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Old 11-18-2012, 06:20 PM   #21
adkman12986
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Don't think that there will be a solution that will make both sides happy. As stated before if Brandith wins paddlers won't be happy and if paddlers win private land owners won't be happy. In my opinion I truly hope Brandith wins Not because I want to see paddlers kept out but to many times I have seen things like this open up areas that all the general public did is trash it. Not everyone has the same ethics as you and I and some just don't care. Good example is the Lows Lake area. The year it went public the state was hauling garbage out by the truck load. No it wasn't left behind from the previous club but by the general public that was let in. Guess sometimes private ownership is better.
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Old 11-18-2012, 09:22 PM   #22
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C-Point, John Caffry is well qualified to defend this case. He was one of the attorneys in the Moose River case. I thought he did an excellent job in the oral arguments on Friday.
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Old 11-18-2012, 09:38 PM   #23
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Is not recreation an important, if not a major component, of the local economy within the Adirondacks. Recreation in our time Is commerce. Without recreation the local communities would be in even worse shape than they are now.

Personally I lived in the Adks for several years, and now that I live out of state I spend a majority of my disposable income going back up, 30-40 days a year. I spent ~$3000 in property taxes for starters, I spend money at the gas stations , grocery store, hardware store, and often get a berger and bear at Charlies Inn. All of us outsiders contribute to the local economy.

Check out water rights and access in the State of Maine, If Follensby Pond were in Maine We'd all be able to paddle it legally.

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Old 11-18-2012, 09:46 PM   #24
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C-Point, John Caffry is well qualified to defend this case. He was one of the attorneys in the Moose River case. I thought he did an excellent job in the oral arguments on Friday.
Thats why I said to each his own Phil. I was just expressing my opinion, not casting aspersions on your right to council of your choice.

I'm glad you are happy with Mr. Caffry, and like I said before, I wish you and he only the best of luck.
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Old 11-18-2012, 10:00 PM   #25
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Thanks, CP. I know you we're not casting aspersions, but I wanted to clarify John's credentials.
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Old 11-18-2012, 10:08 PM   #26
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Contrary to Commissionpoint's comments on Mr. Caffry's qualifications and based upon my own 40 years of practicing law, involvement with Adirondack advocacy matters and personal knowledge of Caffry, I would say that he is eminently qualified to handle this matter. In fact, I would describe him as the "go to" lawyer in these matters.

For the record, it is counsel not council.
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Old 11-18-2012, 10:33 PM   #27
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Are they going to have a jury decide if the shingle shanty is navigable in fact or if there is a viable commercial enterprise of paddling on the creek?
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Old 11-18-2012, 10:52 PM   #28
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Contrary to Commissionpoint's comments on Mr. Caffry's qualifications and based upon my own 40 years of practicing law, involvement with Adirondack advocacy matters and personal knowledge of Caffry, I would say that he is eminently qualified to handle this matter. In fact, I would describe him as the "go to" lawyer in these matters.

For the record, it is counsel not council.
Thanks for the spellcheck.

And there is your opinion on the matter. Isn't it wonderful how we all have our own ideas?
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Old 11-18-2012, 11:24 PM   #29
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When it's been said it will likely be months - Will it be months before the court decides if they will grant Summary Judgement? Or will they say in a week or so that summary judgement has been granted and then a few more months to render a finding?
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Old 11-18-2012, 11:25 PM   #30
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One thread running through the conversation is the suggestion that recreational use of Adirondack waterways is some modern phenomenon. While it is true that rivers haven't been necessary for moving logs to market for a century and now only the most major rivers in the US are used for commercial transport (by barges), recreational use has always been very important in the Adirondacks - think of the guides of the 1800s (which gave us the term guideboat), and books like William H.H Murray's Adventures in the Wilderness and E.R. Wallace's Descriptive Guide to the Adirondacks. The late 1800s seemed to be the heyday of Adirondack tourism and recreational use of the waterways.

Curiously this is the first case to squarely deal with the question of whether a waterway with the capacity to float nothing more than canoes is a public highway in New York. I'd think that this question would have been extensively litigated in the 1800s when the state was busy selling its property in the Adirondacks, property owners started restricting access, and tourism was a huge industry. There was no Northway, 28 or 30 then, and the idea of waterways being public highways must have been much more concrete then than it is now. Wouldn't 19th Century Adirondack guides, sports, hoteliers, boatmakers, trappers, etc have been up in arms about having the minor streams they once traveled freely closed off if they were considered public highways?

The first case in New York on the topic of certain rivers being public highways occurred in 1866, and the legislature designated numerous rivers throughout the Adirondacks public highways starting in the mid-1800s. Why did streams like Shingle Shanty seem to be neglected when the courts and the legislature were both busy making it clear that numerous larger waterways were open to the public?

