Paddling suit advances

Judge to hear arguments in November in dispute over public’s right to paddle on privately owned waterway.

By Kenneth Aaron

The landowners suing Adirondack Explorer Editor Phil Brown for trespass say he’s just the latest in a long line of people who have tried to pry open closed waters for public use, and if he succeeds, they argue, he will weaken traditional standards of property rights.

In a legal memorandum filed in late September, Dennis Phillips, the attorney for the Friends of Thayer Lake and the Brandreth Park Association, asserts that Brown is carrying the flag for a small band of paddling fanatics, including members of the Sierra Club, who would open just about every stream in New York State to canoes and kayaks.

“With a little creativity, any combination of a land and water route could be deemed navigable in fact and opened as a public highway,” Phillips contends.

The memorandum is one of a slew of documents submitted since August by attorneys for the plaintiffs, Brown, and New York State, all of whom are asking State Supreme Court Justice Richard T. Aulisi to decide the case without a jury trial.

While the sides disagree over whether Brown had the right to paddle through the private property—on Mud Pond, Mud Pond Outlet, and part of Shingle Shanty Brook—the basic facts are not in dispute. Brown concedes that he paddled the two-mile stretch in May 2009 while traveling between state-owned waters in the William C. Whitney Wilderness. The only question is whether the Brandreth waters are “navigable in fact,” a legal concept that dates to medieval England.

Lawyers for all three parties are scheduled to argue the case at 9:30 a.m. Friday, November 16, at the Fulton County Courthouse in Johnstown.

The Friends of Thayer Lake and the Brandreth Park Association argue that the question of navigability depends on whether the stretch is useful for commerce. Since the serpentine, shallow waters aren’t vital to trade, they say, they should remain off limits to public travel.

Although the state’s highest court ruled in the 1990s that a waterway’s capacity for travel could be considered evidence of its navigability in fact, Phillips argues that such a capacity is not enough. Rather, he says such evidence needs to be taken into account in conjunction with the waterway’s suitability for commerce and its historical use.

Brown’s lawyer, John Caffry, maintains that such a reading is too narrow. “If it is found that there is that capacity there, and even if it’s just by canoes and kayaks, that is adequate,” he told the Explorer (Phillips declined to be interviewed for this story).

Caffry sees the disputed waters as part of a longer waterway that starts on the outlet of Salmon Lake and goes to Lake Lila and beyond, even though it flows partly through private land and even though a few stretches aren’t navigable because of rapids or obstructions. Even the landowners suing Brown, he said, considered their waters part of a ten-mile waterway. “If you look at a map, it’s all one continuous body of water,” Caffry said. “It happens to have some wide sections that are ponded, and it happens to have some sections that are rapids.”

Phillips, however, contends that the landowners have the exclusive right to paddle the privately owned waters. If the public is allowed to paddle there as well, he says in an affidavit, “the well-settled expectations of private property will be abolished and the general public will get a free ride on the backs of the landowning private sector.”

In his legal memorandum, Caffry argues that the common-law public right of navigation supersedes any recreational rights claimed by the landowners. Officials with the state Department of Environmental Conservation who paddled the private waters concluded that they are navigable in fact. The state would later join the lawsuit to uphold the public right of navigation.

Brown was sued in 2010, a year after writing about a seventeen-mile trip from Little Tupper Lake to Lake Lila, a route known as the Lila Traverse. He undertook the two-day journey after researching the law, with the intent to write an article about paddlers’ rights.

He could have made the trip without paddling down any disputed territory: the state created a 0.8-mile carry trail that avoids the stretch of water at the heart of the suit. Phillips says Brown should have contented himself with paddling the state-owned waterways in the Whitney Wilderness and portaged his canoe to skirt private land.

“Yet Defendant Brown and the Sierra Club do not see what has been generously purchased for them by their fellow State-citizens; instead, they only see what they do not have, only where they cannot go,” Phillips asserts.

But the existence of the carry trail is irrelevant, according to Caffry. It’s as if somebody tried to bar drivers from the Northway and gave them directions to Route 9 instead, he said. Just as the Northway is open to the public, he added, so should be Shingle Shanty Brook. ■