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  • #31
    Hawk, in case you missed it, I was making the point that people should tone down the rhetoric and stop casting aspersions on the character and motives of the various parties to this matter. In this situation, just like any other, it is easy to vilify the other side if one wants to light the torch of indignation and outrage.

    I'm having a tough time making sense of your overall position. Here you seem to be forcefully arguing for due process:

    Originally posted by redhawk View Post
    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.
    Yet in the same post and elsewhere you make it all but clear that Hon. Redhawk has already ruled, and the property owners are guilty.

    Originally posted by redhawk View Post
    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.
    What's it going to be? Respect for due process and finding out what the law actually is, or maintaining that the property owners are guilty until proven innocent, at which point if and when that happens we'll probably hear a lot about the "miscarriage of justice"?

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    • #32
      Originally posted by fisher39 View Post
      Hawk, in case you missed it, I was making the point that people should tone down the rhetoric and stop casting aspersions on the character and motives of the various parties to this matter. In this situation, just like any other, it is easy to vilify the other side if one wants to light the torch of indignation and outrage.

      I'm having a tough time making sense of your overall position. Here you seem to be forcefully arguing for due process:



      Yet in the same post and elsewhere you make it all but clear that Hon. Redhawk has already ruled, and the property owners are guilty.



      What's it going to be? Respect for due process and finding out what the law actually is, or maintaining that the property owners are guilty until proven innocent, at which point if and when that happens we'll probably hear a lot about the "miscarriage of justice"?
      I haven't made any ruling, only offered my opinion (and hope) that the waters are opened.

      I have made it perfectly clear that I oppose property rights in the sense that if they are truly to be honored, then all who currently reside on them, deed or not are trespassing since these lands were never owned by anyone nor did anyone have the right to convey them to someone else. Yep, I know this is a ludicrous opinion, but be that as it may, it's the only just one if that is truly everyone's interest.

      Say what you want but the tone of the post that i replied to seemed to point to Phil Brown and the Adirondack Explorer as the cause of the lawsuit. I was merely pointing out that if it's necessary to assign the blame for the lawsuit being brought, it should be against those who chose not to try to work out a compromise and filed the suit.

      Actually everyone should be in favor of this going to court and hopefully a ruling being made as to the legality of the navigable-in-fact determination. Since both sides seem to be sure the law is in their favor and that the ruling will go thier way then property owners and paddlers should welcome this suit.

      So, I really don't see that there is anything constructive in complaining about the suit going forward. Even in bad economic times, justice and fact should not be put aside under any circumstance.

      I can understand that those who side with the property owners would prefer that the state not enter the case, because it gives more legitimacy and weight to the defendants, but since it is the state that is making the determination through the DEC then they certainly should be a party to it.

      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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      • #33
        Hawk, the only people complaining about this lawsuit are those who seem to feel that Phil Brown, the Sierra Club, the DEC and the everyday paddler should be able to casually designate a 'public highway' across someone's property on the basis of a springtime paddle and/or reading a few advocacy pieces.

        The vitriol and invective coming from some because the property owner dared insist on due process and having their day in court really is something else.

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        • #34
          Originally posted by fisher39 View Post
          Hawk, the only people complaining about this lawsuit are those who seem to feel that Phil Brown, the Sierra Club, the DEC and the everyday paddler should be able to casually designate a 'public highway' across someone's property on the basis of a springtime paddle and/or reading a few advocacy pieces.

          The vitriol and invective coming from some because the property owner dared insist on due process and having their day in court really is something else.

          I guess you need to go back and read your own posts. As someone else mentioned, from your post people could assume that Phil Brown (whom you certainly seem to villify as the cause for this, when it could as easily be true that the cause is the property owners refusing access to public waters) was the person who filed the suit.

          It would also appear that the views of some is that property owners should not have to pay fees in order to prove their case in court. It's as if, because they own property, they are the LORDS of the land and whatever they believe or wish should be law.

          I admit, that I am against the property owners assertions but I think that on the same hand you should admit that you agree with their assertions (the property owners) and that your remarks about Phil Brown are based on bias. My remarks on this thread about the culpability lying at the feet of the property owners was a reply to your assertions that would lead one to believe that this suit was brought about by Phil Brown.

          I have my beliefs, you have yours. But, why not limit our posts to the merits of whether the navigable-in-fact applies to Shanty brook or not.

