Thou shall not covet thy neighbor’s … waters

I first learned of the court decision regarding navigation rights via an email from John Warren of the Adirondack Almanack, which read simply, “Explorer Wins Paddler’s Rights Case.”

His note offered, “FYI, Adirondack Explorer Editor Phil Brown did not commit trespass in 2009 when he canoed over a waterway through private land, because that waterway was legally open to the public, a state Supreme Court justice ruled in a decision released today.”

Brown, a Saranac Lake resident, was in court because the Brandreth Park Association and Friends of Thayer Lake had sued him for trespassing after he paddled on waters surrounded by their lands. The case stems from May 2009, when Brown paddled Mud Pond and Shingle Shanty Brook as part of a multi-day trip from Little Tupper Lake to Lake Lila, which connect through a series of streams, ponds and canoe carries.

Most of the trip is in the state-owned William C. Whitney Wilderness, and there is a canoe carry on state land around the waters in question.

A lawsuit was filed in November 2010 after Brown wrote about his experiences in the Explorer.

I expect most defenders of wild places would consider it contrary for an environmental advocate to lobby for a law that allowed unlimited public access, and unrestricted commercial use of some of the most pristine waters and remote wild lands in the Adirondacks.

It would appear even more unlikely that a responsible advocate for wilderness preservation and biological integrity would want the public tramping and paddling unfettered through lands and waters that, as a result of private stewardship, have remained relatively untouched by the hand of man for over a century and a half.

It would seem even more irresponsible if the same advocate realized that public access could result in an unlimited number of commercial outfitters guiding large groups of paddlers through a privately protected corridor that had been donated for scientific research.

Even more astounding, would be the audacity of an advocacy group to photograph, publicize and publish a map that illustrated an actual route of trespass over private lands.

At first glance, it would seem incredible. However, a second glance would reveal the effort was a copycat criminal attempt.

The original effort, a test case organized by paddling advocates and backed by The Sierra Club occurred in 1991, on a section of the South Branch of the Moose River that ran through a remote parcel of the private Adirondack League Club, near Old Forge.

Sierra Club sued the paddlers, and despite a lengthy trial, the case was left unsettled for years due to an unresolved definition of a legal term used to define waterways as being “navigable in fact.”

Finally, after seven years, the court did affirm that paddlers had the right to navigate rivers and lakes that pass through private lands, as long as the route begins and ends on public lands. The case also established the public’s right to cross over private lands to carry over, around or through any man-made or natural obstacles, such as low bridges, rapids or waterfalls.

The decision in the Moose River case was essentially a non-decision, as the term ‘navigable in fact’ was left ill-defined. The definition remained in a state of flux, until another test case was initiated by Brown.

In the most definitive case to date, Brown chose to trespass on a route that took him through a section of Shingle Shanty Brook, which is encompassed within the sprawling 100,000-acre private Brandreth Park near Raquette Lake.

Brandreth Park has been in the hands of the same family since 1848. In recent years, they had purchased the Shingle Shanty Brook parcel, which encompasses about 14,000 acres. The new parcel was intended to serve as a buffer between the private park and the state’s new Whitney Wilderness.

Following the purchase, the property was donated to create the Shingle Shanty Preserve, which has been dedicated as a biological research station to monitor the effects of climate change on the pristine environments of the Adirondacks.

I asked Brown if he believed it was within his journalistic license to trespass on such pristine private lands and waters in order to get a story.

“As far as the legal consequences, I didn’t think I would get sued. I thought I had a right to do a story,” Brown said. “I wanted to find out if it was navigable, and it was a Catch-22, since you have to paddle it to see if it can be done.”

Brown paddled the route in the spring when the water was still high, but he was forced to carry around a short section of rapids. He could have avoided the rapids and private lands in general if he had taken a designated public route that the state Department of Environmental Conservation has established in the area.

When I asked him if the private route was shorter or easier than the designated public route, Brown explained, “I’ve never done the (public) route, so I don’t know, but it includes a long carry.”

I wondered how Brown could gauge which route provided the easiest passage of travel, after he admitted he had never traveled over the state carry. But before I could ask, he continued, “I went down there with the intention to cover the (private) route. I didn’t think I was trespassing. I knew it was private land. I wasn’t looking to be arrested or sued, it wasn’t my intention. It was not intended as a test case.”

I questioned his intent, asking, “You really didn’t think it was private land? You had a photographer in tow.”

“No, I thought I had a right to do a story,” he explained. “Who decides who’s right? The judges said I had a right. I went down there as a journalist to write about the issue.”

In his Explorer article, there is a photo of a rope spanning the channel of Shingle Shanty Brook. Hanging prominently from the line, are two “No Trespassing” signs.

After several days of testimony in the Brandreth Park lawsuit against Brown, the court decided in favor of the public’s right to paddle (i.e. trespass) through private property.

If the Brandreth v. Brown decision is upheld on appeal, the law may open up a variety of private rivers, lakes and ponds that connect historic routes of travel that had once been utilized for commercial purposes.

The decision may also redefine the definition of commercial use to include activities such as trapping, hunting, fishing or even guided recreational pursuits.

With the potential for several vast tracts of paddling lands soon to be added to the Adirondack Forest Preserve, we should question the need for paddlers to trespass on private lands, especially when the majority of large landowners have proven to be excellent stewards of the lands and waters in question.

Who will be the best caretakers? The private owners or the numerous packs of yahoos who may soon be traveling through?

The issue isn’t really about access. Paddlers have easy access to a wide variety of waters, with nearly 2,000 miles of rivers and streams in the Park.

To me, the effort indicates a lack of common courtesy and a profound disrespect for fellow outdoors men and women, and the families that have kept the private lands pristine.

With public access, there will be no way to prevent the introduction of bass, trash, invasive species and whatever else public travelers care to leave behind.

Collectively, I hope paddler rights enthusiasts reconsider what they have wished for. It’ll be interesting to see what the formerly protected places look like in 10 or 20 years from now.

Very few folks willingly trash their own land, but far too many believe it’s all right to do so on state land, or anybody else’s.

I expect there will be some very heated discussions between landowners and paddlers in the near future, and I certainly don’t care to be involved in such meetings.