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AG intervenes in Shingle Shanty case

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  • AG intervenes in Shingle Shanty case

    Find the documents here.
    Adirondack Explorer
    www.adirondackexplorer.org

  • #2
    Cool!

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    • #3
      EULA: By reading this post and associated disclaimer, you are consenting to agree with the opinions disclosed within. If you disagree with this license agreement, you may not return it for a refund.

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      • #4
        This is what I find particularly of interest and strong for Phil's and now the states case.

        Page 13 --------------------------------
        "3. The 1851 deed by which the state of new york conveyed the Mud Pond Parcel to Plaintiff's claimed predecessot in title did not convey to the purchasers the public easement of the right to travel on navigable waterways."

        4. Plaintiffs Friends of Thayer Lake, LLC took title to the Mud Pond Parcel by deed dated December 27, 2007, which deed acknowledges and states that it is subject to the right of the public to navigate the surface waters of Lilypad Pond,, Mud Pond, it's outlet, and Single Shanty Brook, and states that the deed was subject to any and all easements whether of record or not, and the right of navigability is such an easement"

        ---------------------------------------------------------------

        Page 16 --------------------

        "12. A waterway that is navigable-in-fact is considered a public highway notwithstanding that it's banks and beds are in private hands.
        13. Waters are navigable-in-fact if they have practical utility for transport, whether for for trade or travel.
        14. Recreational use of waters is within the traditional test of navigability"

        ----------------------------------------------------------------------

        It also goes on to state that since outdoor recreation is a part of the Adirondacks economy as are Adirondack guides, it would also serve as a commercial use of the river.

        I like that the state is now being proactive and suing them for the actions they have taken to deny the public access.

        I think the irony here is that they may have opened up a can of worms with this uit that most property owners in similar situations feared. And if the plaintiffs lose, and are required to remove the signs and impediments to travel, the lawsuit will generate enough publicity to entice a great number of people to paddle the waters and see for themselves. That would mean that there would be volumes more traffic then there would have been had they been willing to reach a compromise, which the documents also make very clear they did not.

        On the other side of the coin, if the plaintiffs do lose the case, I hope that the paddlers will respect the fact that they are only allowed to paddle through and portage and will otherwise respect the property owners legal rights. I also hope that the DEC will patrol those waters and enforce those rights. It's a 2 way street.

        Hawk
        "If future generations are to remember us with gratitude rather than contempt, we must leave them more than the miracles of technology. We must leave them a glimpse of the world as it was in the beginning, not just after we got through with it." Lyndon B. Johnson

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        • #5
          The plot thickens! Took them long enough. It would have been rather odd if they hadn't intervened, for obvious reasons.

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          • #6
            Well, THAT ought to make Denny sit up & take notice.
            --"Pete You***?!, Pete You***'s grandson?!...That name is nearly sacred & uttered with awe in THIS house!" : The late Dr. Reed's wife, upon entering her house & being introduced- so to converse with her husband about the old days, a little before he died. The kind of greeting you'll never forget & reinforces your image of the hero you never met. --

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            • #7
              Apparently the State agrees that the 1851 deed sets the time horizon for when navigability in fact is determined and they have raised the affirmative defense that the waterway was navigable in fact prior to that time. Want to see some proof, boys.

              It's really pretty scurrilous when a party enters into settlement discussions with another party and then tries to bootstrap the settlement efforts into being part of their case. Even most lawyers think it is pretty slimy. Most judges won't allow it as it discourages anyone from settling and is generally inadmissible. But if the State really wants to go down that road, I want to hear their explanation about why the State/DEC paddlers asked permission from the Brandreths to paddle the brook, as referenced in earlier posts? I mean if they really believed in their own position, they would not have asked permission. They may regret opening the door to the settlement discussions.

              One problem with multiparty defenses, is that the original defendants just lost control of any defensive strategy they may have had and now have to worry about what their new codefendant's have just done/will do in the future to trip them up.

              So far, long on allegations, short on proof.
              Last edited by Paradox6; 02-24-2011, 11:00 PM.

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              • #8
                Originally posted by Paradox6 View Post
                Apparently the State agrees that the 1851 deed sets the time horizon for when navigability in fact is determined and they have raised the affirmative defense that the waterway was navigable in fact prior to that time. Want to see some proof, boys.

                etc, etc, ...
                Finally somebody suggests that it's premature to celebrate. And far better stated than I could have done.

                Me thinks that since the DEC weighed in on the issue the AG feels obligated to be part of the process. Just 'cuz the AG is involved doesn't mean the case is closed. Far from it. Remember, the AG is just a lawyer whose clientelle happens to be the state.

                What worries me is that the plaintiffs may feel pressured to settle since they now are facing an opponent with bottomless (yeah, right) pockets.
                Last edited by randomscooter; 02-25-2011, 09:15 AM.
                Scooting here and there
                Through the woods and up the peaks
                Random Scoots awaits (D.P.)