          Of course if the owners lose then Phil Brown will be a pariah to property owners everywhere, when any blame should rightfully be put square on the shoulders of whomever did not respect the law.

          As I have said, everyone should welcome this suit if it settles the issue of navigable-in-fact once and for all. Since the property owners have publicly expressed the opinion that they are in the right, then they should welcome the chance for it to be validated and should applaud Phil Brown and the Brandeth Association (or whatever it is) for finally getting it before a court.

          So, unless they are just whistling in the dark, I don't understand why they wouldn't want this suit to go forward.

          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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          • #35
            Trying to stay within capacity.
            Last edited by Dustin; 03-01-2011, 09:14 PM. Reason: Don't post angry.
            “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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            • #36
              Maybe it's just me, but I don't really view Fisher's posts as "complaining."

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              • #37
                Originally posted by DSettahr View Post
                Maybe it's just me, but I don't really view Fisher's posts as "complaining."
                Maybe it's just me but this thread seems to be on a slippery slope.

                Perhaps this subject is beyond ADKForum's capacity.
                The best, the most successful adventurer, is the one having the most fun.

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                • #38
                  This case is more interesting than I thought.

                  I have two observations and then a question for the forum members.

                  1. I was surprised at the relative triviality of the water body in question. This appears to be just two miles of meandering swampy stream around which there is already a 0.8 mile state maintained portage route. This seems like a rather puny paddling prize for what will be a big litigation war. My perspective is affected by many of the famous historical navigability cases in this country. They involved the navigability of such water bodies as Lake Ontario, the Mississippi River and Lake Winnipesaukee!

                  2. I didn't realize that it is the private club that filed the suit. That explains part of my first observation, in that this plaintiff will lose trivial water rights even if it loses the entire navigability suit.

                  However, no riparian owner would file such a lawsuit unless the lawyer thought there was good evidence of non-navigability-in-fact. I wonder what the club attorney is banking on. My guess is that he will offer evidence of three things. First, that there is no historical record of any commercial trade or transport along SSB. This is unlike the Middle Moose where there was a long record of commercial log driving.

                  Second, that there really isn't any record of any significant historical recreation use on SSB, or even a capacity for commercial recreation. He will bring in outfitters and rafting companies to testify that there is no incremental commercial value in having SSB opened up for paddling.

                  Third, that SSB is not part of a "highway of commerce". The "highway" concept is very ancient, but it is not destroyed by occasional obstacles like a rapid. However, SSB is not a continuous water highway like the Middle Moose. The route from Little Tupper via SSB to Lila is a paddle and portage traverse. There are apparently three long portages in addition to the one around SSB.

                  If true, this would be probative evidence, in my opinion. SSB may not be the best case for NYS paddlers to litigate their navigability access principle. Which brings me to my question:

                  Does anyone know of a current list of the paddle-able "chained waterways" in the Adirondacks? In other words, if the paddlers were to win the SSB case on the facts and every other private club in the Dacks caved and took down all their chains, how many water bodies or miles of paddling would we be adding? My understanding is that the list of chained waterways has diminished, perhaps significantly, since the time prior to the Moose River Case in the early 90's because of State acquisitions and lease agreements for waterways.

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                  • #39
                    Originally posted by Glenn MacGrady View Post
                    This case is more interesting than I thought.
                    You are by far (extremely far), much more experienced and knowledgeable regarding the issue in this particular situation and in general.

                    In addition, I think your points for the land owners are better presented than any of mine for the public. I suppose the NYS courts will have to decide whether they are stronger, as applicable to the law, than the defendant's arguments.

                    I was wondering, since you used to work on both sides of the issue, and if you have enough details, if you would tell us what kind of arguments you might make if you were hired by the defendant in this case.
                    “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


                    • #40
                      Originally posted by Glenn MacGrady View Post
                      This case is more interesting than I thought.

                      I have two observations and then a question for the forum members.

                      1. I was surprised at the relative triviality of the water body in question. This appears to be just two miles of meandering swampy stream around which there is already a 0.8 mile state maintained portage route. This seems like a rather puny paddling prize for what will be a big litigation war. My perspective is affected by many of the famous historical navigability cases in this country. They involved the navigability of such water bodies as Lake Ontario, the Mississippi River and Lake Winnipesaukee!

                      2. I didn't realize that it is the private club that filed the suit. That explains part of my first observation, in that this plaintiff will lose trivial water rights even if it loses the entire navigability suit.

