Photo by Susan Bibeau
By Kenneth Aaron
The first time Dave Cilley encountered the no-trespassing cable across Shingle Shanty Brook, it was in the late 1970s or 1980s, shortly after the state purchased land around Lake Lila and he was exploring the area.
He turned back, and it’s been forbidden fruit for him ever since. Until this year, that is, after a state judge ruled that the public has a right to travel the waterway—Mud Pond, Mud Pond Outlet, and a privately owned stretch of Shingle Shanty Brook—under the common-law right of navigation.
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The landowners, the Friends of Thayer Lake and the Brandreth Park Association, plan to appeal the decision to the Appellate Division of State Supreme Court, which may hear arguments late in the year.
Cilley, who owns St. Regis Canoe Outfitters, said his clients began using the route this spring and they reported back that the landowners have removed signs and cables meant to deter people from paddling the waterway. “The fact that they’ve taken the barrier out of the river is a big plus,” said Cilley, who has yet to paddle the stretch himself.
“I know it’s a relatively wild section,” he said of the waterway. “Places like that that haven’t been open to the public are generally pretty pristine.”
As a result of the ruling, paddlers no longer have to carry their boats three-quarters of a mile between Lilypad Pond and the state-owned portion of Shingle Shanty Brook, both of which lie within the William C. Whitney Wilderness. From Lilypad Pond, they can now paddle to Mud Pond, carry around a short rapid, paddle the outlet to Shingle Shanty, and take the brook to Lake Lila.
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State Supreme Court Justice Richard T. Aulisi issued the decision in late February in a case involving Adirondack Explorer Editor Phil Brown, who paddled the disputed waterway in 2009 while researching an article for the newsmagazine. He was sued for trespass in 2010. New York State Attorney General Eric Schneiderman intervened to defend the public’s right to paddle the waterway.
The landowners’ attorney, Dennis Phillips of Glens Falls, declined to discuss the appeal, but he has notified the Appellate Division that he intends to offer several arguments for overturning Aulisi. In the lower court, Phillips contended that the common-law right of navigation does not apply to a waterway unless it has a history of or utility for commercial use and that the waterway in question is too small for commercial transportation.
In a document filed with the Appellate Division, Phillips indicates that he intends to stick to that argument. He suggests that Aulisi’s ruling amounts to “a reformulation of the common law.”
John Caffry, a Glens Falls attorney representing Brown, said he doesn’t think the court will accept that argument. He contends that recreational use is sufficient to trigger the common-law right. “We think the recreational test is the law at this point—or is certainly an option as one way to prove navigability at this point,” Caffry said.
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Even so, Caffry added, the landowners’ varied use of the waterway demonstrates that it’s suitable for both commercial and recreational travel. He noted that the owners had a long history of transporting building materials and furs over the waterway.
In the Appellate Division filing, Phillips also questioned the need for the public to paddle the waterway, given that the state cut a carry trail across state land to avoid the private property. And he questioned whether the public has the right to use the short carry trail on private land that skirts the Mud Pond rapid. He said the path lies “well beyond the mean high water mark” of the stream.
Now that the waterway is open, Cilley said he will urge his clients to be respectful of the private property. The common law gives paddlers the right to travel a waterway and scout and carry around rapids and other obstacles. However, it does not permit them to anchor, swim, picnic, fish, camp, or otherwise tarry on private land.
“There’s a lot of other places that are very heavily used where the public route goes through private land,” Cilley said. “Certainly, we make every effort to not only make people aware of it, but encourage them to show the respect.”
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“The main thing is to let people know there are responsibilities that go along with any right,” he said. “I think most people appreciate that.” ■
” “Places like that that haven’t been open to the public are generally pretty pristine.”” Can’t argue with that. No longer the case for this stretch of waterway. Too bad. It seems like here the law facilitates the environmental degradation of the place. But progress is progress. Surprised that so many normally “green” groups supported this??
Paul, I don’t know what you mean by green in quotation marks. Your observation is too broad. Yes, there are environmentalists who advocate zero access in certain habitats, but I’ve never met one in person. There is nothing fundamentally non-green about endorsing responsible, light use of wild spaces. I think giving paddlers the right to quietly pass through the Shingle Shanty Brook on water (but not make shore) clearly qualifies as responsible light use. Green or not-green, the only people I’ve ever known who advocate zero access are private land owners. Maybe you’re in that group.
