Friends of Thayer Lake LLC v. Brown

To be Argued by:
DENNIS J. PHILLIPS, ESQ.
(Time Requested: 30 Minutes)
APL-2015-00051
Hamilton County Clerk’s Index No. 6803-2010
Court of Appeals
of the
State of New York
FRIENDS OF THAYER LAKE LLC; BRANDRETH PARK
ASSOCIATION, CATHRYN POTTER, AS TREASURER; BRANDRETH PARK
ASSOCIATION RECREATIONAL TRUST, CATHRYN POTTER, AS INITIAL
TRUSTEE; AND WILLIAM L. BINGHAM, JR., INDIVIDUALLY AND AS A
REPRESENTATIVE MEMBER OF THE BRANDRETH PARK ASSOCIATION
AND A REPRESENTATIVE BENEFICIARY OF THE BRANDRETH PARK
ASSOCIATION RECREATIONAL TRUST,
Plaintiffs-Appellants,
– against –
PHIL BROWN,
Defendant-Respondent,
and JANE DOE (THE “LADY IN RED”) AND
ANY OTHER PERSON, KNOWN OR UNKNOWN,
Defendant,
– and –
THE STATE OF NEW YORK and the NEW YORK STATE
DEPARTMENT OF ENVIRONMENTAL CONSERVATION,
Intervenors-Defendants-Respondents.
REPLY BRIEF FOR PLAINTIFFS-APPELLANTS
MCPHILLIPS, FITZGERALD & CULLUM, L.L.P.
Dennis J. Phillips, Esq.
Attorneys for Plaintiffs-Appellants
288 Glen Street, Post Office Box 299
Glens Falls, New York 12801
Tel.: (518) 792-1174
Fax: (518) 792-1675
Date of Completion: October 29, 2015
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARGUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
POINT 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
BRANDRETH PARK (1851) AND ADJOINING LAKE LILA
TRACT (1787) AND ADJOINING WHITNEY TRACT (1787)
ARE LANDS WHOSE WATERS AND WATERWAYS NEVER
WERE AND ARE NOT NOW HIGHWAYS FOR COMMERCE
AND ARE NOT SUBJECT TO A PUBLIC EASEMENT AS
MEASURED BY THE NAVIGABLE-IN-FACT EXCEPTION
TO PRIVATE OWNERSHIP THAT TRUMPS THE
RIGHT TO EXCLUDE.
POINT 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
THE COURT SHOULD SEE THROUGH THE ATTEMPTS
OF THE DEFENDANTS TO “MAKE UP” COMMERCIAL
USE OF THE MUD POND WATERWAY SO AS TO SUPPORT
THEIR UNFOUNDED THEORY THAT THE RECREATION
OF CANOEING CAN ESTABLISH A COMMON LAW
EASEMENT AND A HIGHWAY FOR TRANSPORTATION
AND/OR COMMERCE.
A.
B.
C.
D.
E.R. Wallace Used Brandreth Park by Consent . . . . . . . . . . . . . . . . . . . . .
Wilderness Trapping is a Recreation and Potter’s Father
Was Not Engaged in the Fur-Trapping Business . . . . . . . . . . . . . . . . . . . .
David E. Cilley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Plaintiffs’ Personal Use and Enjoyment of the Mud Pond
Parcel Should Not be a Consideration When the Right to
Exclude is the Issue, as Opposed to Canoeing Use Supporting
Log Floatation or Bridge Taxation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
i
22
25
32
40
POINT 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
THE CENTRAL PREMISE OF THE COMMON-LAW
REMAINS THE SAME: IN ORDER TO BE
NAVIGABLE-IN-FACT, A RIVER MUST PROVIDE
PRACTICAL UTILITY TO THE PUBLIC AS A
MEANS OF TRANSPORTATION.
A.
B.
C.
Remoteness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Necessity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Beaver Habitat . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
POINT 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
A TAKING ISSUE IS, PER SE, BEFORE THE COURT
IN ANY CASE WHERE NAVIGABILITY-IN-FACT
IS TO BE DETERMINED, WHETHER BY
LEGISLATIVE FIAT OR BY A JUDICIAL TAKING.
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ADDENDUM E
Totten & Crossfield Purchase
ADDENDUM F
Map A, Outlying Camps
Photo 1, St. Agnes, Mud Pond Logs
Photo 2, Foot of Mud Pond Rapids, Mud Pond Logs
ii
TABLES OF AUTHORITIES
CASES
Adirondack League Club v. Sierra Club, 92 N.Y.2d 591 (1998) . . . . . . . . . passim
Adirondack League Club v. Sierra Club, 201 A.D.2d 225 . . . . . . . . . . . . . . passim
In the Matter of Adirondack Mountain Club v. Adirondack Park Agency,
33 Misc.3d 383 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Albright v. Mets, 217 A.D.2d 123, 126, 128-129,
Third Department (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
Bott v. Natural Resources Commission, 415 Mich. 45 (1982) . . . . . . . . . . . . 37, 39
Julie Schafler Dale v. Chisholm, 67 AD3d 626 (2009) . . . . . . . . . . . 49, 54 (chart)
William S. DeCamp v. Lemon Thomson,
16 A.D. 528, affirmed 159 N.Y. 436 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Economy Light and Power Co. v. United States, 256 U.S. 113 (1921) . . . . . . . . 28
Erie Railroad Company v. State Tax Commission, 266 A.D. 452 (1943) . . . . . . 44
Friends of Thayer Lake, et al v. Brown, 126 A.D.3d 22 . . . . . . . . . . . . . . . . passim
Hale de Jure Maris; Ex Parte Jennings, 6 Cow. 518 . . . . . . . . . . . . . . . . . . . . . . . 15
Hanigan v. State of New York, 213 AD2d 80 (1995) . . . . . . . . . . . . . 39, 54 (chart)
Helms v. Reid, 90 Misc.2d 583, 604 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38
The People of the State of New York ex rel Lehigh
Valley Railway Co., et al v. State Tax Commission,
247 N.Y. 9 (1928) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 44
Mohawk Valley Ski Club, Inc. v. Town of Duanesburg,
304 AD2d 881 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 (chart)
iii
Morgan v. King, 35 N.Y. 454 (1886) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Mountain Properties, Inc. v. Tyler Hill Realty,
767 A.D.2d 1096 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Stop the Beach Renourishment, Inc. v. Florida Department
of Environmental Protection, 557 U.S. 903 (2010) . . . . . . . . . . . . . . . . . . . . . . . 51
Town of North Elba v. William Grimditch, Jr.,
98 A.D.3d 183, 192 (2012]) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
REGULATIONS
6 N.Y.C.R.R. § 190.8(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
STATUTES
Environmental Conservation Law §15-2701 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3
Environmental Conservation Law § 15-2711 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
General Obligations Law §9-103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Navigation Law §2(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 35, 54 (chart)
MISCELLANEOUS
The Adirondack Atlas, Jerry Jenkins with Andy Keal,
Syracuse University Press, 2004 - Totten & Crossfield Purchase . . . . . . . . . . . . 10
Brady, Maureen E., Defining ‘Navigability’: Balancing State-Court
Flexibility and Private Rights in Waterways [March 5, 2015],
Cardozo Law Review, Vol. 36, p. 1415. Available at SSRN:
http://ssrn.com/abstract=2574356) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Donaldson, A History of the Adirondacks, 51-61 (1921) . . . . . . . . . . . 8, 10, 11, 16
iv
PRELIMINARY STATEMENT
This case is about paddling in a canoe in the Adirondack Wilderness, plain
and simple. More particularly, this case is about canoeing and hiking in the
remote back country of the Adirondack Mountains in upstate New York, but at the
same time it could be about canoeing and hiking in any part of the state where
there are small private brooks and small private ponds. This case is not about
logging, as was the case in Adirondack League Club v. Sierra Club, 92 N.Y.2d
591 (1998) (hereinafter “Adirondack League Club”) where the large and important
South Branch of the Moose River (the “South Branch”) was involved, large in the
sense that the segment of the river under review was 12 miles long with an average
depth of three to four feet, and important in the sense that the river was used over
the course of at least 50 years for floating logs to market; indeed, a “major driving
stream,” one of the top five in the Adirondacks. (Adirondack League Club v.
Sierra Club, 201 A.D.2d 225) Added to this physical and historical importance is
the fact that the South Branch is a legislatively-designated scenic river under
Article 15 of the Environmental Conservation Law’s Wild, Scenic and
Recreational Rivers System, which means, as determined by the Legislature that
the South Branch possesses “outstanding natural, scenic, historic, ecological and
recreational values,” and therefore is one of those “certain selected rivers of the
state” to be protected “for the benefit and enjoyment of present and future
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generations.” (Environmental Conservation Law §15-2701) Although regulatory
in purpose, this Court implicitly recognized the modern legislatively-designated
importance of the South Branch by quoting language from Environmental
Conservation Law - §15-2701 (Adirondack League Club at 603) At the same
time, this Court explicitly recognized that only “some waterways are of such
practicality” as to be “subject to an easement for public travel.” (Adirondack
League Club at 601)
In contrast to the South Branch, the small and shallow Mud Pond with an
average depth of 15.5 inches; the three quarter mile small and shallow Mud Pond
Outlet Brook tributary to Shingle Shanty Brook that Supreme Court found
measures an average of 16 feet wide and 17 inches deep with a minimum width of
12 feet and a minimum depth of 4 inches”; and the one mile stretch of Shingle
Shanty Brook that meanders through extensive wetlands and beaver country is not
susceptible to logging and is not of any legislatively-recognized importance. As
confirmed by the record and the decisions below, the Mud Pond Outlet Brook “has
never been used to float pulp or timber logs to market,” (R.22-Supreme Court) and
“it is incapable of transporting any timber, a traditional test for navigability.”
(R.2452 - Dissent)1 The “practical, commercial use of the South Branch” was
1
The Dissent in the Court below, Friends of Thayer Lake, et al v. Brown, 126 A.D. 3d 22,
will hereinafter be referred to as the “Dissent” and the Majority in the Court Below as the
“Majority.” The case shall be referred to as FOTL v. Brown.
