Murky Waters: Case of Paddling Through Private Land Still Not Settled | Environment | Seven Days | Vermont's Independent Voice

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Murky Waters: Case of Paddling Through Private Land Still Not Settled


Published June 24, 2015 at 10:00 a.m.

Phil Brown paddling Shingle Shanty Brook - COURTESY OF SUSAN BIBEAU
  • Courtesy of Susan Bibeau
  • Phil Brown paddling Shingle Shanty Brook

Six years ago, the editor of Adirondack Explorer loaded his gear into a green SpitFire canoe and set off on a two-day traverse through four ponds and five streams. When he got back, Phil Brown wrote a story for the magazine about his trip from Little Tupper Lake to Lake Lila. The narrative described the point at which he paddled through private property, instead of portaging around it on state-owned land. Brown's decision replaced a "mile-long slog" with "an hour or more of great canoeing."

It also landed the journalist in court. The following year, the landowners sued Brown for trespassing.

Brown knew he was pushing a boundary when he set out. He wrote the story — published in August 2009 under the headline "Testing the Legal Waters" — to draw attention to the legal ambiguity surrounding which Adirondack waterways are open to the public.

But he got more than he bargained for in the form of a court case that has been closely watched by paddlers and property owners. In 2010, the landowners sued Brown in the state Supreme Court, where he prevailed. The plaintiffs appealed to the Appellate Division, which also ruled in Brown's favor last January. In March, the landowners again appealed, sending the case to the Court of Appeals — New York's highest court. It won't be argued until later this year or early next.

The Adirondack Park encompasses six million acres of protected land, fewer than half of which are owned by the state. The balance — 3.6 million acres — belongs to private owners, creating a landscape where "there are a lot of interlocking public and private parcels," explained Chris Amato, a former assistant commissioner for natural resources at New York's Department of Environmental Conservation.

Common law in New York holds that the public has a right to travel on waterways that pass through private property as long as they are "navigable in fact." That right doesn't extend on shore, unless people need to make brief portages.

Brown's case boils down to one question: What does "navigable" mean?

Recounting the epic legal proceedings over a pulled-pork sandwich, Brown was soft-spoken and thoughtful at the Blue Moon Café in Saranac Lake — his town of residence. He doesn't fit the profile of a provocateur. An avid paddler with an athletic build and gray hair, he was doing research for a guidebook of 60 canoe trips when he embarked on his fateful voyage.

Phil Brown with court documents - ALICIA FREESE
  • Alicia Freese
  • Phil Brown with court documents

But Brown has long been perturbed by landowners who post "no trespassing" signs and string cables across streams, many of which he thinks are legally open to the public. As a result of the postings, paddlers have to backtrack or portage around the restricted land. "There's no question you can do that," Brown said, referring to the hard work of carrying a canoe over land. "But the question, if you're a paddler, is why would you do that?"

David Cilley, who has run St. Regis Canoe Outfitters in Saranac Lake since 1984, has a similar view. Leaning over a large map of the region, he traced off-limits routes with his finger and pointed out "heavily posted areas" near the William C. Whitney Wilderness area, including a route from Rock Pond to Forked Lake and the area around Slim Pond, south of Little Tupper Lake. 

"A hundred years ago you could paddle anywhere here," Cilley said. Then landowners started buying up property and closing it off to the public.

When private property owners post their waterways, it creates a catch-22: "You can't prove that it's navigable unless you paddle it, and you can't paddle it unless it's navigable," reasoned Brown, who researched the case law before he took his canoe trip. By successfully paddling the route, he argued, he proved it to be navigable. A reporter for the Adirondack Explorer, in the odd position of covering his own editor, described the case in a story as "the latest skirmish in a century-and-a-half-old battle between large landowners in the Adirondacks and the paddling ... public."

Brown's employer is a nonprofit, bimonthly magazine that operates out of a former tuberculosis sanatorium in Saranac Lake. Focused on environmental issues and outdoor recreation, the publication is covering Brown's legal fees. It hired John Caffry, a lawyer who won a seminal paddler rights case in 1998, to represent him.

Brown has another key ally in his camp: the state. Both the DEC and New York attorney general Eric Schneiderman intervened and are now defendants in the suit.

On the opposing side is a network of relatives linked by their common ancestor, Benjamin Brandreth, who made a fortune peddling a "vegetable pill" in the 19th century. Marketed as a blood purifier capable of curing many diseases, the once-pervasive pill was even mentioned in Moby-Dick.

Brandreth was rich when he purchased a large tract of land in the Adirondacks in 1851. Today, roughly 100 of his descendants co-own 25,000 acres, which continue to be passed down through generations.

They oversee the property through two entities, Friends of Thayer Lake and the Brandreth Park Association, which brought the suit against Brown. The association's lawyer, Dennis Phillips, spoke for group. "This case is about whether or not the public interest of a recreational canoer is superior to the private interest and the right to exclude," he said. In his view, the navigability doctrine was intended to protect commercial activity, not recreation. In Brandreth's day, commercial activity in the Adirondacks consisted of floating logs downriver to mills and transporting fur pelts to market.

Phillips said his clients have plenty of reason to assert their "constitutional right to exclude" on their property, which they've carefully preserved as "wild country."

The family has already found litter on the property, he claimed, and went on to list other concerns: vandalism, defecation, invasive species brought in on canoes and potential lawsuits from people injured on their property. Landowners are not liable, he acknowledged, but "that doesn't stop people from suing."

After Brown's story appeared, the Brandreths installed motion-sensitive cameras to document other people making the trip. The route, which Brown described as "somewhat arduous," isn't likely to attract crowds. But it does feed into a large loop known as the Lake Lila traverse, and Cilley said he now directs some of his more ambitious and experienced paddlers down it.

Speaking for the family, which he said pays "substantial taxes" on the property, Phillips said such activity amounts to the public "getting a free ride on our backs."

Caffry countered that the Brandreths "are basically trying to privatize a public right." He disputed the notion that waterways have to have a commercial function to be considered open to the public.

Former state official Amato, who now works at the environmental-law nonprofit Earthjustice, argued that there isn't a clear division between commerce and recreation, especially in an area that abounds with canoe outfitters and guides. "The only 'commerce' that occurs on most of the rivers in the Adirondacks is recreational tourism," he noted.

The Appellate Division ruled three to two in Brown's favor. The majority wrote, "Contrary to plaintiffs' argument, the fact that the Waterway's use has been almost exclusively private and recreational rather than commercial does not preclude a determination that it's navigable-in-fact." What matters, they continued, is "the stream's practical utility for 'trade or travel.'"

But one particular footnote in their decision has given Phillips reason to hope the case could still turn in favor of his clients. Only after the state acquired land adjacent to the Brandreth property did the waterways in question become accessible to the public — before, people would have had to trespass in order to reach them. In light of this, the majority wrote, "We share the dissent's concern that the application of the rule in cases such as this may destabilize long-established expectations as the nature of private ownership."

That line stuck out to Amato, too. "I found that footnote to be extremely troubling because the whole concept that people who own property are entitled to never have anything disturbed doesn't have any foundation in law at all." he said. "If you carry that rationale to its logical conclusion, then any type of environmental regulation is invalid."

Both sides agree that the case could have broader implications. If Brown wins, the decision could open up more waterways to paddlers. But Caffry cautioned against overstating the significance, noting that "no two rivers are exactly alike." That means navigability must be assessed on a case-by-case basis.

At the least, Brown hopes a favorable ruling will "make it less likely that a landowner would sue" a paddler. For now, though, neither he nor the magazine's other writers are taking any chances navigating posted rivers. Said Brown: "I think it's important to let this play out first."