Jon, My point is that some of these groups have as a goal increasing recreational access for particular user groups. That may lead to “light use” as you call it. Or it may lead to resources degradation like we see in many Wilderness areas where there is over use. Also, since these are private waterways there will be no public enforcement. That is why you can see from the Brandeth’s original complaint that this waterway has already experienced people getting out of their boats and walking around on the banks and shorelines unnecessarily. And yes I am a private landowner. And you may use (even on foot) my property in the “light” manner you describe. But it it goes beyond that I will have to Post it to protect it. This isn’t currently an option for these owners trying to protect this resource.
Phil Brown is a rable rousing elitist that ignores property owners rights and ramrods his agenda with the backing of rich, environmental wackos that are determined to drive everyone out of the Adirondacks that doesn’t lockstep with their goal of using the land and the woods as they see fit.
They want it all for themselves no matter who’s rights they trample to pursue their extreme agendas!
Disgusting SOCIALISTS!!!!!!!!!!
Captain J,
I am not an environmental socialistic lockstep wacko.Please, not Lockstep. I can think for myself. And politics has nothing to do with this. You make a point that public enforcement is limited on private property. Private waterways? The banks should be treated with respect and and let’s hope that’ll be the case.
Environmentalists/conservationists almost always favor responsible public access to wild places that have the capability of withstanding a modicum of use. After all, without some use,however light, Wilderness has little meaning as a designation. (I am not talking about ecologically sensitive preserves that can’t tolerate any use and where it may be necessary to preclude all human activity or presence, but there are relatively few such placces.)
This makes a good story, Aaron, but you left out the crucial role of the Sierra Club and DEC. Phil never would have been sued by Brandreth except for the pressure created on them by Sierra and DEC, both involved in this issue both before and after his May, 2009 trip down Shingle Shanty Brook and his story about the trip in July 2009 Explorer.
Starting in 1988 DEC recognized and publicly supported the common law public right of navigation and it asked the AG to intervene on the side of Sierra when the League Club sued the Sierra Club for trespass in the South Branch Moose case. ADK also intervened on the “good” side
In 1998 the Court of Appeals issued a decision that was favorable for recreational use of navigable-in-fact waterways while sending the issue of navigability of the Moose back to the lower court for a trial on the facts.In 2000 the parties signed an agreement to allow public use under conditions, thus avoiding the lower court trial.
By 2005, Morrison and Humbach, involved along with Jamieson in the 1980s, got re-involved, by publishing a Q and A paper and getting Grannis, in 1986, to reintroduce the 1989 DEC-Humbach-Hoyt bill of which he had been an original sponsor. Phil had advice in the early spring from these principals and others that Shingle Shanty was navigable. DEC had it on its draft inventory list of navigable waterways, prepared in 1990. Brandreth had been blocking it for several decades and increasingly laid claim in its deeds to “surface water recreational rights” aka public navigation rights.
In August 2009, Sierra sent a a major letter of complaint to DEC about Brandreth’s illegal blockage, asking DEC to investigate. The complaint fell into the receptive hands of Amato and Hamm who met with Brandreth in December 2009 and investigated and subsequently negotiated for a three-year trial public access period. In August 2010 the Brandreth Association turned that down whereupon DEC wrote to Brandreth in more threatening terms telling them that the illegal blockage would not be tolerated.
Brandreth felt backed into a corner and sued Phil on November 15, 2010. DEC, within a few days at most, asked the AG to intervene. That request got caught in the Cuomo-Schneiderman transition but finally, in February 2011, at a Sierra Club breakfast in NYC, after some frantic effort by Sierra to make it happen, Schneiderman, at a Sierra Club breakfast in NYC in February 2011, announced that he would intervene.
The rest is history, except to say that Phil is lucky to have a lawyer as well versed as Caffry is in the law of public navigation rights, as John’s experience with it goes back at least to the Moose case in which he represented ADK. He also went down Shingle Shanty.
Brandreth hasn’t got the slightest chance of winning its appeal and overturning Judge Aulisi’s decision.If you read it you will know what I mean. I predict that Brandreth will lose on appeal by a resounding 5 to 0 definitive decision.That will really drive it home to those recalcitrants who still see a glimmer of hope in the 1998 Moose decision that would allow them to exclude the public on navigable waterways.