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logging. (Adirondack League Club at 606) Here, there is no history of such use
and no physical capacity for such use.
Moreover, unlike the South Branch, the constituent water bodies of the Mud
Pond Waterway (two ponds and two brooks) do not constitute a river and are not
within the “certain selected rivers of the state” category that have a special
designation. [“No waterways occur within the Area that are classified under
Article 15-2711 of the Environmental Conservation Law as wild, scenic or
recreational.”] (R.1557; Environmental Conservation Law §15-2701) In reality,
there is no comparison between the South Branch, a river of great magnitude and
importance, and the insignificant and remote Mud Pond Waterway, but if there is,
the comparison is apples to oranges and freighted with imperfections. If a picture
is worth a thousand words, this lack of comparability can be visualized by viewing
a photo of the contested South Branch displayed in the record at page 1507, where
this Court nevertheless could not conclude that the river was navigable-in-fact and
a highway for transportation, with a photo of the Mud Pond Outlet Brook
displayed in the record at page 1608, where log floating did not and could not
occur. With logging off the table as an issue in the instant case, the log floating
expansion of the common law standard is not applicable and the question of
navigability reverts to the basic rule; that is to say, do “boats, lighters or rafts float
to market” over the Mud Pond Waterway? The simple answer is, “no,” but
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unfortunately the Defendant Brown (“Brown”) and the State Defendants (“State”)
are pushing a legislative agenda and are trying to fit the square peg recreation of
paddling a canoe into the round hole commercial foundation and structure of the
common law that otherwise justifies an exception to the right to exclude under the
navigability-in-fact doctrine. The two do not fit. The position of the Defendants
is that the floatability of a canoe and the recreational activity of paddling by itself,
without any objectively realistic commercial justification for the general public
and welfare, can open up waterways on private land in New York for public use,
thus abolishing almost two centuries of jurisprudence, and it makes no difference
whether the land over which water flows in certain circumstances is public or
private.
The State brief, for example, marches to the false drumbeat that the Lila
Traverse on State land and its attempted extension over the Mud Pond Parcel on
private land has been “regularly used for boat travel” and is fit for “regular travel
by boats,” and such terminology is used over 20 times in its brief.2 In fact,
however, the record shows that there is nothing “regular” about the Lila Traverse;
that canoeing is not ordinary travel but a “recreational activity”; and that “canoes,”
a specialty kind of boat, not boats in a general sense, were used on the Mud Pond
2
State brief 1, 4, 5, 15, 16, 17, 19, 20, 22, 23, 24, 30, 42
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Waterway. In reality then, the record does not show “regular travel by boats,” but
instead “irregular recreational activity by canoe in the wilds of the Adirondack
Mountains of New York. Aside from the State’s journalistic technique, which
may be designed to distract those who are inclined to be deluded, why the State’s
drumbeat? The answer is that the State needs the general classification of “boats”
to attempt to make its recreational case, rather than the specialty canoes, for no
reported case dealing with the navigability-in-fact exception in the State of New
York has trumped the right to exclude and open up the private land and waters of
the state because of the emotional wishes of a paddler.
Whereas the State brief avoids the reality of the exclusive use of the Mud
Pond Outlet Brook and Shingle Shanty Brook by canoes, needing boats in general
in order to tailor the jurisprudence of the waterways involving railroads and
bridges in the populated and developed areas of the state to the facts of the instant
case, the Brown brief needs a river, notwithstanding the findings of both the
Majority and the Dissent that the Mud Pond Waterway is not a river. 3 As a matter
of fact, with log driving out of the picture, most of the jurisprudence of the state
relating to the navigability-in-fact exception involves the major rivers or lakes
3
Despite all official records and the deposition of Potter, as well as the Opinion and
Order of the Appellate Division, Brown’s counsel has conjured up the notion that the Mud Pond
Waterway and the hydrological drainage of which it is part is a “river.” Disconnected from the
natural order of drainages, Brown’s counsel has a river flowing into a brook.
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across the state or the immediate tributaries thereof. No New York Court has
extended the navigability-in-fact exception to a remote pond in the middle of the
wilderness as small as Mud Pond, and a remote brook in the middle of the
wilderness as small as the Mud Pond Outlet Brook. Furthermore, no Court in New
York has found a waterbody navigable-in-fact on the speculation that the use of a
waterway on private land for purely recreational purposes to transport materials to
a tiny hunting camp in the middle of the wilderness, a rustic hunting camp
described as “that most remote end-of-the-line wilderness outpost,” and “a roof in
the wilderness, a place to get out of the rain and snow, and a place to get warm,”
“reveals that it has the capacity to transport similar goods for commercial
purposes.”(R.2236; R.2370; R.242-Majority)4 Such a speculation is
unprecedented and is arbitrary and capricious, as it does not even satisfy the
lowest evidentiary standard of having a rationale basis. Indeed, when the
historical and statutorily recognized private property right of canoeing is on the
block and a Court is attempting to assess potential traditional commercial use as
opposed to actual commercial use, the highest evidentiary standard of beyond a
reasonable doubt should be applied, for even in the case of Adirondack League
Club, when the actual use of logging was overwhelming, this Court sought
4
The State brief refers to this arbitrary and capricious speculation as “[t]his straight
forward reasoning....” (State Brief, 31)
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evidence” to compel a conclusion that practical, commercial use of the South
Branch” had occurred. (Adirondack League Club at 606)
The first point of this Reply Brief will break the circle of the circular
reasoning of Brown and the State to the effect that Plaintiffs should have had no
expectations for well settled principles of property law in New York. Thereafter,
arguments of both Brown and the State will be addressed. The conclusion will set
forth a structured chart in which to apply the common law to the facts of the case,
which should result in a determination that the Mud Pond Waterway as it runs
across Plaintiffs’ private lands is not a highway for commerce and is not
navigable-in-fact.
ARGUMENTS
POINT 1
BRANDRETH PARK (1851) AND ADJOINING LAKE LILA
TRACT (1787) AND ADJOINING WHITNEY TRACT (1787)
ARE LANDS WHOSE WATERS AND WATERWAYS NEVER
WERE AND ARE NOT NOW HIGHWAYS FOR COMMERCE
AND ARE NOT SUBJECT TO A PUBLIC EASEMENT AS
MEASURED BY THE NAVIGABLE-IN-FACT EXCEPTION
TO PRIVATE OWNERSHIP THAT TRUMPS THE
RIGHT TO EXCLUDE.
The State claims that ancestors of the Plaintiffs, in 1851, “never had reason
to believe that excluding the public” from Mud Pond, the small Mud Pond Outlet
Brook and the small Shingle Shanty Brook “was within their bundle of property
rights they acquired.” (State Brief, 43) The State then makes references to a book
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written by Alfred L. Donaldson, A History of the Adirondacks, 51-61 (1921), in
support of a totally convoluted argument to the effect that perhaps Brandreth and
the Plaintiffs must “bargain in the marketplace,” for the right to exclude and
attempt “to acquire an ownership interest in the neighboring property from which
the waterway [Mud Pond Waterway] could be accessed.” (State Brief, 44-45) Such
an argument demonstrates a lack of understanding and respect for private property
ownership in New York and is preposterous.
While Brown admits that the Majority shared the view of the Dissent that
the Opinion and Order would “destabilize settled expectations of private property
ownership,” and said that it, too, had “a concern that its ruling would destabilize
long-established expectations because it appeared unlikely that anyone would
have contemplated, prior to the State’s acquisition of the adjoining lands, the
Appellants’ property would be subject to a public navigation easement,” Brown
patronizingly concludes that “[t]his concern is unfounded.” (R.2445, footnote 5
[Majority]; R.2452 [Dissent]; Brown Brief 59-60) Brown’s rationale for this
conclusion is that a public navigation easement “merely lay dormant while access
to it was barred by private ownership of the adjoining lands.” (Brown Brief, 61)
Devoting point VII and nine pages of his brief to this proposition, Brown advances
the incredible theme that due to Brandreth’s involvement as a member of the New
York State legislature, that Brandreth and the Plaintiffs “would have been well
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aware that ‘long-established expectations’ regarding public navigation could
become disestablished.” (Brown Brief, 61-62) Moreover, after a twisted analysis
of various facts and law, Brown then patted the Majority on the back and stated
that the “Appellate Division’s concern, while understandable, was not wellfounded in either the facts or the law.” (Brown Brief, 67) Based on the immediate
record and the historical record introduced by the State, nothing could be farther
from the facts, the law or the truth of the matter.
Looking first at the Brandreth membership in the New York State Senate
and the legislative declaration that the 160-mile long and 297 average width of the
Racket River was a public highway for floating timber, Brandreth and the other
members of the Legislature would certainly have known that a legislative
declaration of navigability was an act of eminent domain that required
compensation, particularly in light of New York’s Constitution that added such a
requirement in 1846. (Morgan v. King, 35 N.Y. 454 (1866); Plaintiff’s Brief,
Addendum B, page 181) Indeed, the Morgan court specifically addressed the
eminent domain and just compensation issue of the Racket River and noted: “If,
prior to the passage of the act, the stream was private, in use as is property, the
Legislature could not take away the rights of those who were riparian owners, nor
subject such rights to a public use, created or authorized by the act itself, without
compensation.” (Morgan v. King, 35 N.Y. 454 (1866); Plaintiff’s Brief 182) With
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this knowledge, Brandreth surely would have known that the very small and
shallow Mud Pond and its outlet brook were private property, subject to
“destabilization” only if the Legislature paid just compensation.
