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  • #16
    Originally posted by fisher39 View Post
    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
    "If future generations are to remember us with gratitude rather than contempt, we must leave them more than the miracles of technology. We must leave them a glimpse of the world as it was in the beginning, not just after we got through with it." Lyndon B. Johnson

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    • #17
      Originally posted by DSettahr View Post
      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".
      The best, the most successful adventurer, is the one having the most fun.

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      • #18
        Originally posted by Pumpkin QAAD View Post
        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.

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        • #19
          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.

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          • #20
            Thank you Glenn MacGrady for a reasoned and insightful post.
            Scooting here and there
            Through the woods and up the peaks
            Random Scoots awaits (D.P.)


            "Pushing the limits of easy."™

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            • #21
              Indeed, thank you very much for weighing in here!

              Originally posted by Glenn MacGrady View Post
              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.

              I wonder if anyone has considered third party arbitration with authority to offer money from some source.
              I doubt they are actually interested in selling a right they have, or think they have, held since 1851. The mention of the lack of compensation might have been to suggest that if the state turned around and tried to coercively acquire access, it would constitute a taking. It could have also been to get the DEC to ask themselves how much this waterway is worth to the public. Not much is my guess - I find it highly doubtful that a single person was discouraged from doing the Lila Traverse because they couldn't travel this waterway, or that more people will take it if they can.

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              • #22
                Originally posted by Glenn MacGrady View Post
                I believe that was a great analysis of the situation and mostly agree.

                Just because something is difficult to pursue, may not achieve the best results, is time consuming, or costly does not mean it is right to give up, concede, or not pursue at all. If these clubs are claiming NYS public lands as their own when they are not, they should be fought. And if money is the main cause for this AND their found to be claiming NYS public lands then....

                Also on the point of every single waterway being litigated to determine the navigability; I highly doubt this will be the case. If the Phil Brown and the NYS AG win this case, I would bet that it would greatly persuade others, who find themselves in the same situation as the current plaintiff, to not engage in costly litigation when recent history (i.e. this case) has shown it to be a costly wager with a low percentage of winning. Of course those with more money than they know what to do with, will always throw it at their problems in an attempt to buy their way.

                Principle shouldn't have a dollar amount affixed to it.
                “Climb the mountains and get their good tidings. Nature's peace will flow into you as sunshine flows into trees. The winds will blow their own freshness into you, and the storms their energy, while cares will drop off like autumn leaves.”

                ~John Muir





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                • #23
                  Originally posted by Dustin View Post
                  Principle shouldn't have a dollar amount affixed to it.
                  That's fine to say if you're the one bankrolling the entire endeavor, including the costs of the other side! It's going to cost how much to possibly remove some posted signs for the comfort of a few apparently debilitatingly timid paddlers?

                  If Phil Brown brought about this dispute for practical needs and reasons - because the public were unable to reach public land, or if paddlers were being prosecuted for trespass when they took the disputed route, making an issue of the posted signs and the cable from which they hang might make more sense. But this isn't a dispute driven by practical needs and considerations - it is tough to argue that use of this route would even make the Lila Traverse easier or faster - it is entirely a matter of principle.

                  And of course there is the possibility that these principles that many have so much faith in don't have any basis in law. If that's the case, paddlers will be much worse off than if this never happened. I suspect that paddlers effectively gained as much access as they ever will have with the Moose River case.

                  Originally posted by Dustin View Post
                  If these clubs are claiming NYS public lands as their own when they are not, they should be fought. And if money is the main cause for this AND their found to be claiming NYS public lands then....
                  You realize the other side can say essentially the same thing, and they probably have much sounder grounds for doing so.

                  Phil Brown has created a real cause celebre, generating a huge amount of publicity for himself and the Adirondack Explorer, especially now that this matter is headed to court. Phil Brown benefits whatever the outcome of this case is. It's not like he wrote a single piece on the matter and the property owners jumped on him with a lawsuit. He wrote numerous pieces on the matter for well over a year before he got hit with the lawsuit. I haven't done a count, but my guess it was well over a dozen. It took a while, but the sustained effort has already paid out handsomely in publicity whether he meant it to or not.

                  John Nemjo, owner of "NY's largest canoe & kayak dealer" is one of the signatories on the Sierra Club letter to the DEC, which is mentioned in the AGs papers as though it is one of the principal reasons the DEC got involved. John Nemjo is also "a leading proponent of the Great Oswegatchie Canoe Wilderness that would give the Adirondacks the second largest paddling wilderness in the lower forty-eight," which happens to include this area. His commercial interests, and that of others in the canoe and kayak industry would clearly be very well served by a ruling that the public has a right to go wherever their canoes and kayaks will take them in New York.

                  What are the property owners gaining from this dispute? Big legal bills and bad publicity for trying to protect rights they feel they've held since 1851.

                  Comment


                  • #24
                    Originally posted by fisher39 View Post
                    What are the property owners gaining from this dispute? Big legal bills and bad publicity for trying to protect rights they feel they've held since 1851.
                    So just because someone feels they've rightly owned something for 150 years, that's enough to decide that they actually do? Why can't we then say that we support Phil Brown because he is trying to protect rights that the public has had for even longer, since even before 1851?

