Wilderness Waterways Open to Public in NY

     ALBANY, N.Y. (CN) – Private-property owners in a remote section of New York’s Adirondack Park cannot bar the public from ponds and streams that connect sections of a state wilderness canoe trail, a mid-level appeals court ruled.
     Because the so-called Mud Pond Waterway, though narrow and shallow in places, is “navigable-in-fact,” adjacent property owners cannot put up land signs or water obstacles to keep the public out, according to the Appellate Division of Supreme Court in Albany.
     The owners also must allow portage – land travel – on their property “where absolutely necessary for the limited purpose of avoiding obstacles to navigation,” the five-member court said in a 3-2 split.
     The decision stems from a canoe trip Phil Brown took in 2009 and wrote about as editor of the Adirondack Explorer, a bimonthly magazine and online news site.
     Brown questioned whether the waterway could be traversed, and took the 2-mile trip on ponds and streams to prove its navigability.
     The Mud Pond Waterway connects two bodies of water on state land that are part of a water route known as the Lila Traverse in the Adirondack Park’s Whitney Wilderness area, three hours northwest of Albany.
     The 6-million-acre Adirondack Park – about the size of Vermont – contains both state-owned and private land.
     For the Lila Traverse, popular with wilderness canoeists, the state Department of Environmental Conservation built a nearly 1-mile portage that stays on state land, avoiding the private property around Mud Pond.
     After Brown wrote about his trip, an association of property owners known as Friends of Thayer Lake LLC sued him for trespass in using the Mud Pond Waterway, including a short portage on their property that avoids an area of rapids.
     The owners also wanted the waterway declared not navigable-in-fact.
     The state and Department of Environmental Conservation joined Brown as defendants, arguing that the ponds and streams are navigable.
     State Supreme Court in Hamilton County sided with Brown, prompting the landowners’ appeal to the Appellate Division.
     Writing for the majority, Appellate Justice Elizabeth Garry agreed with the lower court that water on private property can be found to be “navigable-in-fact” based on whether it can be used for travel or trade.
     “Historically, this analysis turned on whether the waterway had the capacity to be used for commercial transportation,” she wrote.
     But since 1998, recreational use has also played into the determination. That year, the state’s high court, the Court of Appeals, found in Adirondack League Club v. Sierra Club that “a waterway’s capacity for recreational use is also significant in determining its navigability,” Garry noted.
     “The standard is phrased in the disjunctive, looking to the stream’s practical utility for ‘trade or travel,'” she said.
     That was established by the “voluminous record” in the Brown case, the court said – particularly the testimony of Donald Brandreth Potter, a member of the plaintiff group whose family has owned a hunting camp on Mud Pond since 1918.
     Potter’s ancestors bought the land from the state in 1851, according to court papers, and it has remained in the Brandreth family since.
     Potter testified that most of the ponds and streams in dispute can be used for canoe travel, and have been used for recreation by the landowners for many years. In the past, he said, his family brought supplies to the camp via the waterway, and in the 1920s and 1930s his father used it to transport furs from his trapping business to market.
     Garry rejected plaintiffs’ contention that Mud Pond’s remoteness – access to Potter’s hunting camp is by water only, not road – should be considered.
     “The standard for navigability-in-fact is more concerned with a waterway’s capacity and characteristics than its location,” she wrote.
     “The evidence establishes that the waterway has the capacity to provide practical utility to the public for both trade and travel,” she said, making it navigable and open to public use.
     Concurring were Presiding Justice Karen Peters and Justice Michael Lynch.
     In a dissent, Justice Robert Rose disputed the navigability finding, pointing to Mud Pond’s location far from people and commerce.
     “To conclude that such a remote and narrow stream may be navigable-in-fact without consideration of this broader context reduces the navigability test to an improper one of mere access and floatability – i.e., as long as any member of the public can successfully travel by canoe on the stream in question, the stream has capacity and is navigable,” Rose wrote.
     “Such a result does not adhere to the common-law standard,” he added.
     Joined by Justice John Lahtinen, Rose also expressed concern that the decision would “destabilize settled expectations” of landowners “by opening up remote, unpopulated, privately owned bodies of water as long as the public has some way, however arduous” to get to them.
     The majority, in a footnote, noted a similar concern, pointing out that before the state finished acquiring the private property that now comprises the adjacent 20,000-acre Whitney Wilderness Area in 1998, “there was no question that the [Mud Pond] waterway was understood to be private property, not subject to public use.”
     The footnote characterized that as “some troubling results left unaddressed.”

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