                "Pushing the limits of easy."™

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                • #9
                  http://www.dec.ny.gov/regulations/58846.html

                  DEC was afraid of suppression of evidence due to unlawful inspection under their own guildelines.

                  However I am of the opinion they would not need permission but were being courteous. They don't need permission to enter private land. Another violation of rights that is funded by sportsmen and taxpayers.

                  Oh by the way so who pays for all these lawyers to file interventions, the DEC to investigate and then the subsequent litigation ?

                  great....
                  A society grows great when old men plant trees whose shade they know they never shall sit in

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                  • #10
                    Originally posted by Pumpkin QAAD View Post
                    http://www.dec.ny.gov/regulations/58846.html

                    DEC was afraid of suppression of evidence due to unlawful inspection under their own guildelines.

                    However I am of the opinion they would not need permission but were being courteous. They don't need permission to enter private land. Another violation of rights that is funded by sportsmen and taxpayers.

                    Oh by the way so who pays for all these lawyers to file interventions, the DEC to investigate and then the subsequent litigation ?

                    great...
                    .
                    If you want to put any blame for that, then blame it on the people who filed a suit rather then reach any kind of compromise.

                    If I read the documents right, two employees of the DEC, at the owners invitation, paddled Shingle Shanty Brook to determine it's Navigability. After doing so, the DEC informed them that Single Shanty was navigable-in-fact under common law and suggested that they work out a compromise.

                    The owners reply was to contact the state police and insist that Phil Brown be arrested for trespassing, even though the agency charged with enforcement had already determined that in their opinion it was a public waterway. When the state police refused the owners then filed a suit against Phil Brown.

                    So, blame away, but lets put the blame in the right place.

                    Hawk
                    "If future generations are to remember us with gratitude rather than contempt, we must leave them more than the miracles of technology. We must leave them a glimpse of the world as it was in the beginning, not just after we got through with it." Lyndon B. Johnson

                    Comment


                    • #11
                      I was pointing out a government waste of resources not blaming citizens for the cause of it, but interesting way to twist my words around.

                      I'll happily pay my $150 bucks a year in license fees so lawyers can have fun with leases from 1851.

                      I'm sure we will be deleted shortly anyway, at least my posts.
                      Last edited by Neil; 02-25-2011, 11:18 AM. Reason: Spelling.
                      A society grows great when old men plant trees whose shade they know they never shall sit in

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                      • #12
                        Originally posted by Pumpkin QAAD View Post
                        I'm sure we will be deleted shortly anyway, at least my posts.
                        Only the personal barbs, jabs and smears get deleted.
                        The best, the most successful adventurer, is the one having the most fun.

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                        • #13
                          Originally posted by Neil View Post
                          Only the personal barbs, jabs and smears get deleted.
                          You should send a note to the AG about his press release! With its references to "intimidation tactics," "unlawful travel blockages" and "harassment," you'd think the property owners have strung razor wire across a major river with a long history of public use, are using motion sensors to play selected sound bites from Deliverance, and put up cameras to take pictures of paddlers for "Wanted: Dead or Alive" posters that they nail to trees on their property line and use for target practice.

                          Why can't the AG be civil and honest about this dispute, where two sides have a reasonable difference of opinion and are acting accordingly, which obviously has resulted in a conflict that everyone always knew could only be resolved in court? Browbeating by the AG is not going to help matters.

                          And why is the New York League of Conservation Voters making a statement on the matter? What possible good for the environment can come from increasing recreational access to this waterway, especially when it means setting precedent that will have to apply across the state.

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                          • #14
                            Originally posted by fisher39 View Post
                            You should send a note to the AG about his press release! With its references to "intimidation tactics," "unlawful travel blockages" and "harassment," you'd think the property owners have strung razor wire across a major river with a long history of public use, are using motion sensors to play selected sound bites from Deliverance, and put up cameras to take pictures of paddlers for "Wanted: Dead or Alive" posters that they nail to trees on their property line and use for target practice.
                            "intimidation tactics," - Postings and threatening people with lawsuits to scare them off the water.

                            "unlawful travel blockages" - Steel cables

                            "harassment," - Calling the NYS Troopers on paddlers when they weren't actually breaking the law seems to fit this bill.

                            How are these 3 items extreme exactly?
                            “Climb the mountains and get their good tidings. Nature's peace will flow into you as sunshine flows into trees. The winds will blow their own freshness into you, and the storms their energy, while cares will drop off like autumn leaves.”

                            ~John Muir





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                            • #15
                              Originally posted by Dustin View Post
                              How are these 3 items extreme exactly?
                              It's easy to make those on either side of this issue appear vilified.

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