State plans to intervene in Adirondack paddling case
Last week, NCPR reported that a group of private landowners near Tupper Lake are suing journalist Phil Brown after he allegedly trespassed on their land.
Brown, managing editor of the Adirondack Explorer magazine, paddled Shingle Shanty Brook to research a story on paddling access rights.
Now Department of Environmental Conservation spokesman Yancey Roy has confirmed that his agency has formally requested that the state Attorney General’s office intervene in the case on behalf of Brown and other paddlers.
(I haven’t heard back yet from the AG’s press office about their plans.)
At issue is an ongoing feud between backcountry canoists, who believe that navigable streams are public right-of-ways, and some landowners, who are convinced that their private property rights are being violated.
“The issue is whether the private land owned by the Brandreth family going back to 1851 is land that is exclusively private or whether there is a public easement over the water course that runs across the northeast part of that property,” said Dennis Phillips, the attorney representing the property owners.
Phillips says he hopes the suit filed by his clients will settle the question.
In September, DEC assistant commissioner Christopher Amata sided with paddlers in the dispute.
He sent a letter to Phillips, insisting that Shingle Shanty Brook should be open to a “public right of navigation” and demanding that the landowners “immediately discontinue all efforts to interfere with, impede or prevent public navigation of those waters.”
Brown says he remains convinced that he was within his legal rights when he paddled the brook and used the short portage trail.
“I’ve talked to many experts about this, lawyers and others,” Brown said. “I felt confident that the law was on our side and that’s why I made the trip. I wouldn’t have intentionally trespassed.”
Phillips says the landowners don’t intend to ask for punitive damages. But if they win their case, they hope to force Brown to pay their legal fees.
Tags: adirondacks, land use, outdoor recreation
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Is the headline accurate? I thought it was a forgone conclusion that the DEC was going to refer this to the AG (and given how they stuck their neck out, I don’t think they really had any other choice), but I don’t think you can say that the state is intervening until the AG confirms that they are.
It is surprising that the cash strapped DEC thinks it is a wise use of taxpayer resources to fight for recreational access to this route, a large portion of which has been described as being ‘extremely clogged with vegetation’ during the height of paddling season (you can confirm this assessment by looking at Google Maps), when a shorter and more direct route to reach the same point already exists.
I would’t be terribly surprised if the AG backs the DEC up given how much publicity this has gotten and how bad everyone feels for the DEC nowadays, but it wouldn’t be a great way for Andrew Cuomo to leave the office given all of his campaign promises about making tough choices and spending the taxpayer’s money wisely.
It would be a fine thing for paddlers to have this issue fully resolved by court action. The current situation where Navigable in Fact is undetermined is becoming problematical for paddlers and those owning riparian land alike.
The Brandreth lawsuit will, if both sides stick it out to an adjudicated end, result in a court decision with far reaching precedence. This will be a good thing either way; obviously better for paddlers if Mr Brown prevails.
As the DEC ruled the NiF status for Shingle Shanty, it is appropriate they ask the AG to support their choice, hopefully taking the financial burden off Phil Brown.
Phil Brown committed the act therefore he should take full financial responsibility for his actions. As a taxpayer I will be enraged if the AG takes it up on behalf of Mr. Brown.
However being who he is, with his connections in the environmental community, if the AG takes up this case it will demonstrate to me that the political climate within the Adirondack Park will remain status quo in the Cuomo administration.
When is enough, enough? It seems to me that certain individuals will not be satisfied until all of it is owned by the state. Plus I get the impression that certain individuals truly loathe the idea of any privately owned land in the park. What about the rights of the land owners?
The state already owns a little more than half of the park yet only about 30% to 35% is utilized by the public so why not begin using the vast untouched land currently in state ownership?
Although I realize that certain people desire to limit how many people can enter the woods. This is great….they want the taxpayers to buy up all of the land and then they’ll turn around and tell them that they can’t use it or enter upon it. Exactly who do you think you are?
Let’s get this straight. Adk Explorer Editor Phil Brown attempted a publicity stunt for an enviro-advocacy publication by trespassing on a parcel of private property, which has been owned by the same family since 1850.
The owners have obviously been good stewards in protecting the vast tract, which has a significantly wilder character than the adjacent, over-run/paddled, Whitney Welcome Wagon Wilderness. As the owners strive to keep their land pristine and ward off invasive species, Mr. Brown thumbs his nose, picks up his canoe and knowingly breaks the law. He then has the nerve to publish a story championing his misdeed!
Now he has the nerve to expect the bankrupt office of the NYS Attorney General to bail him out. Send him to Camp Gariels and throw away the key. What ever happened to common courtesy and respect for private property? Am I missing something? Are enviro-ocates exempt from trespass laws in the Adirondacks? The publicity stunt backfired, Phil, man up and defend yourself
“This will be a good thing either way; obviously better for paddlers if Mr Brown prevails.”
This is a question not for “paddlers” only, but for “RECREATIONAL USE” as defined in the Sierra Club case. If the landowners lose this case it will open all waterways (even those that are defined as very shallow sensitive wetlands) open for public “recreational use” use under the common law.
Phil and the DEC are siding with paddlers and any other use of these waters that have an economic impact at least as great as paddlers, power boaters and jet skiers to name a few.
Brian, why do folks continue to frame this as a paddling issue?
Bill Starr and whos sorry now – this is a RECREATIONAL issue, in direct conflict with environmental protection and conservation. Absolutely no one who cares about protecting the environment would seek the establishment of recreational highways through wetlands like this, and encourage people to force their boats through nearly a mile of what is most accurately described as marsh during paddling season.
Especially when there is a shorter and more direct route to reach the same point, which has been successfully used by the public for years.