                      However, no riparian owner would file such a lawsuit unless the lawyer thought there was good evidence of non-navigability-in-fact. I wonder what the club attorney is banking on. My guess is that he will offer evidence of three things. First, that there is no historical record of any commercial trade or transport along SSB. This is unlike the Middle Moose where there was a long record of commercial log driving.

                      Second, that there really isn't any record of any significant historical recreation use on SSB, or even a capacity for commercial recreation. He will bring in outfitters and rafting companies to testify that there is no incremental commercial value in having SSB opened up for paddling.

                      Third, that SSB is not part of a "highway of commerce". The "highway" concept is very ancient, but it is not destroyed by occasional obstacles like a rapid. However, SSB is not a continuous water highway like the Middle Moose. The route from Little Tupper via SSB to Lila is a paddle and portage traverse. There are apparently three long portages in addition to the one around SSB.

                      If true, this would be probative evidence, in my opinion. SSB may not be the best case for NYS paddlers to litigate their navigability access principle. Which brings me to my question:

                      Does anyone know of a current list of the paddle-able "chained waterways" in the Adirondacks? In other words, if the paddlers were to win the SSB case on the facts and every other private club in the Dacks caved and took down all their chains, how many water bodies or miles of paddling would we be adding? My understanding is that the list of chained waterways has diminished, perhaps significantly, since the time prior to the Moose River Case in the early 90's because of State acquisitions and lease agreements for waterways.
                      If I read the papers filed by the AG's office correctly, they are claiming that recreational use alone is enough to establish N-I-F. That Commercial use does not have to be established

                      I also recall references to "Guides" as well as canoe rental business (in some vernacular) mentioned in the documents as well.

                      Also of note is the fact that at one time the owners of the land that contains the contested section of SSB logged the area pretty extensively and also used the land for some other commercial purposes. So if the waterway was ever used to float any of those logs (are there any logging roads in there?) or to transport products for use in a commercial venture, then it would also meet the commercial use criteria.

                      As for why the property owners would pursue a case they might not win? I can't speak for their motives, perhaps they are sure they can win but here are a few thoughts about your questions.

                      Perhaps they thought that it would not go this far.

                      There are cases where people refuse to accept any conclusion except their own. Why ask the DEC to paddle the brook to determine if the stream is N-I-F and then take the action they did when the determination was not what they wanted to hear?

                      Some people will just not accept the fact they are wrong. I know of a couple of civil cases where one party or the other continues to appeal the case despite losing every time.

                      With some people it's personal and they cannot accept losing.

                      Some lawyers will claim a case is winnable to gain a client.

                      So there are lots of reasons.

                      I also think that there is a lot of financial aid going to the Plaintiffs legal war chest from a great deal of property owners and private property advocates probably a much larger amount then what is being donated to the defendants legal fund.

                      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

                      Comment


                      • #41
                        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.

                        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.
                        Direct hit. This is about money and publicity for the pro-access activists, including The Explorer, regional canoe manufacturers, and outfitters. As an avid Adirondack paddler, skipping 1 carry on a 4-carry route is meaningless. Where exactly are all the other places where a Phil Brown win here will open access? I'm almost as tired of hearing about this as I am of "Half-a-Man-Charlie Sheen".
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                        • #42
                          Originally posted by Glenn MacGrady View Post
                          This case is more interesting than I thought.

                          I have two observations and then a question for the forum members.

                          1. I was surprised at the relative triviality of the water body in question. This appears to be just two miles of meandering swampy stream around which there is already a 0.8 mile state maintained portage route. This seems like a rather puny paddling prize for what will be a big litigation war. My perspective is affected by many of the famous historical navigability cases in this country. They involved the navigability of such water bodies as Lake Ontario, the Mississippi River and Lake Winnipesaukee!

                          2. I didn't realize that it is the private club that filed the suit. That explains part of my first observation, in that this plaintiff will lose trivial water rights even if it loses the entire navigability suit.

                          However, no riparian owner would file such a lawsuit unless the lawyer thought there was good evidence of non-navigability-in-fact. I wonder what the club attorney is banking on. My guess is that he will offer evidence of three things. First, that there is no historical record of any commercial trade or transport along SSB. This is unlike the Middle Moose where there was a long record of commercial log driving.

                          Second, that there really isn't any record of any significant historical recreation use on SSB, or even a capacity for commercial recreation. He will bring in outfitters and rafting companies to testify that there is no incremental commercial value in having SSB opened up for paddling.

