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Old 11-14-2012, 03:29 PM   #1
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Shingle Shanty lawsuit update

Arguments will be Friday in the Shingle Shanty case. For those interested, we posted the legal memoranda posted by all three parties in advance of the oral arguments.

Click here to find the memoranda.
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Old 11-14-2012, 04:28 PM   #2
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Thanks for sharing!
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Old 11-15-2012, 03:57 PM   #3
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Can't wait for the decision - any ideas on when the ruling will come? I assume it won't be immediately after arguments tomorrow. I've read all the memos through and it looks to me like someone will get a well deserved smack down (knock on wood and all that).
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Old 11-15-2012, 04:25 PM   #4
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Mud Pond Slinging

Thanks for the update, Phil. You may recall some of the remarks I made about this situation even before the legal action began, so I'll just comment on some of the issues stated in the legal memoranda that you were kind enough to provide. I think we're all looking forward to your first comments following the conclusion of this lengthy action.

Both Caffry & Flower (Attorneys for Defendant Phil Brown) and McPhillips, Fitzgerald & Cullum LLP, (Attorneys for Plaintiffs Friends of Thayer Lake LLC) make strong points in favor of their arguments.

I think two of the points made in the “Brandreths memorandum of law”, a document prepared by Attorneys for Plaintiffs, render an accurate summary of the case:
  • “Arguably, the point of the canoe ‘route’ is the remote wilderness hiking and canoeing experience itself, as evidenced by the defendant’s assertions that frequent and long portages are common to these types of wilderness trips and do not deter the public from utilizing State-owned canoe routes.”
  • “If Defendant Brown and Special Agent McSalis were interested in getting from Little Tupper Lake to Lake Lila in the most direct and ordinary fashion, they could have simply taken the State-maintained dirt road linking the two water bodies.”
If Phil Brown’s attorney successfully defends the trespassing charge, it will likely do little to prevent other landowners from defending their property rights against those who would take this as a license to trespass elsewhere, and those of us who paddle the Whitney Loop in the future will still have 5 carries to deal with, a longer water route for paddling, but 7-tenths of a mile less to carry (4.3 miles vs. 5 miles total). That is a lot of time and money spent for little gain.

If the Thayer/Brandeth group triumphs, they retain the privacy that they desire on their private pond and paddlers will still have the Whitney Loop that we can traverse via the existing waterways and 5 carries between Little Tupper and Lila.

I don't believe there is in fact an important public access issue at stake in this specific legal action, just a matter of whether we can take a shortcut involving less walking and more paddling. An amusing comment made by the Thayer/Brandeth lawyers was in pointing out that this case seems to be more about “traveling by water is much easier than performing a carry”, and that will be about all that is gained or lost here. In my humble opinion, it’s no big deal either way, as long as I can still merrily paddle my “single log” gently down the stream.
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Old 11-16-2012, 02:53 AM   #5
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Phil, thanks for posting those links to the briefs, which appear to be very thoroughly argued on both sides.

At issue is the interpretation of the ALC v. Sierra Club case. Each side interprets it differently.

The crux issue boils down to whether recreational canoeing and kayaking, alone, is sufficient evidence to render a water body publicly navigable. Brown and the DEC argue, yes. The plaintiffs argue, no, that their must be additional historical evidence of commercial use or public travel beyond the mere ability to float recreational canoes and kayaks.

Surely the judge will take several months to write an opinion. But it won't end there. The case is an important one, interpreting a prior decision of NY's Court of Appeals. Thus, it is likely to be argued again in the Appellate Division and a third time in the Court of Appeals. This process could take two years.

This is a very big deal case -- not for the Whitney Loop trip per se -- but for it's statewide force as a legal precedent. If recreational canoe floating is adopted as the test of public navigability, paddlers will be able travel along every minor floatable stream and interconnected small pond through anyone's private property in the state. That's what Brown and the DEC apparently want.

