By MICHAEL VIRTANEN
A state judge ruled Thursday that uninvited paddlers have no right to canoe the 1.8-mile Mud Pond Waterway in privately owned Brandreth Park in a remote stretch of the northwestern Adirondacks.
State Supreme Court Justice Richard Aulisi, after hearing three weeks of trial testimony this summer, reversed his own initial ruling in the lawsuit brought by the landowners who want strangers kept off their lands and waters.
The case had wound its way up to New York’s Court of Appeals, which sent it back down for a full trial to answer specific questions including commercial utility and accessibility.
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Aulisi wrote that waterways through private land “must provide practical utility to the public as a means for transportation, whether for trade or travel,” part of the legal test for being determined “navigable in fact” under New York’s common law, which gives the public the right to use them.
He concluded Thursday that Mud Pond, its outlet and parts of Shingle Shanty Brook and Lilypad Pond have little historical or prospective commercial use and don’t meet that test.
They are part of the so-called Lila Traverse, a roughly 17-mile canoe trip between publicly owned lands and waters in the Whitney Wilderness.
“After hearing all the proof and reviewing the record before it, this court opines that the evidence establishes that the actual and potential use of the pond is limited to recreation,” Aulisi wrote. “Recreational use alone is insufficient to deem a waterway navigable-in-fact, and the record reveals that only a marginal segment of the general population would benefit from using the disputed waterway for recreational travel.”
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The land is owned and controlled by the Friends of Thayer Lake LLC and affiliated Brandreth Park Association.
The defendant is former Adirondack Explorer editor Phil Brown, who in 2009 wrote an article for the magazine about his trip on the traverse including the disputed Mud Pond Waterway. He was accused by the landowners of trespassing, though the ruling against him makes no such finding.
“I am disappointed in the judge’s decision,” Brown said, who declined to say whether he would appeal. “As many witnesses testified at trial, the waterway in dispute can be easily traveled by canoe or kayak, providing a paddling route between two parts of the public forest preserve. We are weighing our next step. I want to thank all the paddlers and Explorer readers who have supported us over the years.”
Explorer publisher Tracy Ormsbee could not immediately say whether the nonprofit magazine would support an appeal on behalf of its former editor. “It’s been a long process and, of course, we’re disappointed by the judge’s decision,” she said. “The Explorer board of directors and I will be considering our options.”
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New York’s Department of Environmental Conservation subsequently sided with Brown. The DEC concluded the stretch through Brandreth land was rightfully open to the public. The department provided a statement saying it is “reviewing this decision and considering all legal options.”
Brandreth Park members argued that there’s a state-established portage of less than a mile that paddlers can instead take to avoid their land entirely. A lawyer representing the landowners, Dennis J. Phillips, issued a written statement praising the court for recognizing “that recreational paddlers need not trespass on privately owned lands to enjoy the backcountry experience provided by the State of New York’s William C. Whitney Wilderness Area.”
“There is ample room for public enjoyment of the Adirondacks without encroaching on private property owners and their enjoyment,” Phillips wrote. “We are pleased that, after nine years of litigation, this matter is resolved.”
Aulisi wrote that evidence showed the traverse is 16.58 miles with the 0.8-mile portage, and it’s 17.86 miles with paddling the disputed waterway, which is only slightly faster. He noted that the state carry trail is the “sole, primary route available to members of the public at large” and that he disagreed with Brown’s characterization of it as an “alternate detour route.”
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The landowners sued the DEC separately, claiming improper taking of their property rights. The department participated in Brown’s trial.
In 2010, after two senior department officials canoed the waterway at the invitation of the landowners, the DEC said its settlement attempt failed and advised Brandreth to take down its “No Trespassing” signs and remove its cameras, calling its attempts to keep the public off the waterway “unlawful.”
In 2013, Aulisi dismissed the landowners’ suit based on legal arguments in the case. The mid-level Appellate Division upheld that dismissal but those justices were split 3-2.
In Thursday’s ruling, Aulisi several times cited the conclusions of those two dissenting justices.
He rejected the landowners’ request for compensatory or punitive damages but awarded them some legal costs and directed they submit a proposed judgment.
How may I access a copy of the actual ruling ASAP? Thanks!
We have inserted a link to it in the story.
Reading the judgement was an interesting read. I agree that the use of the area by the owners should not be considered, kind of like self-incrimination. The clearing done also means the passageway is not in its virgin state, and the virgin state should be considered, not any improvements.
On the other hand, the existence of the current portage is irrelevant. The passage is either navigable-in-fact or not — the existence of a relatively new portage should not change that. If the portage dates back 100+ years, and was the primarily used route, that would be different. Also, usage within a remote area should be relative to the remote area. The local ponds only supports several ?hundred? people per year, then the test should be to this set of people, not large cities/villages. It’s also hard to estimate people like me who have been waiting for this all to shake out before entering.
Great….finally Phil Brown gets what he deserves. Literally advocating that people should violate the rights of the landowners who maintain and actually pay the taxes for their property. Perhaps if he had deigned to “ask for permission” to paddle through the posted property it would have alleviated years of expense to all parties!
