Lila Traverse appellate victory!

[attrail]

So does the cable go back up? Or, are we still in a holding pattern?

[ALGonquin Bob]

I expect to paddle through there in 2 weeks, so I'll report on that issue. I think that access will be unhindered pending a resolution to this long process, but just in case, maybe I should wear my Nixon mask when I pass by the trail cameras.

[attrail]

Well, given that during oral argument, counsel for the land owners compared paddlers to Hitler, perhaps a WWII flavored mask would be more appropriate.

[WaterRings]

Does anyone know if there has been any movement in this case since the Court of Appeals referred the matter back to the Supreme Court, AKA Trial court last May?

[Connecticut Yankee]

The case will be going back to a court trial sometime early this summer.

And to answer a previous question, the route through Shingle Shanty on the Brandith property is not legally open for the public to paddle through, (this from the NY A.G.'s office) so anyone planning the trip this summer should use the portage around their property. Best not to challenge until the case is settled.

[attrail]

I paddled the Brook on two trips last year -- both after the Court of Appeals sent the case back down to the trial court. There is no chain across the entrance to the brook and no cameras. The initial portage is marked and the property owners have placed a scrub brush and instructions on cleaning boats to prevent the spread of invasive plants/critters.

I have seen no statements from the AG regarding the "openness" of the Brook and I doubt that any such statement would have the force of law. The status quo before the Appellate decision was that the Brook was open for public use and pending the outcome of the trial and/or any compelling information to the contrary, I will make another trip this year.

[Glenn MacGrady]

I'm surprised I didn't comment on the Court of Appeals decision, since I recall reading all the briefs and watching a video of the oral argument.

Phil Brown won in the trial court (Supreme Court) when the judge granted his motion for summary judgment, which is a legal decision rendered without any trial. The summary judgment said the Shingle Shanty waterway at issue was navigable. The trial judge also issued an injunction against the landowners from interfering with paddlers.

The Appellate Division, the next court up the ladder, sustained the trial court's summary judgment decision.

The Court of Appeals chickened out on the whole issue, saying there should have been a trial to develop the facts better and that Brown shouldn't have been awarded summary judgment on the issue of navigability. So, they in effect nullified both lower courts' legal decisions in favor of Brown. Strangely, they didn't say what happens to the injunction against the landowners. However, since the injunction was based on the finding of navigability in the summary judgment decision, logically it should be dissolved when the basis for it has been dissolved.

So what is the current status of Shingle Shanty? I'd say the status is exactly the same as it was before Phil Brown made his paddle and wrote his article entitled "Testing the Legal Waters". The navigability and hence "publicness" of the waters is undecided. Hence the landowners could put up a chain or sue paddlers for trespass if they wanted to. To test the landowners' position on the matter, I suppose someone could highly publicize that they are going to paddle the disputed stream segment and write a follow-up article called "Retesting the Legal Waters". I'm not advocating that; it's just a thought.

I think what we can confidently take from this years-long Shingle Shanty journey through the muddy New York legal system -- as well as the prior journey on the East Moose in the Sierra Club case -- is that the New York courts don't really want to deal with the issue of navigability in marginal, small, narrow or remote waters. The trial courts don't want to decide the cases on the murky, sparse and contradictory facts, so they kick the cases upstairs in hopes that the appellate courts can decide the cases "on the law". But the law of navigability is itself murky and contradictory, so the Court of Appeals in Shingle Shanty and Sierra Club booted the cases back down to the trial court again to further develop the facts or to seek a settlement.

It's all too hard for the judges. They see the unconvincing facts, they read their own prior fuzzy recitations of the law, they foresee the statewide practical consequences to paddlers and landowners of legal decisions they may make in the wilderness, they are torn by the competing policy and cultural issues at stake -- and they just really don't want to deal with it all.

Ping. Pong.

[WaterRings]

Anything new on this issue? The way I read the decision the case needs to start all over again at the trial court level. Just wondering if it did.

[Viking]

I was contacted by lawyers representing the state about this a few months ago.
They were representing the DEC. I had made the trip a couple of years back when it had opened up. They went through the log books looking for people that had registered. Generally trying to get a feel for my impact on the area as I traveled along. They seemed to be under the impression beavers only build a set amount of dams per year.

[WaterRings]

I agree with Glenn MacGready. His take on the whole case, in his several posts, in my opinion, is correct.

When the Court of Appeals referred the case back down to the trial court they were, in effect, saying that the decision by the Appellate Division was defective. It did not fully develop answers to at least five items. Both parties wanted the matter decided “as a matter of law” not a trial. The Court of Appeals correctly noted that the volume of material that the parties submitted including maps, documents, photographs, letters, articles, guidebooks, affidavits etc., etc. were complicated or contained too “conflicting or inconclusive evidence” to render a determination based on a matter of law. The five items the decision listed that needed to be more fully addressed were:
1. The waterway’s historical and prospective commercial utility.
2. The waterway’s historical accessibility to the public
3. The relative ease of passage by canoe.
4. The volume of historical travel.
5. The volume of prospective commercial and recreational use.

