Breaking: NY Attorney General intervenes in paddling case
Attorney General Eric Schneiderman has intervened in a paddling vs. property rights case in the Adirondacks.
The legal battle has pitted Phil Brown, editor of the Adirondack Explorer magazine and an avid paddler, against the owners of Brandreth Park, a large estate in the central Adirondacks.
Brown wrote about a trip he took on a posted section of Shingle Shanty Brook, arguing that state navigation law should allow paddlers to canoe the route legally.
The AG’s office has formally endorsed that argument, citing testimony by state Environment officials that the route is, in fact, navigable.
The state has also filed a formal complaint against the property owners, arguing that the posted signs and a cable across the river constitute a “public nuisance.”
The attorney for the group Friends of Thayer Lake, who own the property, had urged the state to stay out of the case, arguing that because the route isn’t navigable, the state has no interest in the suit.
Tomorrow during the 8 O’clock Hour, we’ll hear from the attorneys involved on both sides of the case.
Tags: adirondacks
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What is it about the concept of private property that is soooooo hard to understand?
Oh well, the State will use it’s apparently unlimited funds to insure a victory for the environmental lobby. Go team!
What is it about the concept of public navigation rights that is so hard to understand. The law this is based on predates the founding of the nation.
Fire up the airboats boys! According to the AG, if you can get your recreational watercraft across a wetland, it is a public highway. Don’t let your pesky local Audubon Society get in your way – that waterfowl refuge is a public highway and they never had the right to tell you you couldn’t travel through there. If they hassle you, tell ’em the AG and Phil Brown sent you. Don’t let them steal your ancient rights!
What is the legal definition of, “Navigable”, in New York State?
This is the 1997 interpretation that the DEC uses to define “navigable waterways”
http://www.dec.ny.gov/outdoor/8371.html
Solidago, red herrings stink when they get old!
The DEC’s papers to the court asking for inclusion are pretty lame. They say that they paddled the waterway one spring with the permission of the owner and base their conclusion that the waterway is navigable-in-fact on that one canoe trip. You have to make a better case than that. If that is all it takes the Sierra Club vs. ALC never would have made it to court.
John there is a difference between Navigable and Navigable-in-fact. The first one is trivial, the second is why this case could take some time. This ancient” right is not as simple as some would like.
PAul, please explain what navigable means and what navigable in fact. Everyone is using this word and nobody is dealing with the definitions. From what I am reading above, there are as many understandings of these terms as there are people posting. There must be a legal definition that the courts used.
The last defense used in an argument is to break out a dictionary and point to what is says as though the dictionary was written by God.
Law is a bit like a navigable stream. It flows and you need to know how to paddle to get around the rocks and under stupid cables with posted signs on them.
Walker, consideration of the logical, but absurd and unsettling consequences of a particular outcome is a ‘red herring’?
Please, put my mind to ease by explaining why if Phil Brown and the AG are successful in arguing that recreational travel alone is sufficient to render a wetland a public highway in New York, why I wouldn’t be entitled to take my airboat across any marshy wildlife refuge as long as my route connected two public access points.
Solidago, where are you going to legally put your airboat in to get to Shingle Shanty?
Walker, the law that applies to this property owner and these wetlands has to apply to all property owners and all wetlands in New York. Using the AGs reasoning, any wetland stretching between two roads would be considered a public recreational highway, open to use by any recreational watercraft.
Fair enough, and when motorized access actually creates a problem somewhere then it can be dealt with one way or another. But poring over local maps I’m not seeing lots of places where this would be an issue. Can you name any?
Yeah Walker, I have 340+ acres that is surrounded on 2 sides by a stream and off the stream are numerous drainages that lead further back into my property. During high water it’s possible to motor well into my land, right over fences in some cases. In summer you could canoe it. There is no possible way you can argue that it right or part of a travel path. But, like so many other cases, the argument could be made that it’s navigable. It’s only navigable if your personal self interest surmounts the concept of private property. If we’re going to take that route comrade, then we may as well do away with the concept of property altogether.
I’m 100% sure the State will win this case. I only hope there is some protections offered for adjacent landowners from the inevitable lawsuits this will open them to.
Let’s enter the world of absurd property rights.