                    Don't get me wrong, I'm not faulting the land owners for protecting what they truly think is theirs, but whether or not they feel they own the stream isn't the issue. It's whether or not they actually do own it.

                    Let me put it another way... if it's good for people to act upon knowledge that they genuinely believe to be true, why shouldn't Phil Brown stand up for something even if it is only a "principle?"

                    As far as all the publicity Phil has garned as a result of the case, why does this matter as far as the outcome is concerned? Does it really change whether or not he is right or wrong about the navigation rights of this stream? A participant in a case such as this shouldn't be ruled against simply for exercising his first amendment rights. Certainly, it could be viewed as unethical, but ideally, the court will turn a blind eye to it.

                    The viewpoint that if the paddler's win, all they get is "just a stream" is an interesting one... Wouldn't that mean that all the land owners stand to lose is also "just a stream?" It sounds like with navigation laws, passage is determined on a case by case basis, without much in the way for each case being able to set a legal precedent. So it's not like a win by paddlers would be a blow to the rights of private property owners everywhere. And if, from the viewpoint of private land owners, if it's the "principle of the thing" that they are defending, then again, why shouldn't Phil also fight for a principle he believes in?

                    Conversely, if such a case were to set a precedent (it seems like private property rights proponents would have us believe that this is the case), why shouldn't paddlers support their side? It could mean so much more than "just a stream." There are plenty of other disputed waterways in the Adirondacks that they could find open to use that would allow for some really neat and lengthy trips. Why shouldn't they fight for that, if there is so much to gain?

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                    • #25
                      Originally posted by fisher39 View Post
                      If Phil Brown brought about this dispute for practical needs and reasons - because the public were unable to reach public land, or if paddlers were being prosecuted for trespass when they took the disputed route, making an issue of the posted signs and the cable from which they hang might make more sense.
                      Originally posted by fisher39 View Post
                      His commercial interests, and that of others in the canoe and kayak industry would clearly be very well served by a ruling that the public has a right to go wherever their canoes and kayaks will take them in New York.
                      If the outcome of this case could potentially be a ruling that "the public has a right to go wherever their canoes and kayaks will take them in New York," then how is this not a dispute for practical needs and reasons, when the outcome covers all disputed water bodies? I'm sure there are some disputed water bodies that fit the criteria of "preventing the public from reaching public land," or where "paddlers are being prosecute for trespass when they took the dispute route." Also, wouldn't it be a good thing to have to have the issue settled once and for all through one court case? How is that not practical?

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                      • #26
                        Originally posted by fisher39 View Post
                        That's fine to say if you're the one bankrolling the entire endeavor, including the costs of the other side! It's going to cost how much to possibly remove some posted signs for the comfort of a few apparently debilitatingly timid paddlers?

                        If Phil Brown brought about this dispute for practical needs and reasons - because the public were unable to reach public land, or if paddlers were being prosecuted for trespass when they took the disputed route, making an issue of the posted signs and the cable from which they hang might make more sense. But this isn't a dispute driven by practical needs and considerations - it is tough to argue that use of this route would even make the Lila Traverse easier or faster - it is entirely a matter of principle.
                        You're statement implies that you are forgetting Phil Brown is being sued, not the other way around. Yes I agree with you that it is a matter of principle. Your principles and beliefs are well worth fighting for.

                        Originally posted by fisher39 View Post
                        And of course there is the possibility that these principles that many have so much faith in don't have any basis in law. If that's the case, paddlers will be much worse off than if this never happened. I suspect that paddlers effectively gained as much access as they ever will have with the Moose River case.
                        This seems like a scare tactic to me....."If you fight us, you may lose much more than you bargained for"

                        Originally posted by fisher39 View Post
                        Phil Brown has created a real cause celebre, generating a huge amount of publicity for himself and the Adirondack Explorer, especially now that this matter is headed to court. Phil Brown benefits whatever the outcome of this case is. It's not like he wrote a single piece on the matter and the property owners jumped on him with a lawsuit. He wrote numerous pieces on the matter for well over a year before he got hit with the lawsuit. I haven't done a count, but my guess it was well over a dozen. It took a while, but the sustained effort has already paid out handsomely in publicity whether he meant it to or not.
                        I do not believe what you're implying by this is really relevant. This has been reiterated by his opponents numerous times.

                        Originally posted by fisher39 View Post
                        John Nemjo, owner of "NY's largest canoe & kayak dealer" is one of the signatories on the Sierra Club letter to the DEC, which is mentioned in the AGs papers as though it is one of the principal reasons the DEC got involved. John Nemjo is also "a leading proponent of the Great Oswegatchie Canoe Wilderness that would give the Adirondacks the second largest paddling wilderness in the lower forty-eight," which happens to include this area. His commercial interests, and that of others in the canoe and kayak industry would clearly be very well served by a ruling that the public has a right to go wherever their canoes and kayaks will take them in New York.
                        Irrelevant to the actual legal outcome of this.