As more convincing evidence of well-settled expectations, the historical
record as reported by Donaldson provides a history of the Totten and Crossfield’s
Purchase, the base land purchase for the Mud Pond Parcel and adjoining lands that
were formerly private but now owned by the State. (1 Donaldson, Chapter IX, 5161; The Adirondack Atlas, Jerry Jenkins with Andy Keal, Syracuse University
Press, 2004 - Totten & Crossfield Purchase [see Addendum E attached hereto]) As
contained in the record, the separate and distinct Lake Lila Tract adjoining the
Mud Pond Parcel to the north and northwest and containing Lake Lila is a
combination of Townships or parts of Townships 37, 38, 42 and 43 of the Totten
and Crossfield’s Purchase. (R.1808) In spatial relationship to the Mud Pond
Parcel in Township 39, portions of the Lake Lila Tract located in Townships 37
and 38 of the Totten and Crossfield’s Purchase are shown on the NYS DEC
Adirondack Map. (R.1811-1813) According to Donaldson as seen in Addendum
E hereof, Township 38 containing the bulk of Lake Lila was transferred from the
State into private ownership to Alexander Macomb in 1787, and according to the
record, it was in private ownership until it was conveyed to the State in 1979, a
period of 192 years of private ownership and a period of 222 years before the
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paddling assault on the Mud Pond Parcel by Brown in the year 2009. (R.1808; 1
Donaldson 59) During the 192 years of private ownership of the Lake Lila Tract,
no public navigation claim was made against the adjoining Mud Pond Parcel by
the owners thereof or by any member of the public to the effect of there being any
common law highway for commerce or highway for transportation originating at
Lake Lila, or any other place, and then running over the Township 39 Mud Pond
Parcel portion of Shingle Shanty Brook and the Mud Pond Outlet Brook outlet.
This makes all of the sense in the world, for it just takes a quick glance at the NYS
DEC Adirondack Map to see that as of April 30, 1985, both the Mud Pond Parcel
in Township 39 and the Whitney Tract in Township 36, to be covered next, were
private lands (colored in white), and therefore inaccessible to the public for any
objectively realistic commerce originating from the Lake Lila Tract. Moreover,
both before and after 1979, a wilderness paddler floating across Lake Lila and
canoeing up the Shingle Shanty Brook would have no public or private destination
for the transportation of people or property into the interior of the private
Township 39 owned by the Plaintiffs or the private Township 36 owned by
Whitney Industries. (R.1812) This fact was acknowledged by the Majority when it
admitted that: “The wilderness area was private owned before the twentieth
century, and there were no nearby roads or other means of public access....”
(R.2443; FOTL v. Brown, 126 A.D.3d 22, 29) Based on the reasoning of the
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Majority, if Brown had attempted to paddle up the private Shingle Shanty Brook
and the Mud Pond Outlet Brook between 1979 and before 1998 to reach Lilypad
Pond located on the private Whitney Tract in Township 36, he would have been a
trespasser, for Lilypad Pond was then “[a] body of water on private land that has
no inlet, outlet or public access - such that it cannot be reached without crossing
private land or cannot be used as a travel route to other destinations - is not
navigable in fact.” (R.2444; FOTL v. Brown, 126 A.D.3d 22, 30) Simply stated,
for a period of 211 years between the year 1787 and 1998, Lilypad Pond was a
body of water on private land that had no public access such that it could be
reached without crossing private lands and could not be used as a travel route to
other destinations. (R.2444) It is clear from the facts and common law that if the
State only owned the Lake Lila Tract but not the Whitney Tract at the time of
Brown’s paddling trip, the outcome of the case even for the Majority would have
been different; that is to say, the Mud Pond Waterway would not have been
declared navigable-in-fact because Lilypad Pond would not have been any kind of
a public destination that he Brown could paddle to or from. Upon reaching the
remote Lilypad Pond surrounded by the private Whitney Tract, Brown would have
had to turn around and go back to his starting point at the parking lot at Lake Lila
and no intervening private lands and waterways would be navigable-in-fact.
Before the purchase of the Whitney Tract in 1998, Brown would have failed all
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renditions of the navigability-in-fact test. If the Mud Pond Waterway were not
navigable-in-fact in 1979 and thereafter, it is not navigable-in-fact now.
Similarly, the separate and distinct Whitney Tract containing Lilypad Pond
adjoining the Mud Pond Parcel on the east is a combination of Townships 36 and
23 of the Totten and Crossfield’s purchase. (R. 1809) According to Donaldson,
Township 36 was also conveyed by the sovereign State of New York to the private
Alexander Macomb in 1787, a period of 211 years of private ownership before the
conveyance to the State, and a period of 222 years before the paddling assault on
the Mud Pond Parcel by Brown in the year 2009. It can be seen then, that at the
time of the Brandreth Letters Patent in 1851, adjoining lands had already been in
private ownership for 64 years, a substantial period of time to have expectations
about the ownership of private property in New York. (R.1796)
Moreover, prior to his purchase, Brandreth’s Township 39 had been
surveyed by John Richards, the Deputy State Surveyor, in 1821. (R.1158) As
written by Potter, the survey laid out Township 39 into 154 lots, “a fact that might
have caught the attention of any purchaser... and was officially put on file in the
next year.” (R.1158) Thirty years after the survey and the filing thereof, the deed
into Brandreth (the “Letters Patent”) made reference to the “Field Book and Map
thereof on file in our Secretary’s office,” and conveyed “all and singular the rights,
hereditaments, and appurtenances to the same belonging, or in any wise
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appertaining” except the “Gold and Silver Mines.” (R.1858 [1821 Map]; R.1796)
Based on the State survey and filed survey map, there were no exceptions noted on
the map for a highway for commerce in the vicinity of Mud Pond. Based on this
official record and evidence, Brandreth and his heirs were and are justified in
having the expectation that there are no waterborne highways for commerce or
common law trade routes affecting their current ownership.
Within the four corners of his 1851 Letters Patent from the State, Brandreth
would have felt secure. But on the ground, the physical characteristics of
Township 39 would also have justified Brandreth’s expectation that his property
rights would not become “disestablished.” Relative to this point, Brown
introduced into the record an excerpt from a book entitled, Brandreth, a History of
Brandreth Park, 1851-2010, whereby it was written that Brandreth’s “...Township
39 stood out. It was a headwaters tract with a handsome lake as its centerpiece. It
had no major water courses flowing into it but much water flowing out; and in fact
it contains the headwaters for three major rivers....” (R.1158) To be sure,
Brandreth chose wisely and picked the small upstream ponds and brooks that
would not be downstream and at the mercy of log floaters and the logging
industry. The physical characteristics and location of the Mud Pond Parcel are
such that Brandreth never would have expected his property rights to be
“disestablished” by log drives or by “boats, lighters or rafts” being floated to
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market. (Hale de Jure Maris; Ex parte Jennings, 6 COW. 518; Morgan v. King, 35
N.Y. 454 (1866). Log drives are downstream phenomena and markets are not
usually found in the remote mountain headwaters. Both Brown and the State are
way off base when they suggest that Brandreth should have known that his
property rights could become disestablished or that he and his ancestors had to
purchase more land to protect them. All of this begs the question: Did the State’s
1998 purchase of the Whitney Tract in its proprietary capacity, as opposed to its
sovereign capacity, take from the Plaintiffs’ their right to exclude trespassers from
crossing their private Mud Pond Parcel? The Dissent understood the history of the
area and pointed out that the land bordering the Mud Pond Parcel was historically
privately owned, “but Defendant State of New York acquired neighboring Lake
Lila in 1979 and the Whitney Wilderness area...in 1998.” (R.2446; FOTL v.
Brown, 126 A.D.3d 22, 32) The Dissent also noted that: “[d]efendants do not
dispute that it is only as a result of the State’s recent acquisition that the waterway
may be accessed from publicly-owned land...whereas they previously had no way
of accessing it.” (R.2446; FOTL v. Brown, 126 A.D.3d 22, 32) Even the Majority
admitted that “there is no indication of public use for attempts to gain public
access to the waterway until after the State acquired the wilderness area and
canoeists began using the Lila Traverse.” (R.2443; FOTL v. Brown, 126 A.D.3d
22, 30)
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Putting the question to rest, the common law is settled on the point: “as a
general rule, non-tidal waters, with the exception of those the Courts have deemed
to be owned by the state in its sovereign capacity, are owned in a proprietary
capacity by the riparian owners, whether such owners be the state, individuals or
other entities (citations omitted). Title to the beds of these smaller and less
important bodies of water passes into private ownership with a grant of riparian
land, absent an expressed reservation.” (Town of North Elba v. William
Grimditch, Jr., 98 A.D.3d 183, 192 [2012]) Applying the rule to both the Lake
Lila Tract and the Whitney Tract, the State divested itself of these tracts in 1787 in
its sovereign capacity by issuing Letters Patent, the ultimate form of land
conveyance from the sovereign, without reservation except for the gold and silver
mines with respect to Township 39, thus conveying all right, title and interest to
the Mud Pond Parcel. But when the State reacquired the adjoining Lake Lila Tract
and the adjoining Whitney Tract, it reacquired them in its proprietary capacity,
thus making the State a proprietary riparian owner and putting it in the shoes of its
private grantors and thus subject to the rules of the common law. (1 Donaldson 59;
Town of North Elba v. Grimditch, 98 A.D.3d 183,192) Following this rule to its
conclusion, the State acquisition of lands adjoining the Mud Pond Parcel did not
create any so-called “termini” in the middle of the wilderness, a consideration
incorrectly applied by the Majority to the remote land boundaries in the middle of
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the wilderness, and the State could not transform a small pond and two small
brooks that were not highways for commerce under the common law into
navigable-in-fact highways for transportation for the lobby of wilderness paddlers.
To do so would definitely destabilize well-settled expectations of private
ownership across the state.
Finally, Brandreth and the Plaintiffs are first in time and first in right
relative to the creation of the so-called Lila Traverse, a recreational wilderness and
pond-hopping canoe and hiking route that did not come into existence until after
the State acquired the Whitney Tract in 1998. As admitted by a State (DEC)
official, Christopher A. Amato, the then Assistant Commissioner for natural
resources, “[a]s shown on DEC maps, the canoe route traverses several ponds and
waterways and includes several portages, or canoe carries, of varying lengths.”
