Adirondack Forum  
Rules Membership Donations and Online Store Adkhighpeaks Foundation ADKhighpeaks Forums ADKhighpeaks Wiki Disclaimer

Go Back   Adirondack Forum > The Adirondack Forum > Paddling in the Adirondacks
Register FAQ Members List Calendar Search Today's Posts Mark Forums Read

Thread Tools Search this Thread Display Modes
Old 05-10-2016, 07:44 PM   #81
Join Date: Mar 2016
Posts: 3

So does the cable go back up? Or, are we still in a holding pattern?
attrail is offline   Reply With Quote
Old 05-10-2016, 11:10 PM   #82
ALGonquin Bob
Lake Lila - Low's Lake carry
ALGonquin Bob's Avatar
Join Date: Jan 2004
Location: Tonawanda, NY
Posts: 1,101
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.
"Like" my FB page and visit my map ALGonquin Bob's "BUFFALO PADDLES" Paddle Guide

Check out my "Mountain Blog"

46er #5357W

Last edited by ALGonquin Bob; 05-11-2016 at 01:28 AM..
ALGonquin Bob is offline   Reply With Quote
Old 05-12-2016, 10:00 PM   #83
Join Date: Mar 2016
Posts: 3
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..
attrail is offline   Reply With Quote
Old 01-31-2017, 05:35 PM   #84
WaterRings's Avatar
Join Date: Mar 2008
Posts: 56
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?
WaterRings is offline   Reply With Quote
Old 02-01-2017, 12:27 PM   #85
Connecticut Yankee
Connecticut Yankee
Connecticut Yankee's Avatar
Join Date: Jun 2006
Location: CT
Posts: 649
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.
Connecticut Yankee is offline   Reply With Quote
Old 02-02-2017, 10:22 PM   #86
Join Date: Mar 2016
Posts: 3
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.
attrail is offline   Reply With Quote
Old 02-07-2017, 11:44 AM   #87
Glenn MacGrady
Glenn MacGrady's Avatar
Join Date: Feb 2008
Location: Western Connecticut
Posts: 70
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..
Glenn MacGrady is offline   Reply With Quote
Old 12-15-2017, 01:03 PM   #88
WaterRings's Avatar
Join Date: Mar 2008
Posts: 56
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.
WaterRings is offline   Reply With Quote
Old 12-15-2017, 10:18 PM   #89
Join Date: Jun 2017
Posts: 17
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.
Viking is offline   Reply With Quote
Old 01-19-2018, 05:56 PM   #90
WaterRings's Avatar
Join Date: Mar 2008
Posts: 56
I agree with Glenn MacGready. His take on the whole case, in his several posts, in my opinion, is correct.

When the Court of Appeals referred the case back down to the trial court they were, in effect, saying that the decision by the Appellate Division was defective. It did not fully develop answers to at least five items. Both parties wanted the matter decided “as a matter of law” not a trial. The Court of Appeals correctly noted that the volume of material that the parties submitted including maps, documents, photographs, letters, articles, guidebooks, affidavits etc., etc. were complicated or contained too “conflicting or inconclusive evidence” to render a determination based on a matter of law. The five items the decision listed that needed to be more fully addressed were:
1. The waterway’s historical and prospective commercial utility.
2. The waterway’s historical accessibility to the public
3. The relative ease of passage by canoe.
4. The volume of historical travel.
5. The volume of prospective commercial and recreational use.

Quoting the Court’s Opinion, “Collectively, these factual assessments present material considerations that, left unresolved, permit more than one conclusion to be drawn concerning the Waterway’s practical utility.”

I my opinion because the Court of Appeals faulted the decision of the Appellate Division it’s value as a citation in future tests of navigability is weak at best. The preceding trial court (Supreme Court) decision was completely neutered. The whole sorted affair is back to square one as if the original suit never happened.

With the whole matter back at the trial court any one of several things could happen. The whole thing could be settled with the litigants deciding that “half an apple is better than no apple.” With the costs incurred to date by both sides and the potential for even greater costs in the future a settlement is a viable option. In New York at least 90% of all cases before trial courts are settled – they never go to trial despite the bluster of the lawyers involved. If Hamilton County only has one Supreme Court judge a change of venue could be requested and the new trial started before a different judge in a new location. The plaintiff could sell NYS a restricted easement or sell a piece of the property in fee thus ending the case or the trial could simply begin again with the outcome appealed by one party or the other.

I guess we will just have to wait and see.

My interest in this case is three fold: I am a Licensed Land Surveyor in NYS with 40 years experience including work as an expert witness in a number of real property disputes involving title issues and adverse possession. Secondly, my family has owned a farm here in NYS for over 100 years that is still in operation and run by the sixth generation. Our sovereignty and private use of the property is continually tested by people who see open space as free for the use of everyone even though they don’t own it. Lastly, I love to canoe in the Adirondacks and have done so for years always respecting the private property of others.

It will be interesting to see how it all shakes out.
WaterRings is offline   Reply With Quote

Currently Active Users Viewing This Thread: 2 (1 members and 1 guests)
Thread Tools Search this Thread
Search this Thread:

Advanced Search
Display Modes

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump

All times are GMT -4. The time now is 08:17 PM.

Powered by vBulletin® Version 3.8.4
Copyright ©2000 - 2018, Jelsoft Enterprises Ltd.

DISCLAIMER: Use of these forums, and information found herein, is at your own risk. Use of this site by members and non-members alike is only granted by the administration provided the terms and conditions found in the FULL DISCLAIMER have been read. Continued use of this site implies that you have read, understood and agree to the terms and conditions of this site. Any questions can be directed to the Administrator of this site.