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-   -   AG intervenes in Shingle Shanty case (http://www.adkforum.com/showthread.php?t=15259)

adkeditor 02-24-2011 03:28 PM

AG intervenes in Shingle Shanty case
 
Find the documents here.

dundee 02-24-2011 04:20 PM

Cool!

daLunartik 02-24-2011 04:42 PM

:dance::dance::dance:

redhawk 02-24-2011 05:18 PM

This is what I find particularly of interest and strong for Phil's and now the states case.

Page 13 --------------------------------
"3. The 1851 deed by which the state of new york conveyed the Mud Pond Parcel to Plaintiff's claimed predecessot in title did not convey to the purchasers the public easement of the right to travel on navigable waterways."

4. Plaintiffs Friends of Thayer Lake, LLC took title to the Mud Pond Parcel by deed dated December 27, 2007, which deed acknowledges and states that it is subject to the right of the public to navigate the surface waters of Lilypad Pond,, Mud Pond, it's outlet, and Single Shanty Brook, and states that the deed was subject to any and all easements whether of record or not, and the right of navigability is such an easement"

---------------------------------------------------------------

Page 16 --------------------

"12. A waterway that is navigable-in-fact is considered a public highway notwithstanding that it's banks and beds are in private hands.
13. Waters are navigable-in-fact if they have practical utility for transport, whether for for trade or travel.
14. Recreational use of waters is within the traditional test of navigability"

----------------------------------------------------------------------

It also goes on to state that since outdoor recreation is a part of the Adirondacks economy as are Adirondack guides, it would also serve as a commercial use of the river.

I like that the state is now being proactive and suing them for the actions they have taken to deny the public access.

I think the irony here is that they may have opened up a can of worms with this uit that most property owners in similar situations feared. And if the plaintiffs lose, and are required to remove the signs and impediments to travel, the lawsuit will generate enough publicity to entice a great number of people to paddle the waters and see for themselves. That would mean that there would be volumes more traffic then there would have been had they been willing to reach a compromise, which the documents also make very clear they did not.

On the other side of the coin, if the plaintiffs do lose the case, I hope that the paddlers will respect the fact that they are only allowed to paddle through and portage and will otherwise respect the property owners legal rights. I also hope that the DEC will patrol those waters and enforce those rights. It's a 2 way street.

Hawk

fisher39 02-24-2011 05:20 PM

The plot thickens! Took them long enough. It would have been rather odd if they hadn't intervened, for obvious reasons.

pondhopper 02-24-2011 07:55 PM

Well, THAT ought to make Denny sit up & take notice.

Paradox6 02-24-2011 09:58 PM

Apparently the State agrees that the 1851 deed sets the time horizon for when navigability in fact is determined and they have raised the affirmative defense that the waterway was navigable in fact prior to that time. Want to see some proof, boys.

It's really pretty scurrilous when a party enters into settlement discussions with another party and then tries to bootstrap the settlement efforts into being part of their case. Even most lawyers think it is pretty slimy. Most judges won't allow it as it discourages anyone from settling and is generally inadmissible. But if the State really wants to go down that road, I want to hear their explanation about why the State/DEC paddlers asked permission from the Brandreths to paddle the brook, as referenced in earlier posts? I mean if they really believed in their own position, they would not have asked permission. They may regret opening the door to the settlement discussions.

One problem with multiparty defenses, is that the original defendants just lost control of any defensive strategy they may have had and now have to worry about what their new codefendant's have just done/will do in the future to trip them up.

So far, long on allegations, short on proof.

randomscooter 02-25-2011 08:29 AM

Quote:

Originally Posted by Paradox6 (Post 165351)
Apparently the State agrees that the 1851 deed sets the time horizon for when navigability in fact is determined and they have raised the affirmative defense that the waterway was navigable in fact prior to that time. Want to see some proof, boys.

etc, etc, ...

Finally somebody suggests that it's premature to celebrate. And far better stated than I could have done. :thumbs:

Me thinks that since the DEC weighed in on the issue the AG feels obligated to be part of the process. Just 'cuz the AG is involved doesn't mean the case is closed. Far from it. Remember, the AG is just a lawyer whose clientelle happens to be the state.

What worries me is that the plaintiffs may feel pressured to settle since they now are facing an opponent with bottomless (yeah, right) pockets.