                        Originally posted by fisher39 View Post
                        What are the property owners gaining from this dispute? Big legal bills and bad publicity for trying to protect rights they feel they've held since 1851.
                        Then why fight it if their not gaining anything? Principle.

                        Big legal bills and bad publicity for trying to continue to steal rights they feel they've stolen since 1851 is another way to look at it.
                        “Climb the mountains and get their good tidings. Nature's peace will flow into you as sunshine flows into trees. The winds will blow their own freshness into you, and the storms their energy, while cares will drop off like autumn leaves.”

                        ~John Muir





                        Photos

                        Comment


                        • #27
                          Originally posted by DSettahr View Post
                          Let me put it another way... if it's good for people to act upon knowledge that they genuinely believe to be true, why shouldn't Phil Brown stand up for something even if it is only a "principle?"
                          Just in case it isn't clear, I think Phil has raised a reasonable and legitimate question. I don't think it needed to be raised, but it has been, and needs to be answered by the courts.

                          I was just trying to make the point that if one wants to go down the route of cynically questioning the motives and character of those involved in this dispute, the principle activists aren't beyond reproach.

                          As in this route...

                          Originally posted by Dustin View Post
                          Big legal bills and bad publicity for trying to continue to steal rights they feel they've stolen since 1851 is another way to look at it.
                          Last edited by fisher39; 02-28-2011, 01:11 PM. Reason: As in this route...

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                          • #28
                            (thanks fisher for you comments by the way, I wish this forum had a thanks button )

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                            • #29
                              Originally posted by DSettahr View Post
                              (thanks fisher for you comments by the way, I wish this forum had a thanks button )
                              My pleasure, and thanks for yours!

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                              • #30
                                Originally posted by fisher39 View Post
                                That's fine to say if you're the one bankrolling the entire endeavor, including the costs of the other side! It's going to cost how much to possibly remove some posted signs for the comfort of a few apparently debilitatingly timid paddlers?

                                If Phil Brown brought about this dispute for practical needs and reasons - because the public were unable to reach public land, or if paddlers were being prosecuted for trespass when they took the disputed route, making an issue of the posted signs and the cable from which they hang might make more sense. But this isn't a dispute driven by practical needs and considerations - it is tough to argue that use of this route would even make the Lila Traverse easier or faster - it is entirely a matter of principle.

                                And of course there is the possibility that these principles that many have so much faith in don't have any basis in law. If that's the case, paddlers will be much worse off than if this never happened. I suspect that paddlers effectively gained as much access as they ever will have with the Moose River case.



                                You realize the other side can say essentially the same thing, and they probably have much sounder grounds for doing so.

                                Phil Brown has created a real cause celebre, generating a huge amount of publicity for himself and the Adirondack Explorer, especially now that this matter is headed to court. Phil Brown benefits whatever the outcome of this case is. It's not like he wrote a single piece on the matter and the property owners jumped on him with a lawsuit. He wrote numerous pieces on the matter for well over a year before he got hit with the lawsuit. I haven't done a count, but my guess it was well over a dozen. It took a while, but the sustained effort has already paid out handsomely in publicity whether he meant it to or not.

                                John Nemjo, owner of "NY's largest canoe & kayak dealer" is one of the signatories on the Sierra Club letter to the DEC, which is mentioned in the AGs papers as though it is one of the principal reasons the DEC got involved. John Nemjo is also "a leading proponent of the Great Oswegatchie Canoe Wilderness that would give the Adirondacks the second largest paddling wilderness in the lower forty-eight," which happens to include this area. His commercial interests, and that of others in the canoe and kayak industry would clearly be very well served by a ruling that the public has a right to go wherever their canoes and kayaks will take them in New York.

                                What are the property owners gaining from this dispute? Big legal bills and bad publicity for trying to protect rights they feel they've held since 1851.
                                So there is the heart of the matter.

                                And none of this would be happening if:

                                1. The owners had at least attempted a compromise.

                                2. They had not filed the Civil Suit.

                                So, all of this is a result of a suit BROUGHT BY THE OWNERS, so why don't you stop blaming Phil or the paddlers?

                                And it doesn't matter HOW MANY people something benefits. if it's the law, it should be respected whether it's one or a million people affected. Or if no people are affected.

                                So, why not put the responsibility for the current state of affairs right where it belongs on the property owners.

                                As far as Phil Brown and the Adirondack Explorer and the paddlers, They are Americans and the last time I checked, Americans had a right to pursue their rights through the courts and often by civil disobedience or even trespass to force an issue.

                                The Property owners are suing for what they feel are their rights, the paddlers and the state is counter suing to enforce whet they feel is their.

                                It's the American way, so what's the beef?

                                Hawk
                                "If future generations are to remember us with gratitude rather than contempt, we must leave them more than the miracles of technology. We must leave them a glimpse of the world as it was in the beginning, not just after we got through with it." Lyndon B. Johnson

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