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AG intervenes in Shingle Shanty case

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  • #46
    I'm making the point that what the DEC opines shouldn't be taken as fact.
    A society grows great when old men plant trees whose shade they know they never shall sit in

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    • #47
      Originally posted by sp_nyp View Post
      This thread is now doomed for closure.
      The best, the most successful adventurer, is the one having the most fun.

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      • #48
        Originally posted by Pumpkin QAAD View Post
        I'm making the point that what the DEC opines shouldn't be taken as fact.
        Here's a question then.

        Stream in the Adirondack Park.

        Classifications of regions of the Adirondack park were made by the DEC.

        The property owners asked the DEC to paddle the waters and make a determination.

        So from a legal sense, if a court were to gather facts or opinions in order to reach a conclusion, what group or agency would be considered any more "Expert"? If the owners were not of the opinion that the DEC was qualified to make a determination, why ask them to paddle the waters to do so?

        From a common sense, what group or agency would be better qualified to make a determination?

        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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        • #49
          A judge Over and done once and for all.

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          • #50
            Originally posted by redhawk View Post
            The property owners asked the DEC to paddle the waters and make a determination.
            Where'd you read that the property owners asked the DEC to make a determination? That's something the lead DEC attorney on the matter has said they have no authority to do:

            Under the current law, only a court can decide if a waterway is navigable in the legal sense, according to Kenneth Hamm, an attorney with the state Department of Environmental Conservation (DEC). Absent such a ruling, he said, “a person doesn’t know whether a waterway is navigable or not.” http://www.adirondackexplorer.org/stories/catch22.php
            Has the law changed?

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            • #51
              Originally posted by redhawk View Post
              Here's a question then.

              Stream in the Adirondack Park.

              Classifications of regions of the Adirondack park were made by the DEC.

              The property owners asked the DEC to paddle the waters and make a determination.

              So from a legal sense, if a court were to gather facts or opinions in order to reach a conclusion, what group or agency would be considered any more "Expert"? If the owners were not of the opinion that the DEC was qualified to make a determination, why ask them to paddle the waters to do so?

              From a common sense, what group or agency would be better qualified to make a determination?

              Hawk
              Hawk - Your argument/suggestion is the same one I hear from doctors I've represented in medical malpractice cases and engineers and other professionals in products liability and other technical liability cases. Basically, to suggest that the topic is too complicated for the average person and can only be judged by a jury of their own experts. The reality is that it is not.
              Juries, when they are the judges of the facts, do a fantastic job in the overwhelming number of cases.

              Letting the DEC judge their own decisions (or a panel of doctors to judge med mal cases) is letting the fox guard the chicken coop.

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              • #52
                Originally posted by fisher39 View Post
                Where'd you read that the property owners asked the DEC to make a determination? That's something the lead DEC attorney on the matter has said they have no authority to do:



                Has the law changed?
                Perhaps determination is the wrong word. What I read in the papers was that the owners asked the DEC to paddle the stream (which they did). It was then, if I have the facts staright that the DEC told the owners that the water were navigable-in-fact and after that the owners brought the suit. So, the DEC offered their OPINION then. My point is that if the owners did not believe that the DEC were capable of deciding whether the stream was N-I-F, why ask them to check it out.

                And no the law hasn't changed. If you read my post I am asking what person or agency would be a more credible "expert" in fromt of the court.

                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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                • #53
                  Originally posted by Paradox6 View Post
                  Hawk - Your argument