Pumpkin QAAD 02-25-2011 10:02 AM

http://www.dec.ny.gov/regulations/58846.html

DEC was afraid of suppression of evidence due to unlawful inspection under their own guildelines.

However I am of the opinion they would not need permission but were being courteous. They don't need permission to enter private land. Another violation of rights that is funded by sportsmen and taxpayers.

Oh by the way so who pays for all these lawyers to file interventions, the DEC to investigate and then the subsequent litigation ?

great....

redhawk 02-25-2011 10:40 AM

Quote:

Originally Posted by Pumpkin QAAD (Post 165362)
http://www.dec.ny.gov/regulations/58846.html

DEC was afraid of suppression of evidence due to unlawful inspection under their own guildelines.

However I am of the opinion they would not need permission but were being courteous. They don't need permission to enter private land. Another violation of rights that is funded by sportsmen and taxpayers.

Oh by the way so who pays for all these lawyers to file interventions, the DEC to investigate and then the subsequent litigation ?

great...
.

If you want to put any blame for that, then blame it on the people who filed a suit rather then reach any kind of compromise.

If I read the documents right, two employees of the DEC, at the owners invitation, paddled Shingle Shanty Brook to determine it's Navigability. After doing so, the DEC informed them that Single Shanty was navigable-in-fact under common law and suggested that they work out a compromise.

The owners reply was to contact the state police and insist that Phil Brown be arrested for trespassing, even though the agency charged with enforcement had already determined that in their opinion it was a public waterway. When the state police refused the owners then filed a suit against Phil Brown.

So, blame away, but lets put the blame in the right place.

Hawk

Pumpkin QAAD 02-25-2011 11:13 AM

I was pointing out a government waste of resources not blaming citizens for the cause of it, but interesting way to twist my words around.

I'll happily pay my $150 bucks a year in license fees so lawyers can have fun with leases from 1851.

I'm sure we will be deleted shortly anyway, at least my posts.

Neil 02-25-2011 11:17 AM

Quote:

Originally Posted by Pumpkin QAAD (Post 165369)
I'm sure we will be deleted shortly anyway, at least my posts.

Only the personal barbs, jabs and smears get deleted.

fisher39 02-25-2011 01:47 PM

Quote:

Originally Posted by Neil (Post 165370)
Only the personal barbs, jabs and smears get deleted.

You should send a note to the AG about his press release! With its references to "intimidation tactics," "unlawful travel blockages" and "harassment," you'd think the property owners have strung razor wire across a major river with a long history of public use, are using motion sensors to play selected sound bites from Deliverance, and put up cameras to take pictures of paddlers for "Wanted: Dead or Alive" posters that they nail to trees on their property line and use for target practice.

Why can't the AG be civil and honest about this dispute, where two sides have a reasonable difference of opinion and are acting accordingly, which obviously has resulted in a conflict that everyone always knew could only be resolved in court? Browbeating by the AG is not going to help matters.

And why is the New York League of Conservation Voters making a statement on the matter? What possible good for the environment can come from increasing recreational access to this waterway, especially when it means setting precedent that will have to apply across the state.

Dustin 02-25-2011 02:02 PM

Quote:

Originally Posted by fisher39 (Post 165375)
You should send a note to the AG about his press release! With its references to "intimidation tactics," "unlawful travel blockages" and "harassment," you'd think the property owners have strung razor wire across a major river with a long history of public use, are using motion sensors to play selected sound bites from Deliverance, and put up cameras to take pictures of paddlers for "Wanted: Dead or Alive" posters that they nail to trees on their property line and use for target practice.

"intimidation tactics," - Postings and threatening people with lawsuits to scare them off the water.

"unlawful travel blockages" - Steel cables

"harassment," - Calling the NYS Troopers on paddlers when they weren't actually breaking the law seems to fit this bill.

How are these 3 items extreme exactly?

DSettahr 02-25-2011 02:05 PM

Quote:

Originally Posted by Dustin (Post 165380)
How are these 3 items extreme exactly?

It's easy to make those on either side of this issue appear vilified.

redhawk 02-25-2011 02:32 PM

Quote:

Originally Posted by fisher39 (Post 165375)
You should send a note to the AG about his press release! With its references to "intimidation tactics," "unlawful travel blockages" and "harassment," you'd think the property owners have strung razor wire across a major river with a long history of public use, are using motion sensors to play selected sound bites from Deliverance, and put up cameras to take pictures of paddlers for "Wanted: Dead or Alive" posters that they nail to trees on their property line and use for target practice.

