Old-school approach may be the best course
In last week’s column, I wrote a story about a canoe trip that Phil Brown, editor of Adirondack Explorer magazine, undertook through private property.
Brown has been “testing the waters” for several years in an effort to research the progress of the status of navigable waterways and the paddlers’ rights controversy. In order to conduct his research, Phil has previously ventured through private lands and waters, which he believes are recognized as or should be considered to be open to the public.
In this regard, Phil has certainly done his homework. He has completed numerous exploratory expeditions and paddling trips, including an extended journey on the Beaver River from Lake Lila to Stillwater Reservoir, a trip that took him through the private confines of Nahasane Park.
He has also published numerous stories on the subject. He has become a real expect on the topic.
Unfortunately, I cannot say the same for my research. Last week’s column included several glaring errors regarding the facts surrounding efforts of the Sierra Club and the ongoing issue of the paddlers’ rights campaign. I regret the errors.
In the article, I claimed that Brown was involved in a “copycat criminal attempt.” I based the claim on the appearance that Brown was sued by landowners, just as a similar group of paddlers had been sued by the Adirondack League Club for trespassing on a private section of the Moose River.
I was wrong, and I apologize to Phil for the claim. Even though I believe Phil openly violated provisions of the trespass law in an effort to paddle the Shingle Shanty Brook, which included taking photographs, he was not charged with any criminal offense for his actions. The action resulted in a lawsuit by the private landholders.
I’ve been involved with the issue of paddlers’ rights since the early 1980s, and at one time I was a proponent for public access to private waters. However, over the years my opinion has changed considerably due to experiences in the field and on the water.
There are several factors that have changed my viewpoint, one of which has been a burgeoning group of paddlers who continue to press their demands to open private waters to the public.
In the early days of the effort, the litmus test for deciding whether such waters could be considered navigable was based on commercial use. The question often asked was, “Were the waters ever used for commercial purposes, such as driving logs to the mills?”
It was a fact that was easy to determine on most of the larger waterways of the Adirondacks. In fact, the Raquette River was one of the first waters in the state to be deemed a state highway.
More recently, the bar of determination has been lowered, likely as a result of having so many barristers involved in the decisions. However, the scope of the rulings continues to be contested by several large landowners.
Although the legal definitions may have turned in favor of public rights of passage, I have a difficult time digesting the lack of common sense, common courtesy and moral issues that should also be considered part of the equation.
In last week’s column, I questioned whether the effort constituted a trespass route. Trespassing is a violation of the New York State Penal Law, Section 140.05. It is considered a penal offense, and landowners had the right to have the violators arrested.
Phil had explained to me that when he conducted his trip on Shingle Shanty Brook, he believed he was not trespassing, and accordingly the courts later agreed.
Phil Brown did not engage in any criminal activity, and I regret any suggestions that he may have. Phil repeatedly stressed that he was acting within the established “rights of passage” and that his actions were conducted within the parameters of the law.
While his efforts may have been conducted in good faith, he did not take on the mantle of paddle-bearer solely for the benefit of the paddling community. By his own admission, he took the trip to write an article.
Unfortunately, the paddlers’ rights issue has been portrayed as a class struggle between poor, “common man” paddlers and wealthy, private estate owners. And certainly in some cases that may be the case.
However, many paddlers’ rights supporters fail to understand that those same private owners regularly provide considerable contributions to the local communities in terms of taxes. They also employ a lot of locals in a variety of positions, from caretakers to loggers to guides.
In addition, their contributions continue year round, with donations to the local ambulance squads, charities and theaters. They also pay hefty school taxes, even though most of them are only in the area for a month or two.
With all of the public waters currently available to paddlers, it doesn’t seem there is a case of not having enough places to paddle. It seems to be a case of wanting what somebody else has.
It is a much more convoluted issue than simply taking a spring paddle down a little private creek. The environmental and financial repercussions of the court’s decision may have long-lasting effects on many of the small communities that appreciate the good neighbors they’ve known for generations.
The late Bill Frenette, from Tupper Lake, had probably paddled more private waters than anyone in the Park’s history. How did he manage to do it?
His approach was simple, and non-threatening. He was a gentleman of the old school, and he treated the landowners with respect. He asked politely for their permission, and he was willing to take no for an answer.
As a result, he was often welcome to return at any time. The approach was not a “This is my river, too” demand. Rather, it was a neighbor asking a neighbor for a favor, with no intentions of writing a story or hauling a photographer along to document the trip.
It is difficult to understand how some paddlers can be dissatisfied with the right and privilege to have access to more than 2,500 lakes and ponds, and thousands more miles of public streams and rivers. Yet they still want more!
Maybe the old-school approach could still work, but it would likely leave a bunch of lawyers unemployed.
(Editor’s note: Since Mr. Hackett says he believes Mr. Brown violated Penal Law Section 140.05, here it is, in full: “Trespass. A person is guilty of trespass when he knowingly enters or remains unlawfully in or upon premises. Trespass is a violation.” [A violation is less serious than a misdemeanor or felony.] While the waterway Mr. Brown entered flows through private premises, he was asserting that the public has a legal right to boat on it – a claim that was validated in court. No criminal charge was filed, and with the civil suit, a judge ruled no trespassing occurred, upholding state policy and the outcome of the 1998 case of Adirondack League Club Inc. v. Sierra Club.)