped by a cop when we were back in the water. After discussion and some waiting we were given violations.”

American Whitewater (AW) is trying to find an attorney to fight the tickets.

AW and Ausable Chasm Co., which runs a tourist facility at the gorge, offer different interpretations of the paddlers’ actions.

Kevin Colburn, AW’s national stewardship director, said they were confused by the rope and walked up an access road to scout the river.

But Tim Bresett, Ausable Chasm’s general manager, contends the paddlers were taking a short cut across the company’s land. “They were a half-mile from the river,” he said. “They were not scouting.”

Bresett said another paddler was ticketed Saturday for stepping out of his kayak to take photos, but Captain Gillam again said troopers only filed a criminal summons with the local court. Gillam said officers cannot charge somone on the spot with a violation (a low-level crime) unless they witnessed the incident.

Colburn suggested that the company is trying to intimidate paddlers from using the river. He said employees were yelling at kayakers who paddled down the river Friday and over the weekend.

“They don’t like the public floating through their river,” he said.

Bresett, however, said the company acknowledges that the public has the right to paddle through the chasm and scout rapids. “It’s not our position to play hardball with these guys,” he said, “but you got to play by the rules.”

After years of negotiation with New York State Electric and Gas, Ausable Chasm, and American Whitewater, the federal government ordered this stretch of river open to the public. Paddlers put in near the power plant at Rainbow Falls, negotiate heavy whitewater (up to Class 5), continue through milder rapids and flatwater, and take out at a bridge on Route 9.

Bresett said many of the kayakers who ventured down the chasm on Friday and over the weekend were “unskilled and unprepared.”

“I guarantee somebody will die on the river this year,” Bresett said.

Under the federal agreement, the river will be open each year from Memorial Day weekend until October 31.