Top Court To Hear Arguments This Week In Paddling Lawsuit

[FloridaFishinFool]

MONDAY, MARCH 21, 2016

Top Court To Hear Arguments This Week In Paddling Lawsuit

by Editorial Staff

 

 

The state’s highest court will hear arguments in Albany this Thursday in a trespassing lawsuit filed against Explorer Editor Phil Brown after he canoed through private land near the William C. Whitney Wilderness.

Several organizations have filed friend-of-the-court briefs in the case, which could have statewide ramifications.

The Adirondack Mountain Club and Environmental Advocates are siding with Brown in arguing for paddler’s rights. The Adirondack Landowners Association, New York Farm Bureau, Empire State Forest Products Association, and Property Rights Foundation of America are siding with the landowners.

The disputed waterway, about two miles long, connects two pieces of the state-owned Whitney Wilderness. Brown paddled it in May 2009 as part of a longer trip from Little Tupper Lake to Lake Lila. He was sued the following year by the Friends of Thayer Lake, the main landowner, and Brandreth Park Association, which holds the recreational rights to the privately owned tract.

Since the waterway is navigable, legally accessible, and useful for travel, Brown maintains that the public has a common-law right to paddle it. The state Department of Environmental Conservation agrees and has joined the case. The landowners contend the waterway is too small and remote to fall under the common-law right of navigation.

State Supreme Court Justice Richard T. Aulisi ruled in Brown’s favor and threw out the lawsuit in February 2013. The Appellate Division of State Supreme Court upheld Aulisi in a 3-2 decision in January 2015. Because two judges dissented, the landowners had an automatic right to appeal to the Court of Appeals, the state’s highest court.

The oral arguments are scheduled to start at noon Thursday. Brown’s attorney, John Caffry, and the state’s attorney, Brian Ginsberg, will have six minutes each to make their cases. The landowners’ attorney, Dennis Phillips, will have twelve minutes. The seven-judge panel is expected to hand down a decision within six weeks.

The court’s summary of the case can be found here.

Photo of Phil Brown paddling Shingle Shanty Brook by Susan Bibeau.

Court Summary:

http://www.adirondackalmanack.com/2016/03/59872.html#comments

[Western-Mass-Bass]

Man, I hope Im reading this right.  He paddled through a stretch of water? And is being sued? This is the stuff we go to court for now?  What a waste of time and money!!   Loosen up people!!!!!

[Cgrinder]

That's actually kind of interesting.

[buzzed bait]

Someone has got to figure out how in the world you stop these ridiculous frivolous lawsuits in the first place, let alone allow them to appeal the court's decision!  

[FloridaFishinFool]

This issue revolves around a right of control by private land owners & Brandreth Park Association, which holds the recreational rights to the privately owned tract.

If they can legally control it, then they can sell access to it in the same way governments charge us citizens to enter in to and use state and national parks.

If these land owners and recreational rights owners win in court, then they can put up toll booths and charge for access to their waterway route. But if they lose, then the public can freely access it in the future.

Once again it appears this issue will boil down to an argument over what is navigable waters or, not.

[buzzed bait]

1 hour ago, FloridaFishinFool said:

This issue revolves around a right of control by private land owners & Brandreth Park Association, which holds the recreational rights to the privately owned tract.

If they can legally control it, then they can sell access to it in the same way governments charge us citizens to enter in to and use state and national parks.

If these land owners and recreational rights owners win in court, then they can put up toll booths and charge for access to their waterway route. But if they lose, then the public can freely access it in the future.

Once again it appears this issue will boil down to an argument over what is navigable waters or, not.

i would imagine this argument right here negates their ability to sell access to it in the future:

 

"The landowners contend the waterway is too small and remote to fall under the common-law right of navigation."

[F14A-B]

More frivolous legal actions.. I will be very surprised if the High court does not uphold the lower court's finding.

[Hurricane]

What a joke...

[Scott F]

23 minutes ago, buzzed bait said:

i would imagine this argument right here negates their ability to sell access to it in the future:

 

"The landowners contend the waterway is too small and remote to fall under the common-law right of navigation."

According to the Supreme Court, size does not matter. If the water is navigable at any time during the year, it falls under the public trust.

http://www.nationalrivers.org/river-fact-or-fiction.html

[IndianaFinesse]

Really?  The guy is being sued for paddling through a waterway?  I can't believe that this is being taken to the states highest court.  It is insane what people are being sued for anymore.  I think America is getting way to sue happy.

[Western-Mass-Bass]

I could see if he was running an old 2 stroke down a water way that had an endangered species or maybe a bald eagle hatchling reserve or something.   But he was paddling a plastic boat to get from one point to another!!!!  Cmon man.....

 

[S. Sass]

15 minutes ago, Centralinfinnesse said:

Really?  The guy is being sued for paddling through a waterway?  I can't believe that this is being taken to the states highest court.  It is insane what people are being sued for anymore.  I think America has been way to sue happy for a long time.

