By Matthew Sturdevant
Published: March 15, 2011
"Posted: Private Property" signs dangle from a steel cable stretched across a marshy waterway that slices through thick brush at the center of New York's Adirondack State Park.
Phil Brown paddled his canoe up to the cable, slipped past it, and kept going. He crossed two ponds and floated down a section on Shingle Shanty Brook—areas surrounded by private land—before returning to a public preserve. Brown trekked here in May 2009 for an article in Adirondack Explorer, a regional magazine that he oversees as editor.
Brown could have stayed in public lands by portaging three-quarters of a mile, but he wanted to show that his route from Little Tupper Lake to Lake Lila is "navigable in fact" and should be open to the public under the common-law definition of that term.
The landowners, however, disagree. They slapped him with a lawsuit for trespassing. A court filing in Hamilton County—New York's least populated county with a mere three people per square mile—tees up a trial starting in May. The case has been moved to Johnstown, N.Y., where a Fulton County judge will decide if the public has a right to canoe or kayak this stretch of water, which is about 45 miles southwest of Lake Placid. The case also has implications, possibly, for other wilderness areas in New York.
"It's not like the Hudson River… it's basically a mountain-pond-and-brook complex," said Dennis J. Phillips, an attorney for Friends of Thayer Lake and the Brandreth Park Association. The friends group owns the land. The Brandreth association owns rights to recreation, such as fishing, hunting and, maybe paddling, too.
Attorneys for New York's Department of Environmental Conservation are trying to intervene in the case on behalf of paddlers and the public.
"The public has a right to travel and enjoy this beautiful waterway without being stopped or harassed," Attorney General Eric Schneiderman said. Schneiderman is seeking a court order forcing the landowners to take down the steel cable, the "Posted" signs and cameras mounted in the woods.
The six-million-acre Adirondack State Park is an anomaly, as parks go, in that it's actually a patchwork of public and private land. Both Lake Lila and Little Tupper Lake have public boat launches, and New York owns a swath of forest and marsh connecting the two. Part of the public tract is 14,700 acres the state bought in 1997 for $17.1 million from a Whitney estate handed down by William C. Whitney, a U.S. Navy Secretary during President Grover Cleveland's administration and a member of the family whose name adorns buildings at Yale University and a New York art museum.
The parties disagree on a couple of key points.
Is a waterway passing over private land only accessible to the public if it was used historically for some commercial use, such as floating timber logs? This waterway wasn't used for commercial use, but Brown, his lawyers and New York state say that doesn't matter because modern-day paddlers can demonstrate navigability.
Are portages, rocky shallows and beaver dams obstacles that keep a waterway from being navigable? The property owners think so.
New York still has miles and miles of rivers, ponds and lakes open to paddlers, but this lawsuit may set a precedent for access to other remote constellations of ponds and wetlands across public and private land.
"It's potentially far-reaching," Brown's attorney, John W. Caffry, said of the case.