If the recreational canoeing-alone rule is rejected, all the private landowners in the state will be encouraged to become even more aggressive in putting up barrier chains and bringing trespass actions against paddlers. If that happens, the case will have been counterproductive for paddlers and will likely be viewed in historical perspective as an improvident litigation.
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Old 11-17-2012, 11:21 AM   #6
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The Daily Gazette ran a story on the arguments, but it is behind a pay wall. Attorneys say it may be a few months at least before the judge hands down a decision.
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Old 11-17-2012, 03:46 PM   #7
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Clearly there needs to be a legislative solution and not just the courts attempting to broaden what has been defined in common law as commercial activities. A ruling against Phil is hardly improvident if it gets the lawmakers off their ass and ends the judicial shenanigans.
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Old 11-17-2012, 05:50 PM   #8
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What do you think a legislature could do?
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Old 11-17-2012, 08:55 PM   #9
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The law on the books is antiquated and was written so landowners can float logs down a river that runs through private property. A new law needs to written because the way these resources are utilized has changed a lot.
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Old 11-17-2012, 09:59 PM   #10
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I'm no judge / lawyer, but from what I've seen in the memos, the common law includes travel. I would be shocked if the courts finding was against Phil and NY.
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Old 11-17-2012, 11:09 PM   #11
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The law on the books is antiquated and was written so landowners can float logs down a river that runs through private property. A new law needs to written because the way these resources are utilized has changed a lot.
So all laws should be changed as the times change?

(Trick question alert)
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Old 11-18-2012, 10:59 AM   #12
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Off on a tangent here but are you familiar with the Jackson River case here in VA? A pair of fishermen were sued for trespassing for touching river bottom, even though the river is advertised and stocked by the state as a public fishing resource, the water flowing through private property belongs to the Commonwealth of Virginia under the state constitution, and the river flow is regulated & improved by a government-owned dam just upriver. Local officials dropped the charges. A dubious King's grant claim and "color of title" allowed the property owner to pursue a civil suit, and the state's attorney chose not to get involved and assert the public's right of access. The fishermen gave in due to legal costs, and the case did not clear up the public access question (or the legitimacy of the King's grant).

Interesting how "common law" varies from state to state.
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Old 11-18-2012, 11:40 AM   #13
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Hopefully this does come to a resolution of some sort sometime soon.

I like Phils chances on this one, but would feel a bit more optimistic about things if he was using someone a little better than John Caffrey. John is good for traffic court or if your kid gets busted with weed in the school halls, but I am not so sure this is the type of case he has the most experience with. Personally I would have gone with John Lapper over at Bartlett, Pontiff in a case like this, but to each his own I suppose.

Good luck Phil. Looking forward to the decision and the appellate brief.
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Old 11-18-2012, 11:49 AM   #14
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Originally Posted by Pumpkin QAAD View Post
The law on the books is antiquated and was written so landowners can float logs down a river that runs through private property. A new law needs to written because the way these resources are utilized has changed a lot.
I believe, (and I sure the legal eagles will correct me if i am in error) that the common law was for travel as a public highway and it was the courts who determined (via litigation by lumber companies) that floating logs was included. The common law right for human travel was never in question, hence the only case law was for logs and it was the courts who expanded the common law to include them. The "antiquated law" thus was for people and their boats, not for drone logs.
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Old 11-18-2012, 12:40 PM   #15
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The common law addresses commerce because recreational paddling was not as important. Making the argument under common law that paddling could be a commercial activity or important means of public transportation is a stretch and that's where I think legislature needs to act an define (or disallow) the publics access to private waterways because the test of floating a raft to market doesn't apply to how people are trying to use these waters. Clarification would be good for everyone, it's actually strikes me as a potentially dangerous ambiguity. If you like to read this is informative of how the common law has been developed:

http://digitalcommons.pace.edu/cgi/v...ext=lawfaculty

Remember there are two terms navigable in law where the state wanted to retain for transportation (effected by tides) and navigable in fact where the state wanted to retain an easement for commerce and transportation (before there was a thruway). I don't know how anyone can argue that a day of recreational canoeing is an important means of public transportation but yeah that's up to the courts right now.

And yes Hawk, I am of the opinion that laws need to have the ability to be kept current. Be it property laws on streams or civil rights issues like universal suffrage.
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Old 11-18-2012, 01:34 PM   #16
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Personally I like the argument that in modern times commerece isn't floating logs, but is people paddling these waterways. Paddling as a form of commerece is in itself an extension of the tourism industry, where participants in the activity spend money on fuel, lodging, and other items while they are visiting the communities that host good waters. Much like hikers and backpackers do thier share to support the economy in Keene Valley. The hiking and paddling aren't the economic impact part of the equation, but are indeed the impetus behind it.
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Old 11-18-2012, 02:03 PM   #17
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Personally I like the argument that in modern times commerece isn't floating logs, but is people paddling these waterways. Paddling as a form of commerece is in itself an extension of the tourism industry, where participants in the activity spend money on fuel, lodging, and other items while they are visiting the communities that host good waters. Much like hikers and backpackers do thier share to support the economy in Keene Valley. The hiking and paddling aren't the economic impact part of the equation, but are indeed the impetus behind it.
I agree but if certain waterways were open to transport logs in the 1800s so property upstream wasn't worthless, legislature needs to address this new type of commerce. It was written to protect landowners from eachother not for third parties wanting to use streams without a true transportation value. That's why there can't be any permanent solution to the case by case nature of the courts interpreting facts until the legistators write an updated law.
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Old 11-18-2012, 02:28 PM   #18
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Let's clarify some terminology. "Common law" refers solely to the accretion of written judicial decisions over time, acting as precedents for one another. The common law is thus differentiated from statutory law, which is written by legislatures.

