AG asks to join lawsuit

Attorney says a public interest is at stake in dispute over paddling on Shingle Shanty Brook.

By Kenneth Aaron

If a court rejects New York State’s effort to intervene in the trespassing case against Adirondack Explorer Editor Phil Brown, the state will go to bat for paddlers on its own, a lawyer representing the state told a state Supreme Court justice in May.

“The state will need to bring another action in which the same facts and law will be tried,” Assistant Attorney General Kevin Donovan said in a hearing on May 17 before Justice Richard T. Aulisi in Johnstown.

Donovan argued that the Friends of Thayer Lake and the Brandreth Park Association, which sued Brown last fall, are trying to usurp the public’s right to paddle waters that should be open. The state should have the right to guard against that by joining the case, he said.

But the lawyer representing those two groups says the state’s attempt to participate is an affront to private-property owners and should be rejected.

“This case is asking the court to say, basically, ‘Have canoe, will travel,’” said Dennis Phillips, the Glens Falls attorney representing the plaintiffs.

Phillips argued the state’s stance would give the public the right to travel down just about any waterway that can be floated upon by canoe. “That is a very extreme position, and that is why we are in opposition to the state’s intervention,” Phillips said.

The state announced in February that it would seek to join the lawsuit. The state’s Department of Environmental Conservation (DEC) had already warned the property owners to remove cables, no-trespassing signs, and cameras meant to deter paddlers from making their way down Shingle Shanty Brook.

In 2009, Brown took a two-day trip from Little Tupper Lake to Lake Lila. Most of the journey took place in the publicly owned William C. Whitney Wilderness, but he paddled for two miles through private land—on Mud Pond, Mud Pond’s outlet, and a part of Shingle Shanty Brook. He later wrote about his journey for the Explorer as part of a series of articles about navigation rights.

Brown’s lawyer, John Caffry of Glens Falls, told Aulisi that he supports the state’s motion to intervene in the lawsuit. Brown is a lone paddler, he said, but the ultimate issue—whether the waters are legally navigable—is a question that needs the state’s involvement to be settled. Unless the state intervenes, Caffry said, a judgment for or against Brown isn’t binding on anybody else.

In arguing against the state, Phillips charged that DEC for years has represented the interests of pro-paddling groups such as the Sierra Club over those of the public.  Donovan denied the contention. “I’m not going to address the conspiracy theory,” he said. He noted that he was practicing law in Virginia when the collaboration allegedly began. “Apparently this is a far-reaching conspiracy,” he said.

“They usually are,” Aulisi quipped.

The moment of levity came at the end of a half-hour proceeding. A handful of spectators attended the hearing, including Colin Bradford, president of the Brandreth Park Association, and Judson Potter, who is a past president of the group. Charles Morrison, a former DEC executive who worked on draft legislation to clarify paddlers’ rights and has written extensively on the issue, also attended, as did Brown and Tom Woodman, publisher of the Explorer.

Despite his criticism of the state, Phillips did have one nice thing to say about DEC: the canoe route that it created in the Whitney Wilderness is entirely on public land—if you include the 0.8-mile portage from Lilypad Pond to the publicly owned part of Shingle Shanty Brook. Brown avoided the carry by paddling the two miles through private property.

“We thought the state of New York did a great job” regarding the route, Phillips said. The existence of that trail, he said after the hearing, is implicit proof that the state recognizes the stretch through private land should be off-limits to the public.

As of press time, Aulisi had not ruled on the state’s motion. n