Paddler loses ruling in creek access case
“Navigable in fact” argument has been debated for several years
A state judge has ruled against a canoeist who paddled an Adirondack creek claimed as private property, the latest twist in a nearly decade-long legal challenge.
State Supreme Court Justice Richard Aulisi ruled Thursday in favor of landowners who had sued Phil Brown, former editor of Adirondack Explorer magazine, after he paddled a remote creek in Long Lake, Hamilton County, in 2009 that adjoining landowners argued was not open to the public.
The challenge was based on the legal concept of whether a body of water is “navigable in fact,” meaning that it has been or could be used for travel or commerce. Brown was sued by the Brandreth Park Association and Friends of Brandt Lake, which represents landowners around the creek that claim it is closed to public access.
Aulisi ruled that Shingle Shanty Brook had no history of commercial use, so the landowners could block access to it. He also rejected evidence offer by Brown’s defense that paddlers in the Lake Lila and Little Tupper Lake area contributed about $680,000 in spending in the region in 2017 so the Shingle Shanty
The challenge was based on the legal concept of whether a body of water is “navigable in fact,” meaning that it has been or could be used for travel or commerce.
Brook had a commercial impact.
“This court is not satisfied that the evidence indicates that just because the disputed waterway is accessible to the public, it will generate additional paddler spending — as it appears that said spending, if at all, would likely occur regardless,”
the judge wrote.
“This court does not find that paddler expenditures (i.e., gas, food, etc.), are evidence of the practical utility of the disputed waterway for trade or travel,” he wrote.
Dennis Phillips, lawyer for the plaintiffs, said the ruling reflected “common sense in determining that the passage provides no practical utility to the public as a means of transportation, a key factor in the right of access to surface waters in the state.”
He called the matter “resolved.” John Caffry, a Glens Falls lawyer representing Brown, said a potential appeal of the ruling is under review.
Aulisi refused to award Brandreth Park/friends of Thayer Lake any compensatory or punitive damages from Brown.
Previously, the case had gone to the state’s highest court, the Court of Appeals, which had ordered it back to state Supreme Court to rule on the “navigable in fact” issues.
“I am disappointed in the judge’s decision,” said Brown.
“As many witnesses testified at trial, the waterway in dispute can be easily traveled by canoe or kayak, providing a paddling route between two parts of the public forest preserve.”