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Court of Appeals sends back Adirondack paddler case

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Court of Appeals sends back Adirondack paddler case

The state's highest court has sent an Adirondack paddlers' rights case back to a trial-level court t
Court of Appeals sends back Adirondack paddler case
Adirondack Explorer editor Phil Brown

The state's highest court has sent an Adirondack paddlers' rights case back to a trial-level court to resolve facts about whether the remote stream is navigable under state law.

“The parties have presented conflicting or inconclusive evidence with regard to a number of material facts and the inferences they wish to draw from those facts,” the Court of Appeals wrote in a six-page decision.

The Friends of Thayer Park and the Brandreth Park Association as landowners had sued Adirondack Explorer editor Phil Brown after he paddled a section of the Lila Traverse through their private land in northern Hamilton County for an article in 2009, arguing that he was trespassing. Brown and the Explorer argued that the stream was navigable, and therefore open to the public as a matter of law. The state Department of Environmental Conservation, which manages recreational uses in the Adirondacks, sided with Brown.

State Supreme Court Judge Richard Aulisi in Fulton County found in Brown’s favor, and the mid-level Appellate Division then sided with him, but in a 3-2 decision that allowed the case to be brought to the Court of Appeals.

The court heard oral arguments March 24 in which the parties sought a ruling based on state law. Tuesday’s decision means the court feels the factual issues concerning the stream’s history of navigational use must be resolved first.

“We’re disappointed that the case is not over, but we remain hopeful that we’ll prevail in the end,” Brown said in an email.

Dennis J. Phillips, the Glens Falls attorney who represented the landowners, did not immediately respond to a request for comment.

The court found unanimously that while both sides sought a ruling based on state law that treats a navigable stream as a “public highway,” “a waterway’s navigability is a highly fact-specific determination that cannot always be resolved as a matter of law.”

The judges said there is “conflicting or inconclusive evidence” regarding whether Shingle Shanty Brook has historical or prospective commercial use, the waterway’s historic accessibility to the public, the relative ease of passage by canoe, the volume of historical travel and the volume of prospective commercial or recreational use.

The judges concluded that lower courts had been troubled by the factual disagreements, though both parties sought to have a decision based on the law.

Shingle Shanty Brook was surrounded by thousands of acres of private land until 1998, when the state acquired what is now the William C. Whitney Wilderness Area, and opened it to the public. The Lila Traverse allows canoeists to paddle between two publicly owned lakes. The DEC built a 0.8-mile carry that lets people bypass the private lands, but Brown argued that the stream was still open to public use.

The stream in question crosses a corner of a tract owned by descendants of Benjamin Brandreth, who bought it from the state in 1851 as one of the first private preserves in the Adirondacks. The owners say allowing public access could, among other things, interfere with biological research which is done on the 12,500-acre property.

Reach Gazette reporter Stephen Williams at 395-3086, [email protected] or @gazettesteve on Twitter.

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