ADIRONDACKS -- A much-litigated dispute about on what circumstances paddlers have the right to canoe or kayak on streams surrounded by private land is headed to trial on Monday in Fulton County.
The case of The Friends of Thayer Park and the Brandreth Park Association versus Phil Brown and the Adirondack Explorer magazine will have a bench trial before state Supreme Court Justice Richard Aulisi starting Monday morning in Johnstown. Attorneys have set aside three weeks for arguments and testimony.
The plaintiffs, as the owners of the Brandreth Park private preserve in northern Hamilton County in the central Adirondacks, sued Brown and the magazine for trespassing after Brown canoed a section of stream through their land in 2009, and subsequently wrote an article about it.
Brown and the magazine contend the section of Shingle Shanty Brook he used is navigable, which would mean by law the public can use it. Brandreth's owners contend the stream has no history of navigable use, and their private property rights were violated.
During lengthy pretrial proceedings after the suit was filed in 2010, the state Department of Environmental Conservation sided with Brown on the stream's navigability and the public's right to access it, and lower courts sided with Brown in decisions that the landowners appealed.
But the Court of Appeals, the state's highest court, in a 2016 decision sent the case back to the original judge -- Aulisi -- for a trial to resolve facts about whether the remote stream is actually 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 that decision.
Those facts are now up to Aulisi to determine, though whatever decision he makes after the trial would again be subject to appeal.
Aulisi is the same judge who heard initial proceedings in the case, and in 2013 found in Brown’s favor following pre-trial proceedings. The mid-level Appellate Division then sided with him when the landowners appealed, but in a split 3-2 decision. The split decision allowed the case to be brought before the Court of Appeals, which then issued its ruling saying the factors should be decided by a trial.
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.”
Part of the testimony is expected to focus on the circumstances of the stream's use for recreation or commercial activity in the 1800s, as well as its current potential use by recreational paddlers.
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 state established the Lila Traverse, which 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.
Brown this month is retiring after 19 years as editor of the Explorer, a bi-monthly magazine that covers Adirondack Park environmental issues and outdoor recreational activities.