(R.272) Amato goes on to say that the canoe route “is described in DEC’s
brochure for the William C. Whitney Wilderness Area” and that it “traverses
rugged, remote back country and most paddlers take two or more days to complete
the route.” (R.273) Amato does not refer to the canoeists as “boaters” but tells it
like it is and properly characterizes them as paddlers.
Reflecting the newness of the canoe route, David E. Cilley (hereinafter
“Cilley”) referred to it as “a route only a few hardy paddlers have explored...but
first the State Department of Environmental Conservation must clear carry trails
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through dense spruce and brambly fields.” (R.1391; Plaintiffs’ Brief, 88-89) In his
Paddler’s Guide (not his “Boater’s” Guide), Cilley referred to the canoe route as
“wilderness paddling: rough, unmarked portages, mud...” and that “[p]ortages are
not signed,” although “...portages (#2-5) are expected to be marked and signed in
the near future. As early as early spring 2008 they are still unmarked except by
surveyors tape.” (R.153, 157) Brown, too, reflected on the newness of the canoe
route when he lamented, “[i]t’s a shame that more than a decade after the Whitney
purchase, the state has failed to properly mark the carry trails.... Though the lack
of signs and trail disks makes it look no one is taking care of this natural treasure.”
(R.1703)
But confirming the fact that the canoe route never existed as a highway for
transportation or commerce over either the Whitney Tract itself or over the
adjoining private Mud Pond Parcel before it was created by the State after 1998,
Brown wrote: “You won’t find this variation of the traverse in guidebooks or on
maps. As far as I know, this story contains the first detailed account of the route.”
(R.1702)
Neither the DEC Map nor the DEC brochure, nor the Cilley map, show the
new Lake Lila Traverse canoe route traversing the Plaintiffs’ Mud Pond Parcel
and Mud Pond Waterway. (R.220-223; R.1786, 1787a; Plaintiffs’ Brief Addendum
A, Maps 1 and 2) If the State had the slightest inclination to impose the newly
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created canoe route on the Plaintiffs’ Mud Pond Parcel, it would have the legal
obligation to disclose such a plan under the full environmental assessment form
pursuant to the State Environmental Quality Review Act, which it did not do,
followed by a hard look at all the facts and circumstances before giving itself a
free pass and issuing a negative declaration for the Whitney Plan. (R.1455-1461)
To the contrary, admitting that the newness of the pond-hopping canoe route was
confined to State lands, the State expressly supported its negative declaration by
stating that “[t]he development and designation of specific trails and trailheads
will eliminate conflicts and trespassing on private lands.” (R.1459) The creation
of an after-the-fact canoe route and the coordinated attack on the private property
rights of the Plaintiffs after 158 years of vested title does destabilize expectations
of private property across the state. The Mud Pond Waterway is private property;
it is not navigable-in-fact.
POINT 2
THE COURT SHOULD SEE THROUGH THE ATTEMPTS
OF THE DEFENDANTS TO “MAKE UP” COMMERCIAL
USE OF THE MUD POND WATERWAY SO AS TO SUPPORT
THEIR UNFOUNDED THEORY THAT THE RECREATION
OF CANOEING CAN ESTABLISH A COMMON LAW
EASEMENT AND A HIGHWAY FOR TRANSPORTATION
AND/OR COMMERCE.
In his Dissent in Adirondack League Club, Judge Bellacosa lucidly explains
what the Appellate Division did and what this Court said and meant with respect
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to the governing law principle used to determine whether a private waterway is
navigable-in-fact and, therefore, a highway for commerce open to the general
public. Judge Bellacosa stated:
“One facet of this case is relatively easy for me. I agree with the
governing law principle articulated in Judge Ciparick’s opinion for
the Court. The traditional viability test, used to determine
navigability-in-fact of a waterway, survives. (see, Morgan v. King, 35
N.Y. 454, 459), and is updated to include a modernized influx of
realistic recreational usage (citation omitted).” (Adirondack League
Club at 608)
In the context of Judge Bellacosa’s explanation, a look-back at the
Appellate Division’s decision in the case is also instructive, for it is clear that the
Appellate Division did not abandon the common law commercial use standard.
Rather succinctly, the Appellate Division stated:
“Rather than abandon the standard, however, we are of the view that
the recreational uses of a stream should be considered as relevant
evidence of the stream’s suitability and capacity for commercial use.”
(Adirondack League Club v. Sierra Club, 201 A.D.2d 225, 229-230)
The application of the above rule by the Appellate Division, as confirmed
by the explanation of Judge Bellacosa, was also clear: “The river’s capacity for
floating logs is supported by the recreational use of the river by canoeists.”
(Adirondack League Club at 231) In other words, logs float and canoes float, it’s
as simple as that, and the fact that a canoe could float on the river supported the
historical use of the river for the floating of logs where the only real issue in the
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case related to the traditional log driving rule of whether logs could be floated on
the river in its natural state. In the instant case, however, logs did not and cannot
be floated on the Mud Pond Waterway, which means that there is no “practical,
commercial use” in the sense of Adirondack League Club, so the floating of a
canoe on the waterway has no commercial use to support and, therefore, is out of
the common law equation as proof for navigability-in-fact.
Despite all of their writings to the contrary, both Brown and the State
understand the test as applied by the Appellate Division in Adirondack League
Club, and they know that without a substantial dose of commercial use to mix with
canoe floatation, that they are dead in the water with respect to their cause and
unsupported theories relating to a paddler’s universal right of navigation. Indeed,
Brown and the State were faced with a dilemma, as there was no evidence of any
historical use of the Waterway for commercial purposes, and there was no
evidence that any claim had been made for the Waterway to be a highway for
commerce throughout history. To overcome their dilemma, Brown and the State
have resorted to four diversions of false commercial use or capacity for
commercial use - red herrings by any other name - as a ploy to shroud their
purpose of having this Court abolish the historical and Constitutional constraints
of the navigability-in-fact doctrine, in order to delude the Court into a judicial
taking of the established property right of canoeing without just compensation.
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A. E.R. Wallace Used Brandreth Park by Consent
Despite the State’s assertion that the Waterway “has been regarded as
supporting boat travel since the 1870s” (State Brief, 20), and Brown’s assertion
that it was “popular with Adirondack guides and sportsmen” (Brown Brief, 29),
the guide cited by Brown and State, E.R. Wallace (“Wallace”), referred to the
Shingle Shanty Brook portion of the Waterway as an indirect and difficult route up
“a desperately crooked stream, with its navigation considerably obstructed by
‘flood-jams,’” and the Mud Pond Outlet Brook as a place where “boats are
generally towed or pulled ½ or 3/4 m. to the portage.” (Plaintiffs’ Brief, 42)
Supreme Court focused on this fact when it acknowledged that “the traverse of
Shingle Shanty Brook to Mud Pond as an indirect and difficult route in which
boats are generally towed or pulled to the bottom of the rapids.” (R.22) Consistent
with this historical record is the writing under Photo 2 included in Addendum F to
this Reply Brief, where Potter read the writing under the 1964 photo where from
St. Agnes (a canoe landing in the middle of Brandreth Park) his two sons “tore out
all dams, arrived in cold rain, wading much of the way.” (Plaintiffs’ Brief, 36)
Also consistent with the historical record is the testimony of Potter relative to the
need to keep the Waterway open for a period of “say 50 years, 60 years.”
(Plaintiffs’ Brief, 38) Even the Majority found that Potter routinely maintained the
Waterway by “removing fallen trees, vegetation and other obstacles that would
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otherwise block or narrow the channel.” And that “canoes are the only type of
vessel that can pass.” (R.2440; FOTL v. Brown, 126 A.D.2d 22, 27) These facts
do not support the State’s assertion of “regular travel by boats.”
More importantly, however, is the fact that Wallace made no claim to the
Waterway as a highway for commerce, and in his later editions of his Descriptive
Guide to the Adirondacks (the “Descriptive Guide”), he announced that the Mud
Pond Parcel and Waterway and all 24,000 acres of Brandreth Park were “no longer
open to the public, as the privilege was abused,” yet he thanked the “courteous
proprietors” of Brandreth Park for the “royal hospitality once received.”
(Plaintiffs’ Brief, 43) In effect, Wallace understood the common law of New York
and the fact that he was a recreational licensee for the use of the Waterway under
the modern equivalent of Penal Law §140.00 (“...with license and privilege unless
notice against trespass...is giving by posting in a conspicuous manner.”), but that
his license could be revoked at any time. (Plaintiffs’ Brief, 9-12) Although it is
clear that Wallace noted that the entire 24,000 acres was no longer open for
recreation, Brown has attempted to limit this prohibition against trespass to the
“grounds” of the Brandreth houses. (Brown Brief, 12) Where Brown came up
with interpretation is unknown, but it flies in the face of the interpretation of the
State’s expert, Philip G. Terrie, PhD, who stated that the Descriptive Guide “is
considered factually accurate, and it is my opinion that it is factually accurate.”
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(R.582-583) Moreover, it is expert Terrie’s opinion that “Wallace’s Descriptive
Guide is reliable.” (R.583) Brown is no expert, Terrie is, so Wallace’s statement
that “sportsmen will not trespass upon this preserve, which embraces “all of
Township 39 - some 24,000 acres” has to be interpreted for what it says, but not
for Brown’s spin on the statement. To be sure, Wallace considered the Mud Pond
Parcel to be private property and respected it as such by adding the note to his
Guidebook. Like Cilley in modern times, Wallace made no claims against
Brandreth for a highway for commerce across the remote wilderness private lands.
