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Coverage of the Shingle Shanty case
Posted on March 12th, 2013 1 comment - Add a comment >>
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.
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.
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.
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.
The Albany Times Union wrote an editorial praising the decision.
The New York League of Conservation Voters also praised the decision.
Will Doolittle, a columnist for the Glens Falls Post-Star, wrote a piece criticizing environmental activists who cheered the ruling, accusing them of hypocrisy.
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.
Outside Magazine published a short item on its website, with links to longer stories.
If you’d like to read the decision yourself, click the link below (PDF file).
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AG defends right to paddle
Posted on February 25th, 2011 3 comments Add a comment >>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.
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AG intervenes in paddling lawsuit
Posted on February 24th, 2011 3 comments Add a comment >>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.
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.
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Editorial on Shingle Shanty
Posted on January 28th, 2011 1 comment - Add a comment >>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.
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Explorer answers paddling lawsuit
Posted on January 17th, 2011 2 comments Add a comment >>
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.
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Brandreths sue in dispute over paddling rights
Posted on November 18th, 2010 35 comments Add a comment >>
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.
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Revisiting the Beaver River
Posted on October 21st, 2010 2 comments Add a comment >>Our latest story about Shingle Shanty Brook has attracted some attention in the blogosphere and elsewhere. The state Department of Environmental Conservation has determined that the disputed stretch through private land is open to the public under the common law right of navigation.
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.
So what waterways besides Shingle Shanty might be affected by such a ruling? One candidate is the Beaver River. I paddled that river this spring and wrote about the trip for the Explorer. Click here to read the story.
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.
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Sierra Club on Shingle Shanty
Posted on December 29th, 2009 1 comment - Add a comment >>Those of you who have been following the saga of Shingle Shanty Brook may be interested in an article that appears in the latest newsletter of the Sierra Club’s Atlantic chapter, written by Charles Morrison, the former director of natural resources at the state Department of Environmental Conservation.
Morrison and two other Sierra Club members have asked DEC to force a private landowner to remove a cable strung across the brook to keep out paddlers. The club contends the public has a right to paddle the waterway. DEC says it is looking into the matter.
In the article, Morrison describes Shingle Shanty Brook as “a critical link” in the canoe trip from Little Tupper Lake and Lake Lila. The blockage of the waterway, he says, “forces paddlers to make a one-mile carry over a very rough trail in the Adirondack Forest Preserve.”
You can read the entire newsletter (which goes to about 35,000 members) by clicking here. The article in question appears on Page 8.
You can read the account of my paddle along the disputed waterway here.
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Shingle Shanty decision a ways off
Posted on November 18th, 2009 1 comment - Add a comment >>Don’t expect the state Department of Environmental Conservation to reach a quick decision on the Sierra Club’s request to force landowners to remove a steel cable that stretches across Shingle Shanty Brook.
In a recent letter to the club, DEC Regional Director Betsy Lowe says the department plans to provide “a comprehensive response” to the request. “As you can imagine, this will take some time given the careful consideration required by the Department’s technical and legal staff, possible coordination with the State Office of the Attorney General, and the need to balance a variety of demands with limited resources,” she wrote on November 4.
The Sierra Club contends that the public has a common-law right to paddle through a corner of a large tract of private land owned by the Friends of Thayer Lake, which is affiliated with the Brandreth Park Association. The association owns the recreational rights to the land and has posted no-trespassing signs to deter paddlers from using the waterways in question.
The club’s request was sparked in part by an article that appeared in the July/August issue of the Adirondack Explorer. In it, I described my two-day trip from Little Tupper Lake to Lake Lila. At one stage, I paddled on three connected waterways owned by the Friends of Thayer Lake: Mud Pond, the pond’s outlet, and a stretch of Shingle Shanty Brook. This enabled me to avoid a mile-long portage.
The Brandreth Park Association contends that the public doesn’t have the right to paddle these waterways. Since my article appeared, the owners have strung a rope across Mud Pond, put up additional no-trespassing signs, and installed two motion-sensitive cameras.
The Sierra Club contends that the chain, rope, and signs are an illegal blockage of a public canoe route.
Lowe’s letter was addressed to Roger Gray and John Nemjo, the co-chairmen of the club’s Adirondack Committee, and Charles Morrison, who is heading the committee’s public-navigation-rights project.
Click here for an earlier post that contains links to letters to DEC from the Sierra Club and Brandreth Park Association.
Click the link below for a PDF of Betsy Lowe’s reply to the club.
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Shingle Shanty update
Posted on June 22nd, 2009 1 comment - Add a comment >>Charles Morrison, a former DEC official, wrote a letter to the Times Union in response to my op-ed piece on the navigability of Shingle Shanty Brook. He agrees that it should be open to the public. Morrison is the former director of natural resources planning at DEC. In that capacity, he once commissioned a lawyer to study the legal history of the common-law right of navigation. A few years ago, he co-authored a booklet on navigation rights that can be found on the Web site of the Association for the Protection of the Adirondacks.
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Name: Phil
Bio: Phil Brown has been editing the Adirondack Explorer since 1999. When he isn’t at his desk, he’s usually out hiking, paddling, skiing, or doing something else important. You can follow his adventures and his musings on the Adirondacks in the Explorer and on this blog.
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