By Matthew Sturdevant
Two remote ponds and part of a brook in New York's Adirondack wilderness might have been off limits to paddlers and the general public had a state Supreme Court judge not ruled in Phil Brown's favor.
At the heart of the case is the contentious battle between landowners and recreational boaters about who gets to use a waterway. It also clarified that a portage around rapids or rock ledges doesn't necessarily make a waterway off limits in New York.
Brown paddled his canoe down an alternate route to avoid a portage in the state-owned William C. Whitney Wildness Area, which is within the Adirondacks and about a 140-mile drive northwest of Albany, N.Y. The editor of Adirondack Explorer and author of the guidebook on paddling the Adirondack’s flatwater routes, Brown paddled Lilypad and Mud Ponds, and the Mud Pond outlet into Shingle Shanty Brook, all of which cut through private land marked by "No Trespassing" signs and a steel cable across the brook. The landowners—Friends of Thayer Lake LLC and the Brandreth Park Association—sued in 2010 after Brown wrote about his journey that in his regional magazine. (Read more on the controversy HERE.)
Judge Richard T. Aulisi ruled on Feb. 25 that the waterways Brown traversed are navigable and open to the public. Brown's attorney, John W. Caffry, said the case is significant because it's the first time in decades a court has ruled on navigability—a legal term involving the historic use of the waterway and whether a boater may float it, so long as there is public access to it. The case also is significant because evidence of navigation was the historic use by small boats—canoes and Adirondack guideboats—rather than navigation by a barge or larger vessel, Caffry said.
Whether that will help canoeists and kayakers in the future to prove the navigability of narrow creeks and brooks remains to be seen.
"This is the kind of ruling we would like to see in other states," said Kevin Colburn, national stewardship director for American Whitewater. Colburn was recently in North Carolina advocating in court for paddlers right to float the upper Chattooga River, which private landowners have blockaded with cattle guards and razor wire.
The Brown case is important to struggles in other states, even if only as reinforcement of the public trust doctrine, a concept dating to the Roman Empire that waterways are open to the public.
Both the New York attorney general and the state Department of Environmental Conservation intervened in the New York case on Brown's behalf, indicating strong support for public use of even the most remote waterways in the state.
“Today's ruling affirmed the waters of New York belong to the people of New York," New York Attorney General Eric T. Schneiderman said after the judgment. "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."
Historically, New York's remote waters weren't in disputes of this nature during the early 1800s as the public used them for fur trading and logging, said John A. Humbach, a Pace University law professor who wrote an in-depth review of New York court rulings on navigability.
"Up through most of the 1800s, these were waters that were used for commercial and recreational purposes," Humbach said. "In the late 1800s and early 1900s, usage fell off. … Landowners started getting used to the fact that they weren't being used. They got used to the idea of these waterways running through their private preserves."
Colburn, of American Whitewater, said the Brown case is important because not many paddlers have the ability to take on the legal system if confronted with a lawsuit, and the court affirmed the public's right to use the water. However, a new dispute could emerge at almost any other waterway with new evidence and new legal dilemmas.
"There are many more questions than answers in navigability law," Colburn said.