The Majority acknowledged that Wallace wrote about the Waterway during
the late 1800s while admitting that “the owners eventually withdrew permission
for entry,” and that there was “no indication of public use or attempts to gain
public access to the Waterway until after the State acquired the Wilderness Area
and canoeists began the Lila Traverse.” (R.2443; FOTL v. Brown, 126 A.D.3d
22,30) It appears that the Majority gave no specific weight to any late 1800s
permissive use of the Waterway based on Wallace’s Guide other than to mention it
in passing, whereas the Dissent was more focused and stated: “the proof that the
Plaintiffs’ predecessors allowed individuals to travel through the Waterway for a
period of time in the 1800s before closing access to it...merely reflects their private
property rights in the Waterway and does not establish any practical utility to the
general public for travel or transport.” (R.2452; FOTL v. Brown, 126 A.D.3d 22,
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37) Wallace’s late 1800s Descriptive Guide proves that the Plaintiffs’ right to
exclude the public from the Mud Pond Waterway was well-established, exercised
and respected in the 19th century and that canoe routes were not highways for
commerce under the navigability-in-fact exception. Wallace’s published gratitude
for his permission to use Brandreth Park would make no sense whatsoever if there
were any substance to Brown’s and the State’s theory that historic or newly
created and cobbled-together canoe routes are and always have been public
highways under the common law. Brown and the State fail to cite any case law
challenging the right to exclude from private property where the recreational
activity of canoe travel was involved. It is unfortunate that Wallace became one of
the red herrings in the case.
B. Wilderness Trapping is a Recreation and Potter’s Father
Was Not Engaged in the Fur-Trapping Business.
It is unfortunate that the Majority reached the erroneous conclusion that the
Waterway “saw some limited commercial use in the 1920s and 1930s when
Potter’s father operated a trapping business and sometimes used the Waterway to
transport furs to market.” (R.2442; FOTL v. Brown, 126 A.D.3d 22, 29) The fact
is that Potter’s father was employed by the Whitney’s at the time and, in that
capacity, he hired trappers to come into the private properties for the purpose of
trapping and nuisance control. However, the Waterway and the Whitney portion
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of Lilypad Pond was not necessary to be used for transporting the pelts, as the
pelts “might well have been packed out from Mud Pond...without going [over] any
water route.” (R.978) The pelts were taken out for sale for the benefit of the
trappers, not for the benefit of Potter’s father. (R.979) The erroneous conclusion
of the Majority reflects its willingness to be deluded by advocacy rather than
carefully scrutinizing the facts in the record, for there is nothing in the record to
support that either Potter or his father engaged in trapping to the degree that it
could be characterized under the common law standard as a “trapping-business.”
Morgan gives a little bit of guidance about what may constitute a common
law business: “It would be going beyond the warrant of either principle or
precedent to hold...so temporary, precarious and unprofitable.” (Morgan v. King,
35 N.Y. 454, 460) But the Navigation Law may be more on point as it addresses
“useful commerce of a substantial and permanent character,” but also echoing
Morgan with the language of “temporary, precarious and unprofitable.”
(Navigation Law §2[5]) Aside from the guides given by Morgan and the
Navigation Law, the real answer is that trapping is a recreation, as it is listed as
such in General Obligations Law §9-103, otherwise referred to as the Recreational
Use Statute, where trapping is “one of the recreational activities listed in the
statute.” (See Albright v. Mets, 217 A.D.2d 123, 126, 128-129, Third Department
[1995]) The same as canoeing, which is also listed as a recreational private
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property right, trapping is a recreation that fits under the umbrella of the
Recreational Use Statute, “the sole purpose” of which “is to induce property
owners to permit persons to come on their property to pursue specified activities,”
for the “Legislature intended to open up” suitable properties for public
recreational use by enacting the statute. (Albright v. Mets, 217 A.D.2d 123, 126,
129)
Although Brown’s primary argument in this case is that capacity for
commercial use is not a part of the test for determination that a private waterway is
navigable-in-fact, and therefore a highway for commerce or transportation based
on recreational use, and that proof of recreational use by canoes is enough to
establish a public easement, Brown advances the back-up position that if
commercial use were required, “The Mud Pond Waterway would meet it.” (Brown
Brief, Point VI, 43-59) Similarly, the State argues that the Mud Pond Waterway is
capable of commercial use, even though it “is not proximate to a marketplace.”
(State Brief, 29) Pushing the envelope on this alleged capacity beyond the realm
of credibility, without any proof in the record, the State argues that the Waterway
has a history of a fur-trapping business operated by Potter’s father. (State Brief,
31-32) Despite having no evidence in the record about what may constitute a furtrapping business, or what may constitute a commercial standard for such a
business under the strictures of the common law for such a business, the State
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beats the drum five times and alleges that Potter’s father operated a “fur-trapping
business.” (State Brief, 31-33) Brown is more reserved on the point and never
comes out and actually asserts a fur trapping business. Instead, Brown seemed to
be content with the erroneous finding of the Majority that the Waterway “saw
some limited commercial use in the 1920s and 1930s, when Potter’s father
operated a trapping business and sometimes used the Waterway to transport furs to
market.” (R.2442; FOTL v. Brown, 126 A.D.3d 22, 29)
Brown has cited Economy Light and Power Co. v. United States, 256 U.S.
113 (1921), a case involving interstate commerce and the construction of a dam in
violation of an Act of Congress on the Des Plaines River, an interstate river
flowing southward for 133 miles and eventually forming the Illinois River, for the
proposition that proof of the use of canoes for transporting furs and goods is
sufficient to establish a river as navigable-in-fact. (Brown Brief, 56) However, the
case reads that “canoes and other boats of various kinds were employed, having
light draft, but capable of carrying several tons each, and manned by crews of six
or eight men.” Moreover, the Court noted that the public interest in the river had a
very definite origin, the Northwest Ordinance of 1787 where it was declared: “the
navigable waters leading into the Mississippi...shall be common highways....” So,
as is the situation with many of Brown’s citations, there is usually the rest of the
story to tell. Surely, the Mud Pond Waterway is not an interstate river and does
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not fall under the regulation of an Act of Congress. Therefore, it has no
applicability to the case at hand.
Desperate to support the notion that fur trapping is commercial, Brown and
the State have attempted to exploit and manipulate the private and personal Potter
family diary kept at the rustic Mud Pond Camp and transform it, magician-like,
into a record that they assert supports a conclusion that the Mud Pond Waterway
was actually used for transport for commercial activities, and, in addition, has the
capacity to be used for transport for commercial activities. The State makes the
further assertion that Potter’s father would use the Mud Pond Waterway to make
part of the trip to market to sell pelts and that “Potter’s part-time trapping
business” suggests a “sufficiently full-time trapping business could use the
Waterway to generate significantly more income.” (State Brief, 31-33) The State
makes these assertions in spite of the detailed facts in Plaintiffs’ Brief that make it
absolutely clear that Potter’s father was not in the trapping business, detailed facts
presented by Potter under oath, the only person who had personal knowledge as to
whether or not his father was involved in the trapping business. (Plaintiffs’ Brief,
50-61) The summary of these pages of Plaintiffs’ Brief is that Potter’s father was
otherwise employed in the 1920s and 1930s, mostly by the adjoining Whitneys;
that the Mud Pond Camp was solely used for recreation, not business; and that no
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part of the Mud Pond Waterway provided access to any end market in any
direction.
Further realizing the need for commercial use of the Waterway to support
the cause, Brown distorted the Mud Pond Log entries relative to the recreation of
trapping and recharacterized the private diary as proof of “a significant activity on
the property.” (R.1847) Unrestrained, Brown then called it “a very significant
activity,” where “even a minimal amount of commercial activity would satisfy the
test.” (R.1848) Brown then itemized the entries in the Mud Pond Logs to attempt
to prove his pre-ordained conclusion of substantial income from trapping, but in
doing so, he really proved that trapping was nothing more than a temporary,
sporadic and unprofitable activity. Brown did not refer to the trapping as the “furtrapping business.” The proof of the recreation of trapping based on the record
Brown lifted from the Mud Pond Logs is charted in Addendum D of the Plaintiffs’
Brief. (Plaintiffs’ Brief, 189-192) Except for the year that Potter’s father came
back from World War II when he had some relative trapping success, the other
years show nothing but minimal activity and very, very short-term trapping
moments. Nevertheless, Brown jumped to the conclusion that “a significant”
recreational activity “demonstrates that the Waterways in question have ‘practical
utility to the public as a means of transportation’ and the ‘capacity for transport,
whether for trade or travel.’” (R.1847)
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To be sure, trapping is a recreational activity, and as a listed activity in the
Recreational Use Statute, trapping on one’s land is a private property right. For
Brown and the State to make the leap from the use and enjoyment on private
property of the private recreation of trapping to the legal conclusion that the
Waterway on that land is a highway for commerce as measured by the
navigability-in-fact exception is an absurdity; that is to say, another red herring.
On the other hand, the common sense of the Dissent in terms of understanding
how landowners in Upstate New York and the Adirondacks use and enjoy their
private property, reinforces confidence in judicial wisdom, for the Dissent
concluded “that individual members of Plaintiffs used the Waterway for hunting,
trapping and carrying supplies to their isolated hunting camp, merely reflects their
private property rights in the Waterway....” (R.2452; FOTL v. Brown, 126 A.D.3d
22, 37) All of the above aside, the real question is, so what? What if trapping is a
business? Landowners are allowed to conduct business on their lands for profit
without running the risks that the public will acquire any kind of right, title, or
interest in their lands. Apple growers can grow apples for profit without any
public intervention. Farmers can grow corn, wheat and hay and transport the crop
from Point A to Point B on their lands without worrying about public easement
rights. Adirondack landowners can harvest trees for profit without giving away
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recreational rights. The trapping issue is a big red herring and the Majority was
deluded by it.