The whole issue of the right of public passage by boats on water bodies depends on whether the water body is "navigable" ("-in-fact"). That has been the rule for hundreds of years in England and America. But "navigable" is not a self-defining word. All words are ambiguous in real world application.

Thus the courts -- the judges -- that is, the common law -- have been trying for hundreds of years to explain what "navigable" means by using different word formulations. These word formulations, or legal "navigability tests", are generally pretty similar. However, all of them are composed of words, and some of these words are themselves ambiguously defined terms, such as "commerce", "travel" and "private property". Therefore and necessarily, all of these common law word formulations for a navigability test are ambiguous when you apply them to marginal water bodies in the real world. That's the problem: the word "navigable" cannot be defined with any more precision, for all situations, than can words such as "beautiful" or "fair" or "fun".

So, why would a group of politicians in a legislature be able to write a more definitive word formulation, a better navigability test, than hundreds of years of judges in two countries and 50 states?

New York does have at least one statutory definition of navigable waters, though it does not purport to control the right of public passage. It's a useful example of ambiguity piled on ambiguity, and I've boldfaced some of the ambiguous terms, each of which is subject to different interpretations.

The New York legislature has defined the "navigable waters of the state" as including "all lakes, rivers, streams and waters within the boundaries of the state and not privately owned, which are navigable in fact or upon which vessels are operated . . . ."

"Navigable in fact" is later defined in the statute as meaning: "navigable in its natural or unimproved condition, affording a channel for useful commerce of a substantial and permanent character conducted in the customary mode of trade and travel on water. A theoretical or potential navigability, or one that is temporary, precarious or unprofitable is not sufficient, but to be navigable in fact a lake or stream must have practical usefulness to the public as a highway for transportation."

So, how helpful in clarifying the real world meaning of navigability is this word formulation of the New York legislature? You are the judges; you can decide.

What the ALC vs. Sierra Club case in effect did was to say: Hey, you can also throw evidence of recreational boating into the ambiguous word formulation of navigability. But the court didn't decide how much the recreational boating evidence should be "weighted" in the final formulaic balance.

Brown and the DEC in the Shingle Shanty Case effectively say recreational boating should weigh 100%. Thus they propose this word formulation as the legal definition of navigability: If a body of water can float a canoe it is navigable.

Indeed, that navigability test would be simpler and easier to apply than the current common law and statutory definitions. The problem is, it would upset 200 years of settled principles and expectations of private land ownership throughout the entire state of New York. The courts have to balance those principles and expectations in making a decision.

I'm not casting a vote or predicting the case. I'm just trying to lay out the definitional difficulties and real world property law effects that judges have struggled with for more than 400 years in the Anglo-American jurisprudence of navigable waters.
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Old 11-18-2012, 04:55 PM   #19
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It wouldn't be as difficult If it was addressed by a new statute. The next set of judges that are partial to private land ownership can overturn this case by reinterpreting the statute and previous case law, throwing more ambiguity into the situation. I'm not sure how much money you all make while paddling but according to my wife it's a money loser. So then it would not count as a commercial activity according to the statute. It'll depend on what judge gets the case or the appeal. Wonderful.
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Old 11-18-2012, 06:15 PM   #20
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[QUOTE=Commissionpoint;193460
I like Phils chances on this one, but would feel a bit more optimistic about things if he was using someone a little better than John Caffrey. John is good for traffic court or if your kid gets busted with weed in the school halls, but I am not so sure this is the type of case he has the most experience with. QUOTE]

I believe you are in error about this. John is NOT the kind of lawyer you'd want for traffic court or if you kid got busted for weed, but IMO, he's more than qualified for an enviromental case and I can think of no one better. This IS the type of case he has the most experience with.

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