Anyway, now that real lawyers and real courts are involved, all this seems like predicting an election! Let's cross our fingers and hope the courts provide a clear answer to the question of whether a stream with the capacity to float nothing more than canoes and the like is a public highway, whatever that answer may be.
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Old 11-19-2012, 08:42 AM   #31
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The answer to that question is that there were, and still are, numerous other streams to paddle than ones like shingle. Also there weren't nearly as many paddlers with the ability to reach almost any body of water with all the highways and vehicles.

Have you ever seen the kayak gathering photo in the daks?
http://ngm.nationalgeographic.com/vi...ndacks-714.jpg
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Old 11-19-2012, 09:14 AM   #32
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The answer to that question is that there were, and still are, numerous other streams to paddle than ones like shingle.
That's the heart of it. As stated by the Court of Appeals in the ALC-Sierra Club case "Necessity of use by the public was essential to the Morgan Court when it crafted this definition from its English ancestor."

No one needs access to Shingle Shanty and other streams that can float nothing more than canoes now, and no one needed access to them in the past. Guides and their sports could just go elsewhere, and trappers could haul their furs over land to market. In contrast, logging in the 1800s would have been impossible without access to rivers of sufficient capacity to transport logs.

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Have you ever seen the kayak gathering photo in the daks?
http://ngm.nationalgeographic.com/vi...ndacks-714.jpg
Wow! Beautiful… and a little scary.

Last edited by fisher39; 11-19-2012 at 12:18 PM..
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Old 11-19-2012, 10:44 AM   #33
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Seems to me that in the case of rivers and streams, they were the first and often only method of transportation in the early days of this country and in the case of the Adirondacks, often into the Twentieth Century. Lake George and Lake Champlain and the Hudson and St. Lawrence Rivers were hotly contended by the British and the French and then the "Americans" to control the waterways. They were strategic because commerave and travel depended on the Lakes, Rivers and the streams.

In many ways waterways are the only other method other then backpacking to many destinations in the Adirondacks. And since much of the economy in the Adirondack Park is tied to recreational use, then navigable by right as a legal argument makes all the sense in the world to me.
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Old 11-19-2012, 11:23 AM   #34
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Makes sense to me. Since paddling will be a commercial activity perhaps the State and the APA should regulate it and ensure that the folks doing the commerce are aware of conservation principles and pay their fair share for the regulation of the commercial activity and the park. Boat registration for commercial vessels is probably in order as well.

Just seems to me that this isn't a commercial activity and paddling is being molded into something that it's not in order to conform to archaic laws because it makes sense financially and practically to allow access. How about legislature writes a law that clearly states certain recreational activites will be allowed on waterways where the state has retained a historical easement for commerce.
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Old 11-19-2012, 06:35 PM   #35
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Gazette story now available

The Daily Gazette has made its story available to the general public.

Click here to read it.
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Old 11-21-2012, 11:54 AM   #36
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Please can we get back on topic?

There was a thread about a permit system (pros and cons) recently. It was not this one.
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Old 11-21-2012, 12:40 PM   #37
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Please can we get back on topic?
Click here to pursue the (split-off) discussion regarding permits.
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Old 11-21-2012, 03:04 PM   #38
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Another account of arguments online

Ken Aaron has posted a brief account of Friday's arguments on Adirondack Almanack.

Click here to read it.
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Old 11-21-2012, 03:44 PM   #39
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This Court must decide, based on the common-law standard of navigability-in-fact, whether factual questions exist as to the [South Branch's] navigability. Like the Supreme Court and the two—Justice dissent in the Appellate Division below, we conclude that summary judgment is not warranted. We hold, however, that evidence of the river's capacity for recreational use is in line with the traditional test of navigability, that is, whether a river has a practical utility for trade or travel. Since questions of fact remain regarding whether the South Branch is navigable-in-fact, plaintiff is entitled to have the competing evidence weighed and the credibility of the witnesses assessed at trial. Accordingly, we modify. Adirondack League Club, Inc. v. Sierra Club, 92 N.Y.2d 591, 600, 706 N.E.2d 1192, 1194 (1998)


I haven't been on it, does the shingle shanty have a portion that must be portaged due to it's flow in summer? Will that be the basis of the plaintiff's arguments, it's hard to find actual details.
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Old 11-21-2012, 05:13 PM   #40
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From the little I know (never paddled the private section), the main obstacle to paddling the entire length of private land is a man made water retention (dam) structure on Mud pond.
Both sides seem to agree that the rest of the water course can be paddled even in low water (aside from going over beaver dams). This view is also supported by the DEC personnel who paddled the route at owner's invitation.

Lawrence P. Gooley wrote an article in the almanac about a historic battle over paddling rights. [sorry for double posting, but the link belongs in this thread] While not all of it is applicable to the case at hand, some ideas may be of interest..
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