Here I corrected it for you.

All about the $. You can always find a lawyer willing to take a stupid case as long as there is someone willing to pay. And the longer judges take these cases the worse it gets. 

The 17 Dumbest Lawsuits in Recent History  

[Scott F]

Suing to protect the rights of people to use the waterways of our country is far from a frivolous lawsuit. The rivers of this country are supposed to be held in public trust not owned by individuals who try to keep us from using them for fishing and recreation. In Illinois, there are landowners who put up barbed wire across streams to keep paddlers and fishermen off the water. Individuals are not supposed to own rivers and lawsuits are the only way to correct the mistakes that have been made concerning who actually owns the rivers.

 

I wish I had the time and money to sue those in my state that keep us off our rivers.

[IndianaFinesse]

52 minutes ago, S. Sass said:

Here I corrected it for you.

All about the $. You can always find a lawyer willing to take a stupid case as long as there is someone willing to pay. And the longer judges take these cases the worse it gets. 

The 17 Dumbest Lawsuits in Recent History  

Yep. That's more accurate.

[stkbassn]

So it's too small to paddle?!! Maybe it's too small for a 21 foot Ranger to blast through.....but a canoe? And paddling caused what harm to the waterway? I really shouldn't read things like this because it just gets me fired up. Ridiculous. If any court in the land is actually going to hear this case then shame on them for wasting everyone's time and money. Don't they have enough to do?

[Bankbeater]

The article says it is a waterway that connects two pieces of state owned property.  I wonder if they could say it's an easement, and tell the landowners where to go.

[papajoe222]

If the property owner purchased the land knowing that the 'water way' was not used by outsiders only to have someone come paddling through, that person at the very least is inconsiderate of his right to privacy.  Look at it this way for argument's sake; You don't have rights to the air space above your property, but I'm sure you would feel violated if unlicensed drones started hovering over your house.  

I'm not implying that one party is right or wrong, just that the law is open to interpretation and both parties feel their rights should prevail.  This is exactly why we have a judicial system.  Where else would you have something like this decided?  With the landowner and a shotgun?  I know that sounds extreme, but history is full of fueds over water rights. Let the courts decide.  

 

 

[slonezp]

9 hours ago, Western-Mass-Bass said:

I could see if he was running an old 2 stroke down a water way that had an endangered species or maybe a bald eagle hatchling reserve or something.   But he was paddling a plastic boat to get from one point to another!!!!  Cmon man.....

 

If the boat was puking up clouds of smoke, it shouldn't matter. There is no law protecting wildlife from vehicle emissions.

[flyfisher]

if you think this is odd, do a quick search on the king's grant lawsuit in Virginia....

I get someone being upset over it if they bought it and the understanding was that it was a private waterway.  

[slonezp]

52 minutes ago, papajoe222 said:

If the property owner purchased the land knowing that the 'water way' was not used by outsiders only to have someone come paddling through, that person at the very least is inconsiderate of his right to privacy.  Look at it this way for argument's sake; You don't have rights to the air space above your property, but I'm sure you would feel violated if unlicensed drones started hovering over your house.  

I'm not implying that one party is right or wrong, just that the law is open to interpretation and both parties feel their rights should prevail.  This is exactly why we have a judicial system.  Where else would you have something like this decided?  With the landowner and a shotgun?  I know that sounds extreme, but history is full of fueds over water rights. Let the courts decide.  

 

 

I disagree. The airspace above my property is not "navigable".

[papajoe222]

 

1 hour ago, slonezp said:

I disagree. The airspace above my property is not "navigable".

You have planes flying overhead all the time, what makes drones any different?  Don't their owners have the same rights? Besides, the point I was attempting to get across was that the land owner likely feels violated and is taking action.

 

 

[tomustang]

11 hours ago, Scott F said:

According to the Supreme Court, size does not matter. If the water is navigable at any time during the year, it falls under the public trust.

http://www.nationalrivers.org/river-fact-or-fiction.html

I thought I read a while back if the water was ever used as navigable in its entire history it counts.

[Scott F]

1 minute ago, tomustang said:

I thought I read a while back if the water was ever used as navigable in its entire history it counts.

If you look at the link I included in my post, there is a lot of information about who owns the rivers, what the U. S. definition of navigable what the laws are etc.

[tomustang]

2 minutes ago, Scott F said:

If you look at the link I included in my post, there is a lot of information about who owns the rivers, what the U. S. definition of navigable what the laws are etc.

That's just for rivers though. I was digging in a while back since I was looking at streams and canals, I vaguely remember 'navigable water' definition being ever used in its entirety of its life for transporting anything (people/materials/etc) it was considered navigable

[F14A-B]

If the landowner buys said property, thinking he has sole rights to the waterway... he has already erred. Land surveyors, platts, deeds. 

Do your legal work before you close a deal.