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Waterway fight

Canoeist vs. landowners lawsuit goes to court

Issue examines access to state’s navigable waters

Saturday, November 17, 2012
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Adirondack Explorer editor Phil Brown.
Adirondack Explorer editor Phil Brown.

— Legal action sparked by a journalist’s canoe trip through private property is pitting landowner rights against New York state’s long-standing public access to navigable waters.

State Supreme Court Justice Richard T. Aulisi heard arguments Friday in the lawsuit property owners lodged against Adirondack Explorer editor Phil Brown.

Brown took a canoe trip in 2009 between Little Tupper Lake and Lake Lila — both part of New York State’s Whitney Wilderness.

But instead of pulling out and carrying his canoe around adjoining property owned by the Brandreth Park Association and Friends of Thayer Lake LLC, Brown decided to keep floating.

It’s clear from Brown’s article, titled “Testing the legal waters,” that he sought an answer on whether or not the public can have access to navigable waters even if they are situated on private property.

The landowners filed suit in Supreme Court in Hamilton County asking for monetary damages and an order barring the public from trespassing on their parcel.

Glens Falls attorney Dennis J. Phillips, who represents the property owners, said a decision allowing public access to private land threatens the whole idea that private property owners are allowed to exclude people from their private domain.

The landowners include descendants of Benjamin Brandreth, who purchased the land in question 161 years ago.

The tiny, meandering waterway is only 2 feet deep in some places, Phillips argued, and shouldn’t count as a “highway for commerce” that’s traditionally kept open for public access in the state.

The state Attorney General’s Office intervened in the case to defend against what the state sees as an attempt by the landowners to “extinguish the right of the public to travel on a navigable waterway.”

Assistant Attorney General Kevin P. Donovan said case law requires only “proof of utility for travel” in order to consider the waterway navigable, and said Brandreth and his descendants never owned the right of public recreation considered “so important the state can not deed it away.”

“Navigable waters are public highways or easements held in trust for the public by the state, regardless of whether the waters run through privately owned land,” Donovan wrote in court papers.

Brown’s attorney, John W. Caffry, argued case law that started out with a heavy focus on maintaining commerce — logging in the Adirondacks — has evolved over the years to include recreational use as an important element in the argument.

Caffry said his reading of case law suggests if the waterway is practical for trade or travel, then it can be considered open for navigation.

Various activities over the years, including fur trapping and canoeing, provide evidence that the waterway could be used for trade and travel, Caffry said.

Colin Bradford, president of the Brandreth Park Association, said the family has taken pride maintaining the land since the mid-1800s while allowing scientists to do research there on occasion.

They pay taxes on the land, maintain roadways and outbuildings and consider themselves stewards of the “remote and untrampled” wilderness area, Bradford said.

A decision in the favor of the property owners would allow the family to continue that stewardship, Bradford said.

Brown, who isn’t commenting on the case while it’s in the courts, explained what he’s fighting for in his article — the right of the public to enjoy the wonders of nature and, specifically, one of the “best wilderness canoe routes in the Northeast.”

Despite being attacked by black flies, Brown on his trip encountered red-winged blackbirds, loons, white-throated sparrows, a hawk and a view of Moose Pond Mountain while being “embraced by nature.”

Lawyers are asking Aulisi for a summary judgment ruling. Aulisi reserved decision following oral arguments. It was unclear Friday when a decision will be rendered.

 
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