C. David E. Cilley
David E. Cilley (hereinafter “Cilley”), the owner of a business that rents
canoes and paddling equipment, guides clients and sells canoes, has “never been
on the Mud Pond Waterway.” (R.455-456) Cilley’s main office and store are in
Saranac Lake, New York, a considerable distance away from the Whitney
Wilderness. (R.456) Cilley published the “Adirondack Paddler’s Map” in 2004
and the Adirondack Paddler’s Guide in 2008 and 2009. (R.457-458) Cilley states
that his map and book are recognized as a key resource for paddlers. (R.458)
Cilley states that “[c]arries are routine in the course of water travel in the
Adirondacks,” and that “carries of one-half to one mile long are common; and
carries longer than a mile are not uncommon”; and paddling areas in the
Adirondacks from pond to pond are “referred to by most paddlers as ‘pond
hopping.’” (R.460) It is known from the record before this Court that the Lila
Traverse has one carry of 1.75 miles and that the State carry from Lilypad Pond to
Shingle Shanty Brook is .77 miles, which means that these carries are within the
normal parameters as sworn to by Cilley. (R.565) In this respect, Cilley states that
the “carries on his loop are not unusual in length.” (R.462) Cilley’s involvement
with the Lila Traverse is set forth in Plaintiffs’ Brief in some detail. (Plaintiffs’
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Brief. 88-91) Significantly, in the year 2009 before Cilley submitted his affidavit
in the instant action, Cilley labeled the Mud Pond Waterway in his Paddler’s
Guide as being “private land.” (Plaintiffs’ Brief Addendum A, Mapset, Map 2)
Cilley has made no legal claim to the Plaintiffs’ Mud Pond Waterway; all he
has sworn to is this: “If the water route between Lilypad Pond and Shingle Shanty
Brook were open to the public, my clients and others could paddle the entire reach
between Lilypad Pond and Shingle Shanty Brook....” (R.464) Cilley states that the
“approach from Lake Lila would be good for those who want to experience the
remoteness of Little Salmon Lake.” (R.465) In other words, Cilley would like to
change the common law of New York based on a potential feeling of one of his
clients to “experience the remoteness.” The Dissent is dismissive of Cilley’s
proposal on the ground that it does not “prove the Waterway’s capacity for
common use by the general public.” (R.2452; FOTL v. Brown, 126 A.D.3d 22, 38)
The Majority, on the other hand, strays from the judicial function into the
legislative arena and speculates that “in this modern view of a waterway’s utility,
recreational and commercial uses are often intertwined” as illustrated by the
affidavit of Cilley, “who stated that his business now includes canoe tours in the
Wilderness Area, and that he would include the Waterway in this commercial
activity....” (R.2443; FOTL v. Brown, 126 A.D.3d 22, 29) The Majority has
misstated the Cilley’s sworn affidavit about “canoe tours” and erroneously
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concluded that canoeing the Lila Traverse, or canoeing, is a commercial activity.
A close reading of Cilley reveals the following facts:
1.
Cilley’s business “rents canoes and paddling equipment”; “guides clients”;
and sells “canoes, food, books, maps, and gear for camping and
canoeing/kayaking.” (R.456)
2.
Cilley has “led hundreds of people on trips....” (R.457)
3.
Cilley has done the Lila Traverse “at least eight times in several different
years.” (R.462)
4.
Cilley only guides “clients on that journey.” (R.463)
Firstly, Cilley does not say that he gives “canoe tours” as recited by the
Majority, for his business is to rent and sell canoes and stuff or to guide clients.
But leading and guiding a client is not transporting a client; the clients do not
become passengers in Cilley’s canoe; they do the paddling themselves, which is a
recreational activity, not travel in any ordinary sense. As Cilley states, whether or
not guided, that making the Lila Traverse all on State land “gives my clients a
great sense of enjoyment and accomplishment” and it would be good for some “to
experience the remoteness.” (R.462, 465) This is not “practical utility to the public
as a means of transportation,” or the “touchstone” of “practical usefulness to the
public as a highway for transportation.” (Adirondack League Club v. Sierra Club,
92 N.Y.2d 591, 602-603) This is not Cilley transporting his clients as passengers
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across the wilderness. This is a different kind of transport, one where the client
does the paddling as a recreational activity while being transported by emotion to
the feeling of “remoteness” and “sense of enjoyment and accomplishment.” Or, as
Brown stated without having Cilley guide him, “closeness to nature, everchanging scenery, remoteness from roads.” (R.1704) So this is not the kind of
transport or transportation that forms the foundation of New York’s navigabilityin-fact doctrine. It is something different. It is something else. It is a feeling. But
feelings and wishes of a few should not topple the established property law of
New York and move the property right of canoeing into the public domain.
Secondly, Cilley says nothing in his affidavit about economics, whether
adding the private Mud Pond Waterway to the public Lila Traverse would be
profitable or would make any difference to his bottom line. The Legislature’s
guidance on this subject would be “useful commerce of a substantial and
permanent character,” but not one that is “temporary, precarious and unprofitable.”
(Navigation Law, §2[5]) The Majority missed this concept and requirement but
the Dissent realized that something unprofitable would most likely not justify a
“stream a public highway.” (R.2450; FOTL v. Brown, 126 A.D.3d 22, 36)
Contrary to Brown’s assertion that Cilley’s affidavit could be used to prove
navigability-in-fact, there is no such proof in this record. (Brown Brief, 58) It is
submitted that if this Court were to revisit the fact that canoeing is a statutory
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recreation in New York, and the fact that a canoe is a “pleasure vessel,” mostly
self-propelled (but not a customary mode of trade and travel), as well as
considering that the act of paddling a canoe is a recreational activity that unto
itself produces physical and emotional rewards, that this Court would be less
inclined to put canoeing into any commercial classification.
Addressing the point, a professional economist member of the Plaintiffs’
(“Bradford”) saw “no relationship or relevance” between Cilley’s business and the
Mud Pond Parcel. (R.1830) Bradford is of the opinion that the “Whitney
Wilderness and the ponds and waters of the Mud Pond Parcel are not essential” to
any outdoor recreational business “and it cannot be established that any of those
businesses will sell one more canoe or kayak because of the existence or nonexistence of access to the Mud Pond Parcel.” (R.1831) Bradford asserts that the
Plaintiffs are not charged with helping Mr. Cilley in the running of his
business...nor do they have the obligation to make any contribution of their
recreational rights in the Mud Pond Parcel” to him. (R.1831) Bradford further
states that the State has contributed to Cilley’s business by the acquisition of the
Whitney Wilderness and that Cilley “has the freedom to become content with what
he does have, as opposed to what he does not have.” (R.1831) Bradford sees no
cause and effect, no direct link, no substantial nexus between the business of
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Cilley and “the navigability for commerce standard for public entry on
waterbodies such as those on the Mud Pond Parcel.” (R.1832)
In the context of the above, if Cilley’s business were deemed to be a
commercial activity by the State with respect to Cilley’s presence or guiding
across the Lila Traverse on the Whitney Wilderness, which it is not, Cilley would
be prohibited from using the Lila Traverse in his business. (6 N.Y.C.R.R.
§190.8[a]; Plaintiffs’ Brief, 87-88) If Cilley’s business of renting canoes to
individuals for use on the Lila Traverse, or leading paddlers on the Lila Traverse,
is not a commercial use in the eyes of the State as a matter of law, it cannot be
viewed as a commercial use with respect to the adjoining Mud Pond Parcel. The
State cannot have it both ways; there cannot be a double standard. As a Michigan
Court stated in the context of a similar challenge to its common law, “The state
must be honest.” (Bott v. Natural Resources Commission, 415 Mich. 45 [1982])
As for the Majority heralding a “modern view” of a waterway’s ability,
there are no “evolving necessities and circumstances” that “may warrant a
different emphasis regarding” the Mud Pond Waterway’s usefulness, as the State
Legislature has adopted the Adirondack Park State Land Master Plan (the “State
Master Plan”), which has been construed as having “the force of a legislative
enactment.” (Helms v. Reid, 90 Misc.2d 583, 604 [1997]; In the Matter of
Adirondack Mountain Club v. Adirondack Park Agency, 33 Misc.3d 383 [2011])
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With respect to “acquisition policy recommendations” for canoe route easements,
the State Master Plan is clear and reads as follows:
“9. Canoe route easements should be purchased to reopen
Adirondack canoe routes for non-motorized access in appropriate
areas of the Park.” (ASLMP, approved November 1987, updated
October 2011, p. 7)
With the Helms case (1977) above referenced preceding both the State’s
acquisition of the Lake Lila Tract in 1979 and the Whitney Tract in 1998, the State
must be charged with the knowledge that it had the obligation to purchase routes;
it could not take them. (R.1808-1809, 1825) Such a policy has been admitted to
by former DEC official, Morrison. (R.1825, 1649, 1684) After the above two
purchases that were combined to make the Whitney Wilderness, the State
continued to purchase canoe routes, as well as other lands, most notably the
69,000 acres of former Finch lands where the lands according to the press release
statement: “Paddling opportunities will be opened up on some of the wildest
stretches of rivers and pristine ponds and lakes in the eastern United States.”
(R.1825-1829)
In the context of the above State policy, the twice repudiated “Enforcement
Guidance Memorandum” which was based on contracted research by a law
professor and by research performed by DEC under the watch of Charles C.
Morrison, and which was distributed to enforcement officers across the state, is a
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violation of the policy of the State Master Plan, and also a violation of the doctrine
of separation of powers, for it was a directive from DEC to law enforcement
agencies having the force and effect of law and acted upon by the officers of the
state, as evidenced by its repudiation in Hanigan v. State, 213 A.D.2d 80 (1995)
(R.1381-1384). There is no doubt but what the DEC Enforcement Guidance
Memorandum was without any outside review and that it was arbitrary and
capricious and an abuse of discretion by the State. (Plaintiffs’ Brief, 126-129) A
so-called “modern view” was rejected in the neighboring state of Pennsylvania
where the Court said: “The definition of navigability is best addressed by the
Legislature due to the takings problem created by vesting title in the
Commonwealth to a vast expansion of navigable (public) waterways.” (Mountain
Properties, Inc. v. Tyler Hill Realty, 767 A.D.2d 1096 [2001]) In another Great
Lake state, Michigan, the Supreme Court was of the same mind. The argument
was that changes in property law were needed to meet “current public needs,” but
the Court declined on the ground that it had not been demonstrated “that a change
of the law is needed,” and then commented on rules of property law which were
proposed to be changed that had been fully established “for over 60 years, and the
underlying concepts were over 125 years.” (Bott v. Natural Resources
Commission, 415 Mich. 45 [1982]) Although out-of-state cases are not authorities
for New York, they do point out the slippery slope of changing the common law to
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the detriment of existing landowners and their expectations relative to their
property rights. In New York, as a matter of its acquisition policy, the public need
for recreational opportunities has been recognized, funded, and acted upon, as
evidenced by the two recent acquisitions involved in this case, the Lake Lila Tract
in 1979 and the Whitney Tract in 1998. Under these circumstances, it was not
necessary for the Majority to slip into the legislative realm and, in substance, make
a sea change in the New York common law shrouded in the red herrings set forth
above. Following the lead of the Dissent, this Court should summarily dismiss
Cilley’s affidavit as being nothing but a third red herring.
