‘Explorer’ denies trespass

In answer to lawsuit, editor contends the public has the right to paddle on private waterways connecting public lands.

By Kenneth Aaron

In answer to a trespassing lawsuit, the editor of the Adirondack Explorer contends he had the right to paddle remote private waterways that link two pieces of state-owned Forest Preserve, and his lawyer says more than a century of case law backs him up.

The Friends of Thayer Lake and the Brandreth Park Association sued Phil Brown in November, arguing that his two-mile canoe voyage across their posted land in May 2009 constituted civil trespass. Brown wrote about his excursion in the Explorer that July.

But John Caffry, the Glens Falls attorney representing Brown, argues that the route Brown took—Mud Pond, Mud Pond Outlet and Shingle Shanty Brook—are open to recreational users under the common-law right of navigation. Caffry filed the answer to the suit in January. (Both the complaint and the answer are available here.)

The public has a right to traverse privately owned waters if they are navigable-in-fact, a principle that has its roots in English common law and was established before New York even became a state. But what, exactly, constitutes navigability-in-fact has been at the root of thorny debates for generations.

The plaintiffs contend that the law allows public access only if a waterway has been plied for commercial traffic in the past. A key point of their suit is that the route has no such history.

But Caffry contends that reading is too narrow. Simply using a waterway for travel, even for recreation alone, is sufficient to make it navigable-in-fact, he argues.

The law “doesn’t require that there be a history of use,” he said. “It only has to be susceptible to use for trade and travel. The test does not mandate commerce.” In any case, he said, recreational use could be commercial as well, especially if a paid guide is involved.

Caffry said courts determined long ago that recreational use is sufficient to make a waterway navigable-in-fact. In the 1990s, Caffry and Neil Woodworth represented the Adirondack Mountain Club when it intervened in a landmark navigation-rights case, taking the side of five people who paddled through private land on the South Branch of the Moose River. Caffry said Woodworth, the club’s staff counsel (and now executive director), discovered records from court cases dating back to the nineteenth century that found recreation—not commerce—was sufficient to determine rights of access.

“I don’t think the recreational test is anything new,” Caffry said. And while it hasn’t been tested in court in some time, he said that he is simply re-asserting it—not inventing something new.

Dennis Phillips, the attorney for the plaintiffs, declined to comment on Brown’s response to the lawsuit. Because the Explorer was seeking donations from readers to help pay for Brown’s defense, Phillips fears that speaking with an Explorer reporter might pose a conflict of interest.

So far, that fund has raised $20,000 toward Brown’s defense. Explorer Publisher Tom Woodman called the support encouraging. He was especially heartened in that he received offers of help even before establishing the fund. “People aren’t normally looking for causes to give money to without being asked,” he said.

Although the Explorer did not seek this lawsuit, Woodman said he hopes it will resolve questions about the common-law rights of paddlers. “There are important principles in question here, and here’s a chance to clarify them through final court action,” he said.

Brown could have avoided testing those principles by carrying his canoe 0.8 miles through state-owned Forest Preserve lands, following a trail that leads from Lilypad Pond to the publicly owned stretch of Shingle Shanty Brook, which empties into Lake Lila. The state built the carry trail, a point made in the suit.

Caffry declared the existing portage irrelevant. “The state’s free to build all the trails it wants,” he said. “That doesn’t change the right of navigation.”

Caffry noted that the waterways in dispute connect two water bodies (Lilypad Pond and Lake Lila) in different parts of the state-owned William C. Whitney Wilderness.

Two decades ago, the state Department of Environmental Conservation compiled a draft list of 252 waterways—including fifty in the Adirondacks—that were thought to be open to the public under the common law. Shingle Shanty Brook was on that list. However, the list was never subject to public scrutiny; DEC stopped work on it when the Moose River lawsuit was filed.

Last fall, DEC declared that the water route through Mud Pond and Shingle Shanty Brook is navigable-in-fact. The department asked the landowners to remove cables and no-trespassing signs meant to deter paddlers. When the owners instead filed suit against Brown, DEC asked the state attorney general to intervene in the case to defend its position. At press time, both sides were waiting for the attorney general to respond to the request.