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RIGHT TO PADDLE

Ruling supports paddlers’ right to cross private land in Adirondacks

Tuesday, February 26, 2013
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Adirondack Explorer Editor Phil Brown paddles down near the confluence of Shingle Shanty Brook and Mud Pond Outlet during his trip in May 2009.
Adirondack Explorer Editor Phil Brown paddles down near the confluence of Shingle Shanty Brook and Mud Pond Outlet during his trip in May 2009.

— The public has the right to canoe along an Adirondack waterway even if the path takes them through private property, a judge ruled this week.

State Supreme Court Justice Richard T. Aulisi, in a decision issued Monday, ruled that the Mud Pond waterway is “navigable in fact” and ordered property owners to stop posting the passage and to cease prosecuting people who take advantage of their right of navigation.

Property owners filed a lawsuit in 2010 against Adirondack Explorer editor Phil Brown after he penned a first-person account of his canoe trip between Little Tupper Lake and Lake Lila in the state’s Whitney Wilderness.

Instead of using a state-built portage that avoids the private property, Brown continued onward past the posted signs, cables and cameras erected by property owners, traveled through the narrow channel and then titled his account of the trip “Testing the legal waters.”

The property owners, Friends of Thayer Lake LLC and Brandreth Park Association, filed suit in Hamilton County Supreme Court and charged that Brown had disregarded posted signs and trespassed on their property.

After research, a site visit and a paddling expedition both upstream and downstream in 2010, staff from the state Department of Environmental Conservation determined the water was “navigable in fact” and therefore subject to an easement for public navigation.

The state Attorney General’s Office then intervened, arguing on behalf of the public’s right to traverse the waterway.

In court papers, the state contended that 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.”

State Attorney General Eric Schneiderman, in a statement provided by spokeswoman Michelle Hook, said, “We are very pleased with the court’s ruling in this case. Today’s ruling affirmed the waters of New York belong to the people of New York. We will continue to use this office to defend the public’s right to enjoy the full use of the navigable waters of our state without being stopped or harassed.”

Efforts to reach the property owners’ attorney, Dennis J. Phillips of Glens Falls, were unsuccessful late Tuesday.

Brown on Tuesday said the decision is a victory for paddlers: “We were fighting for the principle that the public has the right to paddle on navigable waterways that pass through private land.”

He said the court victory doesn’t necessarily change similar situations involving other waters. He said there are posted signs on a passage of the Beaver River between Lake Lila and Stillwater Reservoir and on the east branch of the St. Regis River in the northern Adirondacks.

“Obviously, this case, or decision, only strengthens a paddler’s case,” Brown said.

Brown’s attorney, John W. Caffry of Glens Falls, said the decision could resonate beyond Mud Pond.

“I certainly think it would dissuade other property owners who might be thinking about trying to close one off,” he said.

An important aspect of the decision, Caffry said, is that it takes into account the idea that recreational use, not just commercial use like logging, is a legitimate use of waterways. “The judge found that there was lots of evidence of recreational use and potential for transporting goods,” he said.

Though paddlers can take their canoes through the private property, it doesn’t give them additional rights, he said. “The public right of navigation in New York is limited to navigation. It doesn’t include camping; it doesn’t include fishing. You’re allowed to pass through on the private property; you can portage where it’s necessary.”

 
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