Quoting the Court’s Opinion, “Collectively, these factual assessments present material considerations that, left unresolved, permit more than one conclusion to be drawn concerning the Waterway’s practical utility.”

I my opinion because the Court of Appeals faulted the decision of the Appellate Division it’s value as a citation in future tests of navigability is weak at best. The preceding trial court (Supreme Court) decision was completely neutered. The whole sorted affair is back to square one as if the original suit never happened.

With the whole matter back at the trial court any one of several things could happen. The whole thing could be settled with the litigants deciding that “half an apple is better than no apple.” With the costs incurred to date by both sides and the potential for even greater costs in the future a settlement is a viable option. In New York at least 90% of all cases before trial courts are settled – they never go to trial despite the bluster of the lawyers involved. If Hamilton County only has one Supreme Court judge a change of venue could be requested and the new trial started before a different judge in a new location. The plaintiff could sell NYS a restricted easement or sell a piece of the property in fee thus ending the case or the trial could simply begin again with the outcome appealed by one party or the other.

I guess we will just have to wait and see.

My interest in this case is three fold: I am a Licensed Land Surveyor in NYS with 40 years experience including work as an expert witness in a number of real property disputes involving title issues and adverse possession. Secondly, my family has owned a farm here in NYS for over 100 years that is still in operation and run by the sixth generation. Our sovereignty and private use of the property is continually tested by people who see open space as free for the use of everyone even though they don’t own it. Lastly, I love to canoe in the Adirondacks and have done so for years always respecting the private property of others.

It will be interesting to see how it all shakes out.

[TCD]

Originally Posted by WaterRings

Our sovereignty and private use of the property is continually tested by people who see open space as free for the use of everyone even though they don’t own it. Lastly, I love to canoe in the Adirondacks and have done so for years always respecting the private property of others. It will be interesting to see how it all shakes out.

Agree completely. I don't canoe, but I love to bushwhack. And analogously, I have done so for years while always respecting private property. I am nowhere near running out of places to go explore, legally, on State or easement land. And I have no need or agenda to try to force my way into the private land of others, that they bought, paid for, and maintain.

Sadly, I think this whole case is about trying to force access into private land, and to tear down the concept of private property rights, and not at all about recreation. (And certainly not about commercial navigation, which is a prima facie ridiculous suggestion in this case, and only being used as an arcane legal precedent on the way to an unrelated objective.)

[OntarioSkiBum]

Just to play a devils advocate...

If you bought land on either side of the Hudson, you couldn't put a cable across it and say "No Trespassing- Private Property".

I know the waterway is a lot smaller, but if it is legitimately navigable... you'd think the same principles should apply even if they've owned the property for a long time.

Either way, I'll likely never paddle these waters and i don't even live in NY but fundamentally i don't think people should own water.

There's a similar battle in Ontario where property owners on Georgian Bay try to limit public access and a war has ensued.

https://www.thestar.com/news/ontario...nt_access.html

[Tug Hill]

Originally Posted by tcd

agree completely. I don't canoe, but i love to bushwhack. And analogously, i have done so for years while always respecting private property. I am nowhere near running out of places to go explore, legally, on state or easement land. And i have no need or agenda to try to force my way into the private land of others, that they bought, paid for, and maintain.

Sadly, i think this whole case is about trying to force access into private land, and to tear down the concept of private property rights, and not at all about recreation. (and certainly not about commercial navigation, which is a prima facie ridiculous suggestion in this case, and only being used as an arcane legal precedent on the way to an unrelated objective.)

x2

[dundee]

The whole thing has gotten silly. Here's how it was explained to me: when colonists landed, they used British law, what we now call common law. All 13 colonies generally adopted common law. The waterways were a huge form of transportation and open to the public. When sections the ADKs were bought by wealthy landowners, they had the law changed to exclude the public from using the waterways. However, the law was just for the ADKs and not for other parts of the state. We now have two laws for the same thing in the same state.

At one time, this property was owned by the Nature Convservancy and they had the intent to re-sell to NYS. NY at the time did not have the funding so TNC sold to a private buyer. This property could have been and could still be public land. The area in question is one small corner of the property. If NY has the money to buy the former Finch Pruyn lands, it surely has enough to buy this little corner; end of problem.

If there are any legal eagles out there, correct me if I'm wrong, but this is what I was told.

[attrail]

Originally Posted by TCD

Agree completely. I don't canoe, but I love to bushwhack. And analogously, I have done so for years while always respecting private property. I am nowhere near running out of places to go explore, legally, on State or easement land. And I have no need or agenda to try to force my way into the private land of others, that they bought, paid for, and maintain.