D. Plaintiffs’ Personal Use and Enjoyment of the
Mud Pond Parcel Should Not be a Consideration
When the Right to Exclude is the Issue,
as Opposed to Canoeing Use Supporting
Log Floatation or Bridge Taxation.
The Majority recognized that the Plaintiffs’ use of the Waterway “has been
almost exclusively private and recreational,” and that the Waterway was a
“primary means of traveling to Mud Pond Camp from other parts of their
property.” (R.2442; FOTL v. Brown, 126 A.D.2d 22, 29) In this regard, the record
shows that the main “other part” of their property is a point on the bank of Shingle
Shanty Brook in the middle of the property called “St. Agnes.”
St. Agnes is fully described by Potter as being “entirely inside of the
historical boundaries of Brandreth Park, all private land after 1851 and to date,
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and it is almost six miles from Brandreth Station and two miles from Brandreth
Lake.” Potter described St. Agnes as “a starting point and return for canoeing on
the Mud Pond Parcel,” but that “St. Agnes Landing was not the end of the trip to
get the deer and pelts out of the woods; rather it was the point of beginning for
another long journey on a private road inside Brandreth Park to Brandreth
Station.” (R.2371) To visualize the relationship between the location of St. Agnes
and the location of the Mud Pond Camp, Map A is included in Addendum F after
this brief. The map shows the spatial relationship between the two locations inside
Brandreth Park. (R.1612; R.1173; R.2371) For the sake of clarity, St. Agnes is
labeled Point “A” on the map and the Mud Pond Camp is labeled Point “B.”
Coming from the Mud Pond Camp to St. Agnes, Point B to Point A, Potter stated
that it “was the end of one tough haul and the beginning of another.” (R.2372)
Indeed, the overland trek to or from Brandreth Station to St. Agnes is private, a
route that the public would have no access to, and therefore the public could not
and has not had any ability to use the Waterway for going to or from a market
under the common law. This six mile trek by itself would break any chain.
Peculiarly, while recognizing that the use of the Waterway has been almost
exclusively private and recreational, with the further recognition that much of the
use “has been undertaken for recreational reasons such as hunting and fishing,” the
Majority then made the statement that “the family has also regularly used the
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Waterway for such utilitarian purposes as transporting goods and supplies to Mud
Pond Camp.” (R.2442; FOTL v. Brown, 126 A.D.3d 22, 28-29) This statement is
strange in the sense that it does not complete the sentence by stating that goods
and supplies were brought into the Mud Pond Camp for use at the camp for
recreational purposes, and for nothing else, as if to imply that private “utilitarian
purposes” are disconnected from recreational purposes, or perhaps to use the word
“utilitarian” because it sounds similar to the term “practical difficulty”?
It is to be expected that food and gear would be brought into the Mud Pond
Camp in order to engage in the recreational uses of hunting, fishing and trapping,
and in order to construct the camp in the first place, and it would be expected that
building materials would have to be brought in from the outside world. However,
as soon as those building materials crossed the private property boundary of
Brandreth Park or, upon consent, as soon as those building materials crossed the
private property boundary of Whitney Park with respect to that brief period in
1927 when Potter’s father was also employed by Whitney Park and certain
building materials were floated across Lilypad Pond, the external and public chain
of commerce was broken and everything from the moment of entering private
property was private. Going the other way from inside the private property to the
outside boundary lines, no goods and materials, deer hides or pelts entered into
any kind of public commerce until they reached a public highway, either a road in
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the case of Whitney Park, or the Brandreth railroad station in the case of Brandreth
Park, six miles from St. Agnes. The distinction between the internal use of private
property and external highways for commerce is recognizable and the Dissent
easily concluded that the recreational activities of the Plaintiffs merely reflected
their “private property rights in the Waterway.” This conclusion, as a matter of
law, is consistent with DeCamp v Thompson, 16 A.D. 528, affirmed 159 N.Y. 436.
(Plaintiffs’ Brief, 152-154, 173-176) The transportation of goods and materials to
build a hunting camp in the middle of the wilderness and to maintain and repair it
over the years, as charted in Addendum C of Plaintiffs’ Brief, cannot possibly
“reveal” that it has the capacity to transport similar goods for similar purposes,
particularly when there is no “to” destination for such goods and there is no
“from” destination to take such goods and materials from, unlike the facts of
Lehigh Valley Railway Co., et al v. State Tax Commission, 247 N.Y. 9 (1928), as
minutely analyzed in the record and argued by the Plaintiffs. (Plaintiffs’ Brief,
133-136, 138-139, 175, 177) Again, if a picture is worth a thousand words, the
photo of Potter’s sons bringing basic spring-beds into the Mud Pond Camp by
canoe in ankle deep water at the bottom of the rapids after wading much of the
way tells the story and leads to the legal conclusion of the Dissent. (Addendum F,
photo 2)
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There is no logging involved in this case, as there was in Adirondack
League Club, where the recreational use of the river by paddlers supported the
river’s capacity for floating logs. (Adirondack League Club at 231) Similarly,
there is no railroad bridge taxation to support, where the tributaries of the Hudson
River, a tidal river, the interstate Chemung River, and the navigable arms of the
sovereign-owned Cayuga Lake demonstrated extensive historical and actual
commercial use other than by canoes. (Lehigh Valley Railway Co., et al v. State
Tax Commission, 247 N.Y. 9 [1928]; Erie Railroad Company v. State Tax
Commission, 266 A.D. 452 [1943])
In the instant case, canoe floating would only support canoe floating, for
without the red herrings of Wallace, Potter’s father’s trapping and Cilley, this case
is reduced to the bare and essential question of whether individual members of the
public can use and enjoy the Mud Pond Waterway for canoeing by looping off the
1998 Whitney Tract onto private land, transporting themselves by self-propulsion
across the Shingle Shanty Brook, the Mud Pond Outlet Brook, Mud Pond and the
Narrows of Lilypad Pond, transporting themselves emotionally by the scenery,
solitude and remoteness, and then going on their merry way. Brown and the State
want to use the Mud Pond Waterway in the same way as the Plaintiffs, except that
they do not want to pay for it. The Mud Pond Waterway is private property; it is
not navigable-in-fact.
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POINT 3
THE CENTRAL PREMISE OF THE COMMON-LAW
REMAINS THE SAME: IN ORDER TO BE
NAVIGABLE-IN-FACT, A RIVER MUST PROVIDE
PRACTICAL UTILITY TO THE PUBLIC AS A
MEANS OF TRANSPORTATION.
A. REMOTENESS
Brown puts on his blinders and argues that remoteness, necessity and beaver
habitat are not relevant to the main issue before this Court; that is to say, whether
the Mud Pond Waterway has practical utility to the public as a means of
transportation. (Brown Brief, Point VIII, IX and XI) Brown argues that “so long
as a waterway provides a practical route between two points,” in this case between
two parking lots, “it matters not who will use it or how often it will be used.”
(Brown Brief, 71) Brown goes on to say that “a waterway’s remoteness enhances
its usefulness as a means for transportation and its desirability as a route for
recreational navigation.” (Brown Brief, 73) There is no doubt but what this is the
thinking of the wilderness paddler - the farther away from civilization and the
channels of regular commerce, the better.
One of the State’s main arguments is that the Waterway “need not have
proximity to a marketplace,” and then misinterprets Adirondack League Club by
quoting some dicta. (State Brief, 24) The State most likely is forced into this
position because, as a matter of law, it has confirmed the characteristics of the Lila
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Traverse by its wilderness designation under the State Master Plan - “a wilderness
area...is an area where the earth and its community of life are untrammeled by man
- where man himself is a visitor who does not remain.” (R.1408)
Citing Adirondack League Club, Brown argues that the issue of remoteness
was not decided by the Court, and, therefore, it is not an issue here. However,
nothing could be more directly related to the meaning of “practical utility for
transportation” in the common law sense, for the development of the common law
evolved from commerce and the need for the commercial development of the
State. The issue of remoteness did not have to be a factor in Adirondack League
Club because it was a given fact that the South Branch of the Moose River was
heavily used over the course of at least 50 years for floating logs to market. The
test of navigability in Adirondack League Club was the traditional log floating
test. If the Sierra Club could establish an easement by the traditional test of log
floating, then the Sierra Club would be able to use the easement for recreational
purposes. But it was not the recreation that could establish the easement.
In the instant case, no logs had been floated and cannot be, and the
Defendants are attempting to expand a newly created canoe route in the wilderness
of the Adirondack Mountains, the Lila Traverse, by imposing an easement on the
adjoining Mud Pond Waterway. Considering the remoteness and the wilderness
history of the Mud Pond Parcel and adjoining area, such a remote area is only
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suitable for limited outdoor recreation but has no practical utility for
transportation. The logging cases cited by Brown are not applicable to the issues
in this case where the Defendants are arguing that a joy ride in a canoe by Brown
can establish a common law easement.
B. NECESSITY
With respect to necessity, Brown has agreed that the word “necessity” was
used in the context of the overall needs of society, which led to the framing of the
test. (Brown Brief, 75) The Plaintiffs agree with this statement. The State refers
to the word “necessities” as dictum that “describes the policy reasons why the
adoption of the common-law rule made sense,” but then goes on to refer to the
“notion of necessity” as part of “that origin story” of Morgan v. King, 35 N.Y.