Let’s say there is a flood and you are trapped in your house with the water rising. You take down your canoe from the attic and paddle to higher ground.
Next thing you know is you are being sued by one neighbor for traveling over their private property and another is suing you for landing on their private property.
Absurd? Yes.
The issue isn’t private property. The issue is meanness and the never ending urge to sue and make a buck.
Bret, your example doesn’t cut it. The legal definition of “navigable” says you’ve got to be able to paddle from one public access point to another public access point, and at normal water levels. How about a real example?
John, yes the legal definition of NIF is at the heart of the matter. Here it is:
“According to the Court of Appeals in the seminal case on this subject, a waterway is navigable-in-fact “if it is so far navigable or floatable in its natural state and its ordinary capacity, as to be of public use in the transportation of property (Morgan v. King. 35 N.Y. 454, 458-59; (1866).” “[T]he public claim to such use” the court added,“ought to be liberally supported.”To determine whether a particular stream is navigable-in-fact requires a consideration of the conditions or facts that would make it navigable, i.e., primarily whether the water levels are high enough to support navigation for a reasonable length of time under natural conditions of flow. Also relevant is the extent to which the waterway has obstacles to passage (such as shallows, rapids or waterfalls) and, if so, whether portages are feasible so as to allow passage of vessels for commercial or recreational purposes.”
This is not just whether or not the DEC employee can paddle it on that particular spring day.
Ok, so the bottom line is, can I be outraged or not? I can’t figure it out, and if I can’t be outraged, I want another abortion post.
oa, the courts will sort it out.
The DEC is just like with most Adirondack environmental groups, public recreational access always trumps environmental protection.
“The DEC is just like with most Adirondack environmental groups, public recreational access always trumps environmental protection.”
How is the environment being harmed here?
Can you give some examples of the enviro fighting for more public access and the anti-enviros fighting for less access?
Private property: is it so wrong? This is America. Private property is a fact of life. Deal with it. There are plenty of other places to canoe, kayak, and make yourself into a self-absorbed rock star in your own mind.
Uh, Marty, this IS America, where our laws are derived from English common law. That’s how old and how basic this right is. You deal with it.
SpendLessTimeOnlineThanPaul, This is obvious. Not letting folks canoe through these parcels is clearly a better way to protect sensitive parcels than to allow recreational access.
“Can you give some examples of the enviro fighting for more public access and the anti-enviros fighting for less access?
This case is clearly one example. Although I never said anything about “anti-enviros” fighting for less whatever they are? The land owners certainly are. I would call them true “enviros”in this case.
The public doesn’t get to stomp on it if they win.
“make a buck”
Pete, what are you talking about? No one is making any money here are they? This is pretty expensive I would imagine.
Walker, my example is entirely germane to this subject. The fact is that any more erosion of property rights affects all private property owners. Believe it or not, people don’t care about the definition of “navigable”. There are public access points along the stream I mentioned. Do you really think people will stick strictly to the stream if they see and interesting area to go into? If this case is won by the State it will just create more and more problems for landowners, the case will be viewed as permission to violate posted signs, etc.
Bret, you can’t “erode” a right that never existed. And people don’t care about the difference between Wild Forest and Wilderness either, but when they get a ticket for riding a snowmobile in a Wilderness area, they learn. And if people view this case as permission to violate posted signs, that’s at least partly the fault of those who put up posted signs they had no right to put up.
And you know, Bret, this really isn’t about what you or I think is a good outcome, it’s about the law. You think what the property owners have been getting away with for all this time is good, while I think it’s bad. So what?
Meanwhile, I’d still be interested in real world examples: places where you can paddle from one public access point to another public access point through private land. The middle branch of the St. Regis River is one such. How about other examples?
“that’s at least partly the fault of those who put up posted signs they had no right to put up.”
Walker, what are you saying that a private landowner cannot put up a sign on his property? What about the 1st amendment?
“Meanwhile, I’d still be interested in real world examples: places where you can paddle from one public access point to another public access point through private land.”
Walker these are all over the place. Just pick any river that has at least 2 pubic access points separated by private land. You don’t have to go to some remote part of the St. Regis. Name me river and I bet it fits this. I will give you some examples. The Saranac River in many many places. The Raquette river in many many places. etc…..