Why can't the AG be civil and honest about this dispute, where two sides have a reasonable difference of opinion and are acting accordingly, which obviously has resulted in a conflict that everyone always knew could only be resolved in court? Browbeating by the AG is not going to help matters.

And why is the New York League of Conservation Voters making a statement on the matter? What possible good for the environment can come from increasing recreational access to this waterway, especially when it means setting precedent that will have to apply across the state.

The AG's office is just relating the facts of the case as they see them.

I guess it's all in perspective. Just as an example, those who were considered "Patriots" by Colonial Americans would by todays standards be called "Terrorists". I'm sure that there was a similar label applied in Revolutionary times.

It's clear that I am on the side that sees Shanty Brook as a public waterway, and I have made clear why i think it is so.

The AG's office had done the same as have the owners of the property. Each has stated their opinion and a preliminary explanation of what they feels back it.

Unfortunately today people seem to be uunable to accept any facts pertaining to opinions other then there own as fact. So they have to stoop to villifying the opposite party rather then being able to state their side of the case with some kind of proof to back them up.

Perhaps that is why there is such a need for the courts today. It seems to me that this has all been brought about because the owners are unwilling to accept any decision other then the one that is self serving.

One look at the history of this particular case makes that evident to anyone usig common sense and trying to be unobjective.

They sought an opinion from the DEC and got one. It was contrary to the result they wanted.
They were asked to try something on a trial basis to see if was viable, and possibly compromise. They chose not to.
In spite of being told that the DEC offered the opinion that the waters met the criteria for navigable-in-fact and that public access was illegal, they called the state police and tried to get the paddler arrested for trespassing.
In spite of a request by the DEC to remove the cable, posted signs and cameras to allow public access they refused to.
In spite of the fact that the DEC, the agency charged with classifying the streams and enforcing the rules, stating that paddlers could legally paddle the stream, they brought a suit against the paddler.

So, at every turn, the owners have resisted and had contempt for the decisions and the requests of the DEC.

The camera and the lawsuit are intimidation tactics.
The posted signs and the cable indicate contempt for the rulings of a state agency and an indication that they are somehow exempt from the laws.

Because of the apparent contempt of the rulings by the DEC the AG's office really has all the reason in the world to get involved in the case.

So, I don't see how the stating of the facts is all of the things you accuse the AG's office of doing.

Finally I'm also curious. Since the DEC is responsible for enforcement of whatever rules, regulations or laws relating to the Adirondacks, and since their testimony as to whether the streams meet the navigable-in-fact criteria (Which is really what is at the root of all this), what "expert" witness could the owners bring in with the qualifications to dispute the decision of the DEC?

Hawk

Neil 02-25-2011 02:35 PM

Quote:

Originally Posted by DSettahr (Post 165383)
It's easy to make those on either side of this issue appear vilified.

Yes, and instead of working together in good faith to find a solution to a problem the "participating" parties choose to "oppose" each other and expend great amounts of creative and intelligent energy puruing this non-productive exercise of mutual vilification.

It's called "how things get done".

Paradox6 02-25-2011 04:54 PM

Quote:

Originally Posted by Pumpkin QAAD (Post 165362)
http://www.dec.ny.gov/regulations/58846.html

DEC was afraid of suppression of evidence due to unlawful inspection under their own guildelines.

However I am of the opinion they would not need permission but were being courteous. They don't need permission to enter private land. Another violation of rights that is funded by sportsmen and taxpayers.

Oh by the way so who pays for all these lawyers to file interventions, the DEC to investigate and then the subsequent litigation ?

great....

Hogwash....they asked permission. The evidence would only be precluded if illegally obtained for an entry on private property w/o a warrant. So they still must believe the property is private. That explanation does not make one iota of sense.

They forgot to note that as part of the civil litigation they can request and would certainly obtain access to take photos, measurements, conduct surveys/engineering studies, almost any kind of non-destructive testing they could imagine, with no questions about exclusion. The Rules of Civil Procedure provide for it, in most cases, it is a matter of course.

Glenn MacGrady 02-28-2011 04:39 AM

I see from the defense fund thread that some of you have read my few postings on this issue on solotripping.com. I promised myself I would stay away from this issue, but I couldn't help reading the NYS AG papers that were linked in the OP here.

As background on me, I am a lifetime paddler and quondam member of the Sierra Club, the ADK and the AMC among many other outdoor and paddling organizations. I am a retired lawyer and law professor. Early in my career I litigated navigability cases in Florida, first on the side of the state (who wanted every puddle to be navigable) and then on the side of private individuals and developers (who wanted the Gulf of Mexico to be non-navigable). Later, I was an academic who published some lengthy legal-historical articles on the navigability issue.

I dislike litigation in general. It usually does nothing much but enrich lawyers. In the area of navigability, the outcomes can be very difficult to predict and the costs are not generally worth it, unless there are some big economic issues at stake.

And, having read a the AG's legal papers, I think economics are really what's at stake in the SSB case and what's holding up a settlement. I have no background in the case except what I read in these papers, which are incomplete excerpts from a lot of correspondence.

Nevertheless, it is clear from the Amato affidavit that a year ago, a very reasonable compromise was worked out in writing, allowing paddling for a test period of three years. But I ask myself, why would the clubs agree to this?

Both parties apparently characterized the proposal as "constructive", and then the club invited the DEC to paddle the disputed waters. Why, I ask myself? They surely know the partisan DEC reps are going to say it's navigable, which of course they did. What's going on that isn't being excerpted in the affidavit? The hunting club is being rather cooperative.

(Supposedly, all the letters were attached to the NYS AG affidavits, but they aren't in the PDF file linked in the OP here.)

Then I read an excerpt that says the club membership was going to vote on the compromise proposal. Then comes a letter from the club's lawyer's demanding that the DEC and State Police ticket paddlers and stop them from trespassing. Uh, oh. The compromise pendulum now seems to be swinging away. Why? I think that was just a legal gambit by the club to squeeze something out of the DEC and plaintiffs. What? What could the clubs want? I'm starting to get the feeling that they want some quid pro quo that must have been earlier discussed but has not been forthcoming.

Finally, the club sends a letter on September 3, 2010, which says in excerpted part that the club had met on August 7, 2010, to consider the DEC compromise proposal and "after due deliberation ... the idea of a public access agreement for no monetary consideration was rejected." (Emphasis added.)

Is the issue now becoming clearer? It is to me.

The DEC writes back telling the club to stuff it because the public has a right to navigate on navigable waters and that the DEC has pronounced the waters thus.

The club strikes back with a lawsuit against Phil Brown and a mysterious Lady in Red. Money is now flowing to lawyers. The lawyers will all like this state of affairs. The ideologues sitting in suits in Sierra Club headquarters like this state of affairs. Magazine publishers probably like this state of affairs. Paddlers, without thinking much, will reflexively like this state of affairs.

Now the NY AG is trying to intervene (become a party) to the suit. More lawyers involved. They love it because their department is probably threatened by budget cuts. Now NYS taxpayer money will flow into Shingle Shanty Brook.

Hundreds of thousands of dollars and many years will be spent on this one water body litigation. What's in it for paddlers? If they win, they can paddle a few more miles of the tens of thousands of miles they already can paddle in the Dacks. But it won't necessarily be precedent for the next chained stream. The navigability of that water body will have to be individually litigated. If the club wins at SSB, that won't be legal precedent either, but as a practical matter I would expect the state and private litigators to give up. In that case, paddlers have gained nothing, the lawyers have been enriched, the taxpayers of NYS are poorer, and the Sierra suits will go spend their member's money on some other ideological issue likely to get themselves re-elected.

If that sounds cynical, let me end on a practical note. I think the hunting clubs want some money from someone in order to vote yes on a compromise settlement. I can almost promise that the amount it would take will be much less than the costs of litigation. I suspect that this is what the club's lawyers are angling for. They may have been willing to settle for a fraction of the amount of the defendant's lawyers estimated fees, which I read somewhere was in the range of $50K-$100K. However, now the NYS AG is involved. This is an even more political and ideological organization than the Sierra Club, and I don't even know if they have statutory authority to settle cases with taxpayer money.

This case should and probably can be settled. But the hunting clubs have to get something out of it other than conceding unilateral defeat. Both sides are now beating each other with bigger and bigger legal sticks, and at some point there will be no rational and unbloodied brain left to settle the matter.

I wonder if anyone has considered third party arbitration with authority to offer money from some source.

randomscooter 02-28-2011 08:33 AM

Thank you Glenn MacGrady for a reasoned and insightful post. :thumbs:


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