Sadly, I think this whole case is about trying to force access into private land, and to tear down the concept of private property rights, and not at all about recreation. (And certainly not about commercial navigation, which is a prima facie ridiculous suggestion in this case, and only being used as an arcane legal precedent on the way to an unrelated objective.)

I totally agree with the sentiment, but in this case, the reverse is true. The landowners have no respect for public property. They initially tried to fence off a public waterway. Imagine if someone put a fence across a sidewalk and said nobody could pass -- that is what happened here.

[TCD]

Well, not so much. Poor analogy. Sidewalks almost always exist in a strip between private land and existing public land (the road; hence the term "SIDEwalk.") Where a walkway passes through private land, with the same parcel of private land on both sides, it is almost always supported by an easement.

If the state (or someone else) wants to buy an easement here, I'm sure a price could be agreed upon. And I am all for that.

Belly up to the bar, and PAY for what you want. Otherwise, I still see this as trying to use the court system to TAKE something that someone is not willing to pay for.

[dundee]

[QUOTE=TCD;265438

Belly up to the bar, and PAY for what you want. Otherwise, I still see this as trying to use the court system to TAKE something that someone is not willing to pay for.[/QUOTE]

But at one time, we had a right to use it. The landowners used the court system to take it away.

[TCD]

Well, I'm not sure. What you said earlier "...the law changed..." sounds like legislation, not a court action.

And certainly legislation is another option here. I think proposing legislation that would support this would be a fine pursuit for someone so inclined. But that's work and money again.

In the last couple decades, it's become popular in a wide variety of topics to try to use the courts as a short cut to "redistribute" wealth, access, or whatever. It's too much work or money to actually buy something, or to push through legislation allowing something. So "activists" have learned that if they can find a sympathetic judge, they can short cut the work and just take what they want, whether it's taxpayers money, private land access, or whatever. I have long viewed that trend as unfortunate.

[dundee]

Originally Posted by TCD

Well, I'm not sure. What you said earlier "...the law changed..." sounds like legislation, not a court action.

Yes, I guess legislation would be the correct term, but the law was changed in their favor. The sticky point for me is that the rights, the law are different in other parts of the state.

[WaterRings]

So here we go again. The sidewalk analogy or highway analogy above referred to is a poor one. Highway law and navigable water ways are two different animals and should not be tangled together. Unless a roadway is formally dedicated, the traveling public gains rights to a roadway by prescriptive use. Though case law, and there are reams of cases, the public gains prescriptive rights to a strip of ground 16.5 ft. on each side of the centerline of the physical roadway for a total of 33 feet simply by travelling on the road (for any purpose) over the course of many years. If land is actually dedicated for a roadway or an existing road is widened and land deeded to the municipality then the land afforded the public is as described in the deeds and the width can be anything. Sidewalks, utilities, signs etc are placed within the public right of way. If public improvements are placed outside of the right of way, on private property, then an easement is required.

Regarding navigable water: Case law abounds here also. Historically, a river, lake, stream etc is navigable in law if they are navigable in fact and they are navigable in fact when they are used, or are susceptible of being used, in their natural and ordinary condition, as highways for commerce. Navigability does not depend on any particular type of boat, only that the stream in its natural and ordinary condition affords a channel for useful commerce. [United States v. Holt State Bank, 270 U.S. 49, 56 (1926)]

Other cases have proven that a particular river or stream is navigable in law by demonstrating a history of commercial use. Shingle Shanty has never had a commercial use. The often quoted Adirondack League Club v. Sierra Club [92 ny2d 591,601 (1998)] case demonstrated that a recreational use may properly be “part of the navigability analysis.” Here again Shingle Shanty has not had a history of recreational use. NYS did not own the land on either side of the property in question and there was no reason for anyone to travel that route. Defendant Brown and his attorneys tried to demonstrate at the Appellante Division Court that Shingle Shanty has the potential for recreational use. In my opinion it is absurd on its face to suggest that Shingle Shanty can somehow be determined to be navigable now based on a potential future recreational use. I was infuriated when the NYS Attorney General stepped into the case in support of Brown. My tax dollars were being spent to intervene in what I viewed as a simple trespass case between private parties. Especially since the NYSDEC had build a carry trail around the private property in obvious acknowledgement that NYS and the public had no right to use Shingle Shanty.

The Court of Appeals, in the Opinion of the Court, quoted the Adirondack League Club case stating that “a waterway’s navigability is a highly fact-specific determination that cannot always be resolved as a matter of law” which is what both parties (in the current case) jointly wanted. The Court of Appeals, in my opinion was correct in sending the case back down for a trial to sort out the facts pro and con.

We should all wait, as hard as it may be, for the case to be resolved. I will not chime in again on this. We can not solve this case on these forums.