Paul: “The state has also filed a formal complaint against the property owners, arguing that the posted signs and a cable across the river constitute a ‘public nuisance.'” I dunno, would they still have filed a complaint without the cable? Can you put up Posted signs where you don’t have a right to, claiming First Amendment rights? Interesting question. Great idea, though– post an area of state land in the hopes of scaring off other hunters!
And I think if you look into it, most of your examples are already legal paddling: a single landowner would have to own both sides of the river to have any hope of establishing a right to exclude others. Take the Raquette from Simon Pond to the Crusher– it’s all private land, but it’s open to the public. Are there stretches of the Saranac that you can’t currently paddle? I guess the North Branch might have at least one, but it’s not clear that this would open anything up.
Walker, As I understand it the DEC had drafted a list of some 50 rivers in the Adirondacks alone that would be effected by this particular common law. At the time they were pushing for a statutory law defining (or I guess re-defining) this navigation law. There must be some or why all the fuss? Remember this is a statewide issue not an Adirondack issue.
As for posting, yes I assume the cable was the nuisance. The owners have a pretty good argument against that. It hasn’t stopped paddlers from getting through has it? From the photos I have seen you don’t even need to duck.
Is it also illegal for a landowner to build a bridge to connect one side of the river to the other? Is that also a nuisance?
If the case is won by the defendants the landowners will have to put up posters all along the river on both sides if they want to prevent the kind of trespass described by the person who was lounging at Mud Pond.
“Can you put up Posted signs where you don’t have a right to, claiming First Amendment rights? Interesting question. Great idea, though– post an area of state land in the hopes of scaring off other hunters!”
This is their private land, there I would have to think that if there isn’t a zoning rule against the size or type of sign they can probably post whatever they want. It is their land right?
I don’t think you can post state land. Phil Brown had a story at the Almanack recently about an illegal ski trail and signs on state land. The signs are already gone.
Actually, I forgot– private land that borders public waterways is almost always posted. The difference with the Shingle Shanty posting is that they were posting the water itself. I’ve seen the same thing on the Beaver River below Lake Lila.
And yes, I’m sure there are a bunch of rivers affected, though in my neck of the woods I can’t think of many.
The bridge question is very interesting. There’s a bridge across the Stony Creek at the bottom of Stony Creek Ponds. It’s always been a public waterway, and you can usually paddle under the bridge, no problem. But I’ve seen it in high water when you can’t get under it, and the bridge is posted. Could I have thumbed my nose at the posted signs and crossed?
This gets me thinking of Lake Flower, part of the Saranac River. There are narrows at several points where it’s private land on both sides. Are you Private Property Rights advocates saying that if I bought land on both sides directly opposite each other, I should be able to shut down boating on “my” stretch of river? If not, why not?
Given the history of logging on the Saranac it is most likely a NIF river. The whole point is that maybe this small brook is not. That is the question for the court. Mere navigability (in the past) has not been sufficient to render a water body NIF. That could change with this case. That is why these stories were written. It was done to force the issue.
Many bridges impact navigation. On a large commercially valuable river you might have a good case if you are blocked.
So private property and the entire concept of private property is myth Walker? If someone can force a canoe down a crick and the do a short portage to another drainage and then reach another public access point then the whole of the property along the waterway is open? Bull. And that’s exactly what this type of thing brings.
I’m not sure whether it is more comical or disturbing that the AG claims that putting a camera on one’s own property constitutes an unlawful ‘intimidation tactic.’ A gun pointed in someone’s direction is intimidating. A camera? Rhetoric that rises to this level does not bolster his credibility.
I’d also like to hear the AG provide an example of when anyone was stopped and harassed (“The public has a right to travel and enjoy this beautiful waterway without being stopped or harassed,” said Attorney General Schneiderman.) If someone had been stopped and harassed, I’m sure Phil would have let us know about it in a half dozen articles. Characterizations that strain credulity are bad enough, but I think the suggestion that paddlers have been stopped and harassed might cross a line.
I have always regarded suing someone or even threatening to sue as a form of harassment. Especially if they got lots of money and you don’t.