Instead he chose to publicly flaunt his illegal passage through the property and “finally” got what he deserved!!
Thank you
How sad. I wonder just how much disruption canoers and kayakers would cause to the property owners. The property rights movement in this country seems to be running amok. What ever happened to the concept of the greater public good? Sad.
property rights actually won? shocked I tellya, shocked!
Disappointing, to say the least. And does this set precedent for many others?
What does this mean for fishing rights?
Isn’t this the DEC policy below. Does the ruling mean that recreational use alone is no longer valid?
—- Waterways subject to the public right of navigation may be navigated for any commercial or recreational purpose, and attempts by landowners to interfere with the public’s right to navigate violates the State’s trust interest in the waterway, i.e., the owner of the navigable waterway has no right to close it to the public or otherwise harass the public
Enough already! I’m an avid solo canoeist who loves the wild places but we’ve had our time in court. Harassing land owners through endless litigation is distracting and counter productive. The decision’s been made, let’s move on and concentrate on taking care of what we have.
Eric, I would have to disagree, as this impacts the definition of navigable-in-fact and certainly is worth a continued fight over. If narrowly defined recreational use has no impact on whether or not a waterway is navigable-in-fact and could have serious impacts on public access to waterways.
Please see further explanation from American Whitewater – who obviously fall on the side of believing recreational use should define navigable-in-fact –
“New York Courts have interpreted the statute in a manner consistent with the traditional common law rule: in order to be navigable-in-fact, a river must provide practical utility to the public as a means of transportation. Traditionally, transportation was defined narrowly, referring to a body of water’s capacity for transporting commercial goods or materials to market. However, as social and economic conditions have evolved in New York, courts have broadened their interpretation of what activities satisfy the definition of transportation.3) According to the Court of Appeals in Adirondack League Club, Inc. v. Sierra Club, the “paramount concern is the capacity of the river to transport, whether for trade or travel.”4)
Adirondack League Club, Inc. v. Sierra Club, decided in 1998 by the New York Court of Appeals, remains the most important decision on this subject. In determining whether kayakers and canoers on the South Branch of the Moose River had trespassed on a riparian owner’s property, the court held that recreational use is part of the navigability analysis. Although the Court did not make a final judgment on whether the Moose River itself was navigable, the highest court in New York did take an important step in expanding the definition of what waterways qualify as navigable-in-fact.
In Adirondack League Club, however, the court did not discuss how much weight should be given to recreational use within the overall navigability test. Therefore, the issue remains somewhat open to debate. Courts have generally concluded that although the ability to sustain recreational use is a relevant factor when determining navigability, it is not the only or most important factor. Capacity to support transportation remains the paramount inquiry. In 1995, a New York State appeals court found that a pond was not navigable because there was no evidence of any historical use of the pond for commercial purposes, and the evidence of small boat and canoe recreational use on the pond was insufficient “to demonstrate that the pond has any capacity or suitability for commercial transportation.”5). ”
from – https://www.americanwhitewater.org/content/Wiki/access:ny
Historical use? History evolves into the future. Paddling has become a very popular sport in recent years and so recent history should also be considered.
The landowners sued. They brought the endless litigation. I am sure that you agreed that the “decision has been made” and to “move on” when the judge ruled the opposite way in an earlier decision. Or, maybe the appeal by the landowners that led to this decision, was just as valid as the forthcoming appeal by Brown and the DEC.
If a waterway is navigable and a commercial outfitter were to lead paid trips over it, would that not constitute commercial use and transportation?
I hope they appeal this!! This should be decided by a group of people- not one judge… seems to me that any intelligent person would see the commercial use of being able to navigate these waters– seems like it would attract people to the area- tourism/nature study, etc.
The idea that the landowners own the water, or the right to use that water– that comes off of neighbors properties, travels over their property, and then over other peoples properties is so ridiculous. Change needs to be made in these laws. Good luck!!!!!!
“Aulisi wrote that evidence showed the traverse is 16.58 miles with the 0.8-mile portage, and it’s 17.86 miles with paddling the disputed waterway, which is only slightly faster. He noted that the state carry trail is the “sole, primary route available to members of the public at large” and that he disagreed with Brown’s characterization of it as an “alternate detour route.”” – Clearly, the judge has never portaged.
Clearly.
This will be appealed. DEC intervened to protect the public’s right of navigation. If DEC quits now, other property owners may feel justified in erecting new barricades on their streams. DEC also has a free appellate lawyer in the form of the AG’s office, so the expense of further litigation is not a significant factor. The plaintiffs also might want to appeal; although their claimed property rights were vindicated, the court denied money damages despite rejecting the paddlers’ defense to the claim of trespassing. The court’s conclusion that the relative ease of traveling between two state-owned bodies of water via the disputed waterway was not enough to establish navigability-in-fact is troublesome, but understandable in view of the lack of guidance as to just how much of a factor is recreational use. The state’s higher courts will have to resolve this.
Historical use? History evolves into the future. Paddling has become a very popular sport in recent years and so recent history should also be considered.