454. It appears that the State has transformed the entire foundation of New York’s
navigability-in-fact doctrine into a “notion.” As both Defendants want to shed any
principled reasoning for invading and taking private property rights in New York,
and substituting the fun of canoeing for over 149 years of the common law in New
York, it is understandable why they want to put to rest the importance of necessity,
the only reason for the common law navigability-in-fact doctrine in the first place.
The Plaintiffs have addressed the issue in their main brief. (Plaintiffs’ Brief,
129-133; Point 2, 143-147) It is respectfully submitted that necessity is a
component part of practical utility and its apparent abandonment by the Majority
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has resulted in the abolition, if not erosion, of the navigability-in-fact doctrine in
New York. This Court should resurrect the requirement of necessity and declare
that the Mud Pond Waterway is not navigable-in-fact.
C. BEAVER HABITAT
The Majority has stated that the standard is concerned with a Waterway’s
“capacity and characteristics.” (R.2444; FOTL v Brown, 126 A.D.3d 22, 30) Both
the Majority and Dissent agree that the capacity of the two brooks involved Shingle Shanty Brook and Mud Pond Outlet Brook - is for canoes. But the record
is filled with information about beavers and beaver habitat, the existence of which
goes to the issue of the Waterway’s characteristics and its practical utility for
transport. Generally speaking, beavers do not dam up large and significant rivers;
their habitat is more related to and suitable for small streams and ponds.
Brown argues that “where beaver dams cross rivers and streams, it is usually
easy to float over them, pull a canoe over them, or quickly portage around them.”
(Brown Brief, 78-79) By this statement, Brown shows a total disregard for
invading the natural regime. Forgetting that the Mud Pond Waterway is not a
river, Brown has also asserted that there are “no reported cases in which the flora
and fauna found in and near a river have affected the determination of its
navigability.” (Brown Brief, 79) Indeed, other than for logging, there would not
be any such reported cases, for never in the history of New York has a claim been
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made like the one now before the Court to the effect that a man in a lightweight
canoe - independent of any meaningful, objective and rational commercial use,
recreating on small brooks on private land in the wilderness - can establish a
public highway for transportation. In fact, as recited by the Dissent, “recreational
use alone is insufficient to establish that a body of water is navigable in fact.”
(Dale v. Chisholm, 67 A.D.3d 626, 627) (R.2447; FOTL v. Brown, 126 A.D.3d
22, 33) Moreover, as set forth in an earlier footnote: “The Decision of Adirondack
League Club v Sierra Club (supra) did not alter the established standard for
determining navigability so as to permit a determination of navigability based
solely upon a waterway’s suitability and capacity for recreational use.” (Hanigan
v. State, 213 A.D.2d 80, 84) At bottom, beaver habitat is a factor in the weighing
of practical utility, particularly where the record shows, as it does here, that the
Waterway flows through a highly protected environmental area. The Mud Pond
Parcel is a fragile resource area encumbered and protected by a “forever wild”
Conservation Easement. (R.1833-1835) Under the Conservation Easement, the
“Ecological integrity” of the Mud Pond Parcel is preserved and protected, meaning
that the property should be “as free from human manipulation and disturbance as
possible.” (R.1718) The Plaintiffs’ use of the Waterway is local, so they “are not
carriers of organisms or vegetation from outside of the Mud Pond Parcel area,” as
would be the case with a public highway. (R.1719) Beaver habitat in the context
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of the legally protected environment of the Mud Pond Parcel should have been a
major factor for the Majority to consider as it weighed the limited capacity of the
Waterway. Indeed, beaver habitat is reflective of the entire characteristics of the
Waterway and by itself could have been a reason for a declaration that the
Waterway is not navigable-in-fact.
POINT 4
A TAKING ISSUE IS, PER SE, BEFORE THE COURT
IN ANY CASE WHERE NAVIGABILITY-IN-FACT
IS TO BE DETERMINED, WHETHER BY
LEGISLATIVE FIAT OR BY A JUDICIAL TAKING.
As early as Morgan v. King, 35 N.Y. 454 (1866), this Court was concerned
with the relationship between private property and the eminent domain power of
the State. That concern has been charted in the Plaintiffs’ Brief. (Addendum B,
181-183) More recently, the concept of a judicial taking has been raised by the
Supreme Court of the United States and a plurality of six justices have endorsed
the concept as falling under either the Fifth Amendment or the Fourteenth
Amendment as a matter of either eminent domain or a violation of due process of
law. In the case at bar, the Majority has attempted to insulate itself from immunity
for a taking by saying that its determination of navigability-in-fact does not result
in a taking and does not alter private property rights. Until the Majority made
such a pronouncement, there was no judicial taking, but now there is and the issue
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has been raised in the Plaintiffs’ Brief. The takings issue as it relates to waterways
is very modern in that it provides a Court with external constraints, a new
development in the jurisprudence involving the balancing of private rights and the
public interest. A recent law review article explores the Constitutional constraints
in detail, particularly in light of Stop the Beach Renourishment, Inc. v. Florida
Department of Environmental Protection, 557 U.S. 903 (2010). (See Brady,
Maureen E., Defining ‘Navigability’: Balancing State-Court Flexibility and
Private Rights in Waterways [March 5, 2015], Cardozo Law Review, Vol. 36, p.
1415. Available at SSRN: http://ssrn.com/abstract=2574356) In the conclusion to
the Law Review article, it is stated: “...it is clear that some Constitutional
oversight is necessary to protect the owners of water rights and riparian land
against egregious uses of the doctrine.” It is submitted that the Opinion and Order
of the Majority is one of those “egregious uses of the doctrine,” for it has taken the
established and defined canoeing right of the Plaintiffs and put canoeing on the
private Mud Pond Waterway into the public domain. If this is not a judicial
taking, nothing is, and Plaintiffs should not be foreclosed from raising it before
this Court.
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CONCLUSION
The case now before the Court was spawned by Charles C. Morrison
(“Morrison”) when he used his position with the State to put into motion an
attempted change of New York’s navigability-in-fact doctrine so that the canoers
of the Sierra Club and the other outdoor organizations could paddle wherever they
wanted to (the “Cause”), regardless of the size of the waterbody whenever water
could float a canoe between two public roads or access portals that could be
elevated to the status of public access. (R.1639) By pushing the Cause within the
State, Morrison influenced the publication and distribution of the “Enforcement
Guidance Memorandum” above referred to, so that the Cause was broadcast to law
enforcement agencies across the State. (R.1636-1651) Morrison’s Cause was
rebuffed by the Legislature. (R.1641-1647) and the Courts, including this Court
when it reversed summary judgment in Adirondack League Club and did not allow
for the recreations of canoeing and kayaking, independently, to establish a
common law easement over private land.
Nevertheless, Morrison and the Sierra Club have kept the Cause alive, and
this time, stripped of any semblance of actual commercial use affecting the Mud
Pond Waterway, or real and meaningful capacity for future commercial use
(canoeing in the Adirondacks is a recreation in every sense of the word, whether
individually or in a group), the Cause is being put to this Court in a naked form.
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The question is, did Brown’s navigation over the private Mud Pond Waterway,
land and water considered to be private property by everybody until the year 2009,
confirm or create for the first time a public easement over the Mud Pond Parcel?
A structured analysis of the facts and circumstances of this case, assisted by the
chart below that unbundles the complexities of the navigational analysis, should
result in a finding that the Mud Pond Waterway is not navigable in fact. Reading
the chart from left to right for each use of a waterway will reveal the consequences
of a determination of navigability-in-fact, subject to the given fact that no stream
in New York has yet been determined to be navigable-in-fact by canoeing use
alone.
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WATERWAY
USE
DOES
WATERWAY USE
ESTABLISH NIF
EASEMENT?
IF NIF
EASEMENT,
IS
CANOEING
ALLOWED?
IF NIF
EASEMENT,
IS
PORTAGING
ALLOWED?
1
Navigation for
commerce
Yes
“A river is, in fact,
navigable, on which
boats, lighters or
rafts may be floated
to market” (Hale de
Jure Maris: Ex parte
Jennings, 6 Cow.
518; Navigation
Law §2[5])
Yes
Yes
2
Log floating in
natural state
Yes
(Morgan v. King, 35
N.Y. 454 [1866])
Yes
(Adirondack
League Club v.
Sierra Club, 92
N.Y.2d 591
[1998])
Yes
(Adirondack
League Club v.
Sierra Club, 92
N.Y.2d 591
[1998])
3
Navigation by
canoe for
recreation
No
(Hanigan v. State of
New York, 213
AD2d 80 [1995];
Mohawk Valley Ski
Club, Inc. v. Town
of Duanesburg, 304
AD2d 881 [2003];
Julie Schafler Dale
v. Chisholm, 67
AD3d 626 [2009])
No
No
This Court has been presented with the extreme case, the unprecedented
notion that the evidentiary standard for “practical utility for transportation” is a
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minimal standard, notwithstanding the Constitutional property rights at risk where
the standard should be a maximum standard, and individual canoeing for
recreation is the kind of transportation or transport envisioned by the navigabilityin-fact doctrine, a body of law that is not grounded in recreation but is firmly
based on economic necessity and commerce for the benefit of society as a whole.
If this Court adopts this extreme theory and determines that the recreational
activity of canoeing and its travel is sufficient to render a small and remote pond
and two brooks a common law public highway, such a decision will have adverse
consequences for an unknown and untold number of landowners across the State
of New York. The Opinion and Order of the Appellate Division should be
reversed and this Court should determine that the Mud Pond Waterway is not
navigable-in-fact.
Dated: October 29, 2015
Respectfully submitted,
Dennis J. Phillips,
McPhillips, Fitzge
288 Glen Street, P.O. Box 299
Glens Falls, New York 12801
Tel. #(518) 792-1174
DJP-10/29/15
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ADDENDUM E
ADDENDUM F