“I’m not sure whether it is more comical or disturbing that the AG claims that putting a camera on one’s own property constitutes an unlawful ‘intimidation tactic.”
Don’t we have cameras all over the place these days? The AG is going to be busy going after all the private, state, town, and federal cameras we have out there watching us!
Yes, Bret, the entire concept of private property is a myth, and it will soon be illegal to lock your front door, comrade!
Look, I’ll say it again– the law this is based on predates the founding of the nation. Private property is alive and well, but the rights of the property owner do not include the right to exclude people from waterways which provide passage from one public access point to another.
As for the cameras, if you put up a camera pointed at a public sidewalk along with a sign saying that anyone who trespasses on it will be prosecuted, I don’t think it’s entirely unreasonable to call that intimidating. It’s all about context.
Walker, I find it highly doubtful that either you or Pete will change your tune if the courts conclusively determine that this is indeed private property, as it has been considered for well over a century. Now if you folks think that private property should be voluntarily offered up for public use, why don’t you invite the public to use yours?
“Private property is alive and well, but the rights of the property owner do not include the right to exclude people from waterways which provide passage from one public access point to another.”
Walker read the common law. Like others you want to dissect out the parts that fit this particular waterway and forget the rest. There are other important questions for the court. I doubt this common law “that predates the nation” contemplated a guy canoeing up a small brook just for fun. Maybe, but that is a question for the court.
Why has the bill aimed at codifying this law not gotten any traction? The Moose River Case maybe but my guess is that there is quite a bit of real dispute amongst all the legal experts on this issue. Otherwise a law would already be on the books. Legal experts on the property rights side only need to weigh in when there is an issue raised, like now.
Solidago, if the court rules against access I will be disappointed, but I won’t argue against it (well, unless, of course, the ruling appears egregiously wrongheaded… he hedged). How about you, if it goes the other way?
And if I was fortunate enough to own a liquid public thoroughfare, I’d be happy to invite others to share it. Let’s not forget, we’re not talking about someone’s back yard– this is a 15,000 acre parcel owned by an association. And let’s not forget, too, that there are thousands of folks who own shore frontage on public waterways, and who nevertheless manage to enjoy their shared shoreline, despite the terribly offensive presence of other humans. I have paddled past many such, and some have even deigned to chat with me. Noblesse oblige!
And Paul, I have no idea whether the common law of England contemplated a guy canoeing up a small brook just for fun, but it’s notable that it didn’t exclude recreational use– after all, the little blighters must have gotten in the way of those all-important money making boats– they could have outlawed frivolous paddling. And if commerce is to be the test, then the livelihood of outfitters provides a modern-day cash-based reason to extend the law to smaller water bodies than would formerly have qualified.
Anyway, all of our opinions are just so much hot air! The courts will decide.
Frankly, Scarlet, I don’t give a dam (pun intended) about English Common Law.
We fought two wars against those creeps and we still want to look up to them to show us riff raff how to run this country?
Well, Pete, our sacred Founding Fathers made English common law the basis for our common law, so I guess you’re over-ruled!
Well, actually if you study up on things the Founders referred to they went back far further than English Common Law to people like Cicero and Natural Law. But who wants to worry about that boring stuff. The important thing is that the environmental lobby has the clout to get their own way. That’s what really matters. 100 plus years or private ownership and responsibility don’t mean squat and that’s a fact!
Bret, you want to take this all the way back to Cicero, but you also think that the paddlers rights will be created from scratch as soon as the ink is dry on the decision? Looks to me like the owners have been enjoying property “rights” that really didn’t exist, and it’s high time they stopped!
No, I think people will be given an inch and take a mile, just as always happens.
Too bad no one will likely see this: I just looked at the Atty General’s answer to the suit, and it contained this little bomb:
“In December 2007, Friends of Thayer Lake took title to the parcel (over which the suit is being contested)… The recorded deed states that the public has the right to navigate the surface waterway of Lilypad Pond, Mud Pond, the outlet leading from Mud Pond, and the portion of Shingle Shanty Stream before it flows onto State land…” (I have simplified the text a bit for easier reading. The original is at http://blog.timesunion.com/adirondacks/files/2011/02/NYS-Motion.pdf)
This really ought to be Game Over.