Aside from the damage to this specific area, a ruling in the recreational activists’ favor would open up similar wetlands across the state that stretch between two roads or other public access points to unrestricted recreational travel, including motorized use – http://www.youtube.com/watch?v=j5q0XPMqruc
who’s sorry now says:
November 22, 2010 at 10:21 pm
” Are enviro-ocates exempt from trespass laws in the Adirondacks? ”
Yes.
So they own the water… before and after it crosses the property? Then maybe they should pay taxes on the entire length of the waterway. Since they are good citizens, I’m sure they will agree to this.
rdc, where does anyone claim they ‘own the water’?
Do you own the air over your yard? Does the fact that you don’t mean that someone has a legal right to traverse your lawn with a hovercraft, or some future levitating technology?
Here’s what the Court of Appeals says: “As a general principle, if a river is not navigable-in-fact, it is the private property of the adjacent landowner. If, however, a river is navigable-in-fact, it is considered a public highway, notwithstanding the fact that its banks and bed are in private hands.”
Face it Solidago the cat is out of the bag. Land owners no longer have rights if it prevents anyone from entering private land in the Adirondacks if they so desire.
This demonstrates what I said in my previous post that certain people loathe the thought of anyone, or any organization, owning large tracts of land within the park.
Instead of attacking a private land owners civil rights go out and discover what hidden treasures awaits on the 65% to 70% of state land that no one seems to want to visit.
I must agree with Mr. Star. There certainly appears to be a double “paddling” standard as it pertains to the test cases of the Sierra Club group on the AL Club section of the Moose or Mr. Brown’s stunt on Shingle Shanty Brook.
I wonder why access advocates have focused on a select few private landholders, while ignoring the grand possibilities available on the Adk Nature Conservancy’s vast, and very private, Follensby Pond tract?
Follensby of Philosophers Club fame, has been locked up in private hands for decades, yet it is easily accessible from Raquette via a short portage and paddle up the outlet. Why didn’t Mr. Brown attempt his trespass antics on that property? Surely, it would be a more interesting trip than Shingle Shanty or the Moose, and a much more accessible route for the average paddler.
The test cases have primarily focused on tracts of private land/waters where the owners have exhibited good stewardship, In addition to the intrusion on private property, paddlers and paddling gear can introduce Invasive species, a damp pair of Tevas can transport didymo or milfoil as effectively as a boat trailer.
It is ironic that Mr. Brown, who promotes the Adk Explorer’s “quiet waters campaign” is now attempting to deny owners the pleasures of their own private waters, which likely have been kept quiet for over a century.
If the AG’s office takes up this case it will send a message to the environmental community that the State of New York will condone this type of behavior from them. It will also validate what a vast number of people already believe that the state government is truly in collusion with these special interest groups.
The environmentalists have cost the taxpayers a good deal of money over the past couple of years. Two cases in point; The Jim McCulley case involving the Mountain Road where the DEC had to reimburse Mr. McCulley $58,000 and the second is the Lewis Family Farm case where the state will be coughing up $70,000. These two dollar figures do not include the total dollar figure that the taxpayers have paid out in legal fees for state attorneys who spend countless hours behind the scenes, and in court, as they worked on these two cases.
Yet we have not seen the end of the court battles because the Leroy Douglas case is still pending in US District Court and who knows what else.
Mr. Brown knew exactly what he was doing and by publishing his story impresses upon me some type of premeditation on his part. Therefore Mr. Brown should be responsible for his day in court including all associated legal fees.
This is a litmus test for Andrew Cuomo.
Declining this case (hopefully with a firm and public reprimand to the DEC) will send a strong signal that business as usual is over for state agencies captured by special interest groups.
Accepting this case will be a clear signal that ‘business as usual’ in Albany will continue unchallenged, and that we’ve elected someone who has no intention of delivering what was promised.
Let’s all hope he makes the right choice.
My money says Cuomo will have the AG defend this to the death.
Still no response from the AG? Interesting…
I believe that the Brandreth family does not have the right to block the water. But, I also believe the land in question was clearly marked. I have been up there. I would not knowingly violate their stewardship, except, as always, in an emergency or was lost. He was free to paddle the water. But, he broke the law when he portaged. There was no emergency. To me, this is a simple case of trespass during the portage and has no bearing on the law. No precedents will be set today, folks, despite the public sentiment. I have seen.
I believe he had the right to paddle, on the water, where ever he could. But, he did not have the right to get out of his boat onto the lands of a private landowner. People have physiological needs, use a pee bottle or a baggie. Private land is private land. How would you feel about someone using your back yard to leave their “load.” Or, tramping across your lawn with a boat?
I am a paddler. I have been many places in the ADK’s. While I support Mr Browns actions in bringing about a clear cut decision, I also support the land owner and people that live there and their right to own land…and all that that entails. They do not like uninvited people in their yard. Nor would I. Regardless of the nature of their yard.
You can have a highway going through your land. And, you can post that land against trespassers. And, you can run a trail across that land and the highway. This does not mean that just because the trail crosses the road, it is a public highway. If our waterways are in fact highways, then why are the rules different? Could Mr Brown have accomplished the same travel goal without the trespass? Did he conspire with anyone else in doing this? Did they actively help him? Did they fail to report the criminal intent? A bit funny when you think about it. He wants a court ruling, he will get a fine for trespass. Probably a bill from the Brandreths… That WAS the point, wasn’t it?
He should NOT have gotten out of his boat IMHO. This will prove a worthless cause, because the courts can avoid the main issue of the Brandreth family blocking the water. THAT is not legal, but, THAT is not what Mr Brown has provoked, despite the hype. They will simply refuse to prosecute him for the water part, hence it will have no “business” in court. But, as a paddler, I applaud his efforts in trying.