by Charles C. Morrison
The Chapter’s Adirondack Committee has gained traction in its effort to end the illegal blockage of a legally navigable waterway much admired by recreational canoers and kayakers.
The committee sent an extensively documented letter of complaint to the DEC and the Attorney General in August, 2009, about the illegal blockage—with cables and intimidating signs—of the Mud Pond-Shingle Shanty Brook through-route for paddling between Lake Lila and Little Tupper Lake in the Whitney Wilderness.
The DEC has responded strongly to the committee’s complaint about the actions of the Brandreth Park Association and its affiliate, Friends of Thayer Lake.
DEC Assistant Commissioner for Natural Resources Christopher Amato and other DEC staff met with Brandreth representatives in December, 2009, and proposed avoiding a lawsuit over the blockage, which the Adirondack Committee had pointed to as a common law public nuisance under DEC’s own guidelines. The DEC proposed opening the route for three years on a trial basis. In return, DEC would increase patrolling by its rangers to help prevent trespassing or other such problems for the landowners.
Despite correspondence and a paddle-through by Amato last summer at Brandreth’s invitation, members of the Brandreth Park Associational most unanimously voted down the trial proposal at its annual meeting in August. A Brandreth attorney requested that Amato have DEC rangers and the state police prosecute “trespassers” on the disputed waterway.
Amato rejected that request and countered by telling Brandreth to immediately remove any cables, signs, field cameras or other deterrents o public passage. He wrote: “The Department has concluded that Mud Pond, Mud Pond Outlet and Shingle Shanty Brook are subject to a public right of navigation, and that members of the public are therefore legally entitled to travel on those waters.” Amato also said that Brandreth’s interference with and actions to impede or prevent public navigation of these waters was “unlawful” and must be discontinued immediately, and if Brandreth fails to comply with removal of impedences, the DEC will “evaluate its options, including referring this matter to the Attorney General’s office for legal action.” Amato asked Brandreth to “reconsider” DEC’s proposal and ended the letter with, “In the mean time, the Department is unwilling to acquiesce in the Association’s continuing interference with the public’s right to navigate Mud Pond, Mud Pond Outlet and Shingle Shanty Brook.”
Although Brandreth’s adversary clearly is the State, on November 15 it filed a trespass complaint in Hamilton County Supreme Court against a softer target, Phil Brown, editor of Adirondack Explorer magazine, who had written a detailed article about his May 2009 trip through Mud Pond-Shingle Shanty Brook. Brandreth also asked the court for a declaratory judgment as to whether this waterway is navigable-in-fact under common law criteria.
Brandreth claims that it is not navigable-in-fact because it has no prior history of commercial use and that recreational use alone is insufficient to support a finding of navigability. However, DEC contends that if a waterway can be used for recreational purposes, it has the capacity for trade and travel and, therefore, it meets the common law test for being navigable-in-fact.
The common law public right of navigation has existed in New York since it became a state in 1777.
The DEC has asked the Attorney General to intervene in the lawsuit that Brandreth instituted against Phil Brown. An answer to Brandreth’s suit must be served on its attorneys by January 6, 2011.
Charles Morrison is a member of the Chapter’s Adirondack Committee and coordinator of the Public Navigation Rights Project. For information: CharlesCMorrisonJr@gmail.com, or 518-583-2212.