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Phil Brown paddled a disputed section of Shingle Shanty Brook in May 2009. He is shown here on Rock Pond Outlet. (Photo/Susan Bibeau/Adirondack Explorer newsmagazine)

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Have canoe, will travel

Tuesday, March 05, 2013 - Updated: 3:51 PM

By CRISTINE MEIXNER

Editor

JOHNSTOWN - The legal tussle over canoeing two miles of a waterway through privately owned lands in the Town of Long Lake has been resolved. A judge has found the route is navigable-in-fact and opened it to the canoeing and kayaking public.

The legal journey started when Adirondack Explorer newsmagazine Editor Phil Brown paddled from one parcel of public land to another in the William C. Whitney Wilderness Area in May 2009 using Mud Pond, Mud Pond Outlet and a section of Shingle Shanty Brook.

Instead of using a carry of about three-quarters of a mile around the private land, Brown paddled past ‘No Trespassing’ signs and through property owned by Friends of Thayer Lake, in which Brandreth Park Association has an interest, and published an article about his trip. He was sued for trespassing in 2010.

"I didn’t deliberately provoke a lawsuit," Brown says. "I didn’t set out to get sued. I believed I had the right to canoe the waterway, and so I did. My aim was to write about the issue of navigation rights, using the Mud Pond-Shingle Shanty stretch as an example of a disputed waterway."

Thanks to the lawsuit a court has determined the waterway is “navigable-in-fact,” even though Brown had to portage 500 feet around some rapids at the Mud Pond Outlet.

His defense was pinned on a 1998 ruling by the New York State Court of Appeals that says in part, “… of paramount concern is the capacity of the river for transport, whether for trade or travel…” and “… recreational use should be part of the navigability analysis.”

Under the law, a navigable waterway may be used as a public highway for travel, regardless of whether it flows over public or private land.

THE POSITIONS

State Supreme Court Justice Richard T. Aulisi heard arguments in November 2012 in the Fulton County Courthouse.

Attorney Dennis Phillips of Glens Falls represented Friends of Thayer Lake and Brandreth Park Association. He argued a privately owned waterway is open to the public only if it is useful for commerce, and to find otherwise would violate private property rights. He said the waterway has never been used for commerce.

Attorney John Caffry of Glens Falls represented Brown. He asserted that even if only canoes and kayaks can travel the route it is navigable and constitutes a public highway.

His case was bolstered when New York State Department of Environmental Conservation officials paddled the route and declared it navigable-in-fact. DEC was allowed to join the lawsuit “to defend the public's right to travel on navigable waters in the Adirondack Park,” bringing in Assistant Attorney General Kevin Donovan.

The two parties asked the judge to issue a decision rather than go to trial.

THE RULING

Aulisi heard arguments in November 2012 and ruled in Brown’s favor Feb. 25.

He wrote in part, “The Court of Appeals has made clear that since a river’s practical utility for travel or transport is no longer measured by its capacity for getting materials to market, the recreational use of such river should be part of the navigability analysis.”

The 500-foot portage, Aulisi wrote, “… is considered a very short portage, and the right to navigate ‘carries with it the incidental privilege to make use, when absolutely necessary, of the beds and banks on riparian lands,’” as ruled in Adirondack League Club v. Sierra Club.

Aulisi also issued an injunction ordering Friends of Thayer Lake to desist prosecuting as trespassers those who are simply traveling the waterway and the portage, but noted they are free to continue to post and prosecute trespassers that fish or enter other parts of their property.

     

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