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Phil Brown paddles near the confluence of Shingle Shanty Brook and the Mud Pond outlet in May 2009. Photo: Susan Bibeau/Adirondack Explorer, used by permission
Phil Brown paddles near the confluence of Shingle Shanty Brook and the Mud Pond outlet in May 2009. Photo: Susan Bibeau/Adirondack Explorer, used by permission

Story 2.0: Paddlers crack open more routes in Adks

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This week, a state Supreme Court judge ruled that a back country canoe route in the wilds of Hamilton County is "navigable in fact." It was another victory for paddlers, who have been fighting for decades to win more access to rivers.

This latest ruling followed a lawsuit filed against journalist and outdoorsman Phil Brown, who paddled a remote stretch of Shingle Shanty Brook. To make the journey, Brown made a brief carry or "portage" over private land.

He was sued by private landowners, who argued that he trespassed over land that had been closed to the public for generations. The landowners involved in bringing the suit declined to comment about the ruling.

Brian Mann sat down to talk with Phil Brown about the significance of the decision and we'll hear part of our 2010 report looking at the long-running legal battle over paddler access.

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Brian Mann
Adirondack Bureau Chief

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This story has been corrected in three places.  It is updated to show that Judson Potter is the former head of the Brandreth Park Association, also to correct the transcript, indicating that Potter's great grandfather, not his grandfather, built a camp on the property in 1918.  Finally, a reference to this case enhancing access rights for anglers has been deleted.  In the judge's ruling, he indicated that the landowners can continue to prosecute "trespassers who fish" on Brandreth Park property.

Journalist and paddler Phil Brown with the Adirondack Explorer
Journalist and paddler Phil Brown with the Adirondack Explorer
PB: It's always a little uncomfortable to be the center of the story, when you're a journalist. In this case I didn't set out to get sued, I set out to cover a story and write about the whole issue of navigation rights, and that's what I did.

BPM: You paddled this route, which the landowners had posted, they had asserted for many years that anyone traveling this route would be trespassing. What led you as a reporter to make that decision, that this was worth doing, despite their claims and despite the controversy involved?

PB: Well, we had been interested in the navigation rights issue for some time. We had published a number of stories about it, and from all the information I gathered from talking to people, looking at maps and so forth, it seemed to me that this was a waterway that is open to the public under the common law. I basically went there to check it out for myself, and indeed I found it to be navigable, and the judge agreed.

BPM: he agreed with one observation, he said, 'it gives me pause,' or 'it gives this court pause' that you have to go over land for a brief period, there is a portage or a carry route that you have to take around a dam. What do you think about that, when you hear landowners saying this makes us unhappy, that these paddlers or fisherman want to be traveling along these routes, and they want to spend some time on our property. Do you have any sympathy for that point of view, that sense of private property?

A no-trespassing sign posted at Shingle Shanty Brook. Photo: Brian Mann
A no-trespassing sign posted at Shingle Shanty Brook. Photo: Brian Mann
JB: I can understand why they wouldn't want the public walking on their land, but the state court of appeals has said portaging around rapids is part of the common law, it's a right the public has. And it's an understandable right, because you can imagine having a long waterway, that can go on for miles and miles, and you have a small stretch of rapids. Should that small stretch of rapids prevent the public from using the entire waterway?

BPM: this is the latest in a series of victories for paddlers. What do you see as a paddler and as a journalist in terms of the broader trend in terms of access and opening more rivers in the Adirondacks to this kind of recreation?

It seemed to me that this was a waterway that is open to the public under the common law... Indeed I found it to be navigable, and the judge agreed.
JB: Well, this case reaffirms the public's right to paddle on rivers that flow through private land. Essentially it doesn't change a lot, it reaffirms the existing law, that's our take on it. How it will be applied to other rivers and streams, I think, remains to be seen.

***

In 2011, Brian Mann reported on paddlers' legal battles for more access to private land. In that story, he went out on Shingle Shanty himself. A portion of the story appears below:

Paddlers and many legal experts say navigable rivers that cross private land in New York were opened unambiguously to canoe and kayak traffic by a landmark decision in 1998 involving the Adirondack League Club.

In that decision, the state's highest court rejected the landowners' argument that recreation and sport paddling aren't valid reasons to use rivers that pass through private areas.

"I understand their desire not to have paddlers on their land, however the law has spoken and they may not have a choice," said Ross Whaley of the Adirondack Landowner's Association, who's researched the ALC decision.

"It seems that the case law over time has made it clear that navigable in fact streams can be navigated by paddlers. This stems from English common law, which was the law of the state of New York prior to any legislative law. And the Adirondack League case settled that where the court said that recreational passage is allowed under the common law," Whaley said.

That view is shared by John McDonald, head of the Ausable Chasm Company and an attorney. He doesn't want paddlers passing through his land but says the ALC decision was definitive.

"Legally they do have the right to go through the river. That case also decided was what paddlers could do. They could portage and they have the right to stop."

That means that paddlers have the legal right to get out of their boats, scout for obstacles, and even portage around them when necessary. But here in the Adirondacks, some landowners are still aggressively posting rivers that appear to be navigable.

Shingle Shanty Brook is one of those contested locations.

By paddling through the posted water and making a short portage across private land, boaters are able to avoid an overland carry that's more than a half a mile long.

Based on the precedence set in the league club decision, the group I'm with decides to push on, ignoring the signs—and the cable stretched across Shingle Shanty Brook. Phil Brown and a growing number of other paddlers have made this same trip.

"I mean it's just a beautiful winding stream, marshy grasses, the day we did it there were puffy clods, sun was shining, big sky—it was just gorgeous. Any paddler would rather do that than lug his canoe through the woods for a mile."

But Judson Potter, former head of the Brandreth Park Association which owns this land, is convinced that all these paddlers are breaking the law.

"There's a camp built by my great-grandfather in 1918. It's a very important part of my family's history and we very actively regularly use the area and we don't want to be in the situation where there's a conflict between members of our family and members of the public who are going through the area," he said.

Potter has rigged automatic cameras on his land to photograph paddlers who cross the short portage trail. He points to specific details of Shingle Shanty Brook and the sometimes-complex language of the Adirondack League Club decision that he thinks means this route should remain closed.

"Very simply spoken, nowhere in this ALC case does it say recreational use alone establishes navigability in fact. It doesn't say that anywhere on this," said Potter.

Here's what the ALC decision actually says:

"If a river is navigable in fact, it is considered a public highway not withstanding that its banks and bed are in private hands."

And while New York's highest court didn't broaden the definition of proper use of Adirondack rivers, it does say explicitly that "recreational use fits within that description."

John Humbach is a law professor at PACE University in White Plains, NY, who has studied the case law for river navigation rights in the state.

Despite the reservations still raised by some landowners, he says the law is clear.

"If it's obviously clear that a river can be navigated because people are in boats floating down it, then it's almost certainly going to be held to be navigable in fact," Humbach said.

Ross Whaley with the Adirondack Landowners Association says the next step is for the state Department of Environmental Conservation to work with the legislature and with landowners and recreation groups to compile a final list of which North Country rivers are clearly navigable and open to the public.

"My sense is it's going to come to closure in legislation at some point in time—how long that'll take, I don't know," he said.

A preliminary list compiled in 1990 by the DEC included no fewer than 55 Adirondack rivers and stretches of river that should be open to the public. Shingle Shanty Brook was one of the rivers on that list.

Portions of this story first aired in August, 2010. Hear that full story here.

 

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