                          Third, that SSB is not part of a "highway of commerce". The "highway" concept is very ancient, but it is not destroyed by occasional obstacles like a rapid. However, SSB is not a continuous water highway like the Middle Moose. The route from Little Tupper via SSB to Lila is a paddle and portage traverse. There are apparently three long portages in addition to the one around SSB.

                          If true, this would be probative evidence, in my opinion. SSB may not be the best case for NYS paddlers to litigate their navigability access principle. Which brings me to my question:

                          Does anyone know of a current list of the paddle-able "chained waterways" in the Adirondacks? In other words, if the paddlers were to win the SSB case on the facts and every other private club in the Dacks caved and took down all their chains, how many water bodies or miles of paddling would we be adding? My understanding is that the list of chained waterways has diminished, perhaps significantly, since the time prior to the Moose River Case in the early 90's because of State acquisitions and lease agreements for waterways.
                          My background is in trying to amass evidence to put cases together. My point from the first post I made on this subject, aside from the collateral damage issue, is I haven't seen the evidence needed to support the paddler's position. If you want to make a test case, you have to pick a winner. Nobody has come forward with the evidence of navigability in fact, in the historical record.
                          Last edited by Paradox6; 03-02-2011, 07:14 AM.

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                          • #43
                            Originally posted by Dustin View Post
                            You are by far (extremely far), much more experienced and knowledgeable regarding the issue in this particular situation and in general.

                            In addition, I think your points for the land owners are better presented than any of mine for the public. I suppose the NYS courts will have to decide whether they are stronger, as applicable to the law, than the defendant's arguments.

                            I was wondering, since you used to work on both sides of the issue, and if you have enough details, if you would tell us what kind of arguments you might make if you were hired by the defendant in this case.
                            First would be a "legal" defense. One argument that comes to mind for the original defendants would have been to argue that the time horizon for determining navigability in fact is the "present," or the time when the issue is litigated, and not the time the property owner was conveyed the property. However, IMO, it is very weak, a loser. It might be an open legal question, but the other opinions hint about the time frame as being at the time of the conveyance, when they look at the stream "in it's original state." The case law concerning "easements," which the AG seems to acknowledge is what this right of navigability is, is very solid, it is the time of the original conveyance and the burden of proof is "clear and convincing" evidence, not a "preponderance" as in an ordinary civil case, and the burden is on the person claiming the easement, hence the AG's affirmative defense in their answer.

                            Property rights law is based upon principles that are very stable, the notion that property rights can shift or jump from one person to another without an actual transfer of them is really foreign to the entire concept of property law. In any event, the AG's answer undercuts this approach.

                            The second, a "factual" defense, would be to pour over the chain of title documents and look for defects where all of the rights were somehow not transferred from the state to the owner, or from owner to successive owner.

                            The third, again a factual defense, would be to review the historical records for recreational and commercial use, of usefulness as a waterway. This is tough to do. We've been discussing this for a couple of years now and no one has come up with anything. There was another post about a land commissioner's report that outlines Dr. Webb's description of commerce in the area that really supports the landowner. That's the kind of stuff one would need on the part of the paddlers. Could be reports of old litigation, old accounts of guides and trips, old journals, old surveyors notes, old commercial/logging company records, timber cruises, railroad company records of likely routes, the list of possibilities is endless, but the data mining that would have to be done is enormous with little or no certainty of anything productive.
                            Last edited by Paradox6; 03-02-2011, 07:20 AM.

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                            • #44
                              It sounds like a group of people trying to defend what they believe is private property. It does not come off to me as a great big conspiracy by landowner groups to violate people's rights.

                              The DEC isn't exactly a smooth running, consistent organisation whose judgements shouldn't be questioned.

                              Is that another inconsistency ?

                              I would love to see what Phil Brown (or any vehement pro-access supporter) would do if a Nat Gas company legally fracked under his(their) house, I'm sure he'd fight it regardless of what the DEC said.
                              A society grows great when old men plant trees whose shade they know they never shall sit in

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                              • #45
                                Originally posted by Pumpkin QAAD View Post
                                I would love to see what Phil Brown (or any vehement pro-access supporter) would do if a Nat Gas company legally fracked under his(their) house, I'm sure he'd fight it regardless of what the DEC said.

                                This thread is now doomed for closure.

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