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Old 05-10-2016, 07:44 PM   #81
attrail
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cable

So does the cable go back up? Or, are we still in a holding pattern?
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Old 05-10-2016, 11:10 PM   #82
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I expect to paddle through there in 2 weeks, so I'll report on that issue. I think that access will be unhindered pending a resolution to this long process, but just in case, maybe I should wear my Nixon mask when I pass by the trail cameras.
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Old 05-12-2016, 10:00 PM   #83
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Well, given that during oral argument, counsel for the land owners compared paddlers to Hitler, perhaps a WWII flavored mask would be more appropriate.

Last edited by attrail; 05-12-2016 at 10:12 PM..
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Old 01-31-2017, 05:35 PM   #84
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Does anyone know if there has been any movement in this case since the Court of Appeals referred the matter back to the Supreme Court, AKA Trial court last May?
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Old 02-01-2017, 12:27 PM   #85
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The case will be going back to a court trial sometime early this summer.

And to answer a previous question, the route through Shingle Shanty on the Brandith property is not legally open for the public to paddle through, (this from the NY A.G.'s office) so anyone planning the trip this summer should use the portage around their property. Best not to challenge until the case is settled.
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Old 02-02-2017, 10:22 PM   #86
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I paddled the Brook on two trips last year -- both after the Court of Appeals sent the case back down to the trial court. There is no chain across the entrance to the brook and no cameras. The initial portage is marked and the property owners have placed a scrub brush and instructions on cleaning boats to prevent the spread of invasive plants/critters.

I have seen no statements from the AG regarding the "openness" of the Brook and I doubt that any such statement would have the force of law. The status quo before the Appellate decision was that the Brook was open for public use and pending the outcome of the trial and/or any compelling information to the contrary, I will make another trip this year.
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Old 02-07-2017, 11:44 AM   #87
Glenn MacGrady
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I'm surprised I didn't comment on the Court of Appeals decision, since I recall reading all the briefs and watching a video of the oral argument.

Phil Brown won in the trial court (Supreme Court) when the judge granted his motion for summary judgment, which is a legal decision rendered without any trial. The summary judgment said the Shingle Shanty waterway at issue was navigable. The trial judge also issued an injunction against the landowners from interfering with paddlers.

The Appellate Division, the next court up the ladder, sustained the trial court's summary judgment decision.

The Court of Appeals chickened out on the whole issue, saying there should have been a trial to develop the facts better and that Brown shouldn't have been awarded summary judgment on the issue of navigability. So, they in effect nullified both lower courts' legal decisions in favor of Brown. Strangely, they didn't say what happens to the injunction against the landowners. However, since the injunction was based on the finding of navigability in the summary judgment decision, logically it should be dissolved when the basis for it has been dissolved.

So what is the current status of Shingle Shanty? I'd say the status is exactly the same as it was before Phil Brown made his paddle and wrote his article entitled "Testing the Legal Waters". The navigability and hence "publicness" of the waters is undecided. Hence the landowners could put up a chain or sue paddlers for trespass if they wanted to. To test the landowners' position on the matter, I suppose someone could highly publicize that they are going to paddle the disputed stream segment and write a follow-up article called "Retesting the Legal Waters". I'm not advocating that; it's just a thought.

I think what we can confidently take from this years-long Shingle Shanty journey through the muddy New York legal system -- as well as the prior journey on the East Moose in the Sierra Club case -- is that the New York courts don't really want to deal with the issue of navigability in marginal, small, narrow or remote waters. The trial courts don't want to decide the cases on the murky, sparse and contradictory facts, so they kick the cases upstairs in hopes that the appellate courts can decide the cases "on the law". But the law of navigability is itself murky and contradictory, so the Court of Appeals in Shingle Shanty and Sierra Club booted the cases back down to the trial court again to further develop the facts or to seek a settlement.

It's all too hard for the judges. They see the unconvincing facts, they read their own prior fuzzy recitations of the law, they foresee the statewide practical consequences to paddlers and landowners of legal decisions they may make in the wilderness, they are torn by the competing policy and cultural issues at stake -- and they just really don't want to deal with it all.

Ping. Pong.

Last edited by Glenn MacGrady; 02-09-2017 at 02:07 AM..
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Old 12-15-2017, 01:03 PM   #88
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Anything new on this issue? The way I read the decision the case needs to start all over again at the trial court level. Just wondering if it did.
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Old 12-15-2017, 10:18 PM   #89
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I was contacted by lawyers representing the state about this a few months ago.
They were representing the DEC. I had made the trip a couple of years back when it had opened up. They went through the log books looking for people that had registered. Generally trying to get a feel for my impact on the area as I traveled along. They seemed to be under the impression beavers only build a set amount of dams per year.
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