Paddling case advances

State attorney general asks judge to dismiss claims against Explorer editor in navigation-rights dispute.

By Kenneth Aaron

More than three years after Adirondack Explorer Editor Phil Brown paddled through private land on Shingle Shanty Brook and almost two years after he was slapped with a lawsuit accusing him of trespass, the parties in the dispute are preparing to ask a judge to decide on his own whether the waterway is open to the public.

In early August, the state attorney general’s office filed a motion for summary judgment with State Supreme Court Justice Richard T. Aulisi, asking him to decide the case without a trial. The motion included affidavits from a canoe guide, a historian, state officials, and others in support of the state’s argument that the waterway is navigable and should be open to paddlers.

Aulisi is scheduled to hear arguments on the motion and on the merits of the case at 9:30 a.m. Friday, November 16, at the Fulton County Courthouse in Johnstown.

At stake is whether the landowners, Brandreth Park Association and the Friends of Thayer Lake, have the right to block the public from paddling through their land on a waterway that connects two parcels of state-owned Forest Preserve. The case could set a precedent for other contested waterways.

Attorneys for Brown and the landowners, who sued him in 2010, are expected to file similar motions. Summary judgment may be granted if no significant facts are in dispute. In this case, Brown concedes that he paddled through the plaintiffs’ land and portaged around a small set of rapids.

“I think we have very, very few questions of fact,” said Dennis Phillips, the Glens Falls attorney representing the landowners. “We all know what the waterway is like. We all know how it’s been used in the past.”

At issue is a two-mile water route encompassing Mud Pond, Mud Pond Outlet, and part of Shingle Shanty Brook. Brown took this route while traveling between Little Tupper Lake and Lake Lila in May 2009. In doing so, he avoided a 0.8-mile carry.

Phillips argues that Brown and other paddlers should use the trail. Although the state contends that the trail is “difficult and hilly,” Phillips maintains that other carries in the Adirondacks are far longer.

The state Department of Environmental Conservation built the carry trail, but it nonetheless argues that paddlers have the right to use the waterway. In one of the affidavits, DEC attorney Kenneth Hamm said the department was aware of the landowners’ views and so constructed the carry to enable paddlers to avoid legal confrontations.

In New York State, waters are considered open to the public if they are “navigable in fact,” a tenet of English common law that goes back centuries. What, exactly, constitutes navigability in fact is at the heart of the lawsuit.

DEC and the state attorney general—as  well as Brown’s lawyer, John Caffry of Glens Falls—contend that the waterway is navigable in fact because it is viable for travel. The property owners have argued that the waterway has never been used for commercial traffic and therefore is not open to the public.

The state wants the judge to rule that the waterway is navigable in fact and to order the landowners to remove cables and signs discouraging paddlers from using it.

In a document supporting the motion for summary judgment, the state cited testimony from one of the property owners, Donald Potter, who said the waterway has been used to ferry people back and forth to a camp on Mud Pond for generations.

“The waterway is generally floatable by canoe,” Potter testified in an affidavit. And because the Mud Pond camp is unreachable by vehicle, the family has used the waterway over the years to transport all kinds of supplies there such as lumber, doors, telephone wire, and beds.

In fact, the waterway has been in use since the nineteenth century, according to an affidavit by Philip Terrie, who has written three books on Adirondack history. Terrie said E.R. Wallace described the canoe route in his travel book A Descriptive Guide to the Adirondacks, first published in 1872. Terrie likened the book to “a modern day ‘AAA Guide’ or to the Adirondack Mountain Club’s guides to trails and canoe routes.”

Ironically, the landowners’ quest to keep out the public may have attracted more people: Potter testified that canoeists and kayakers have turned up “in droves” over the past few years.

Caffry supports the state’s motion. “The state’s position is consistent with Phil’s—that the waterway is navigable in fact,” he said. “And the motion ought to be granted. And the waterway ought to be declared navigable by the court.”

If the state and Brown prevail, Explorer Publisher Tom Woodman hopes the case will be used by other courts asked to rule on the public right of navigation. He also supports the motion for summary judgment, while recognizing that the judge could rule against the state. “We’re still confident that our interpretation of the law is correct, and there is a public right to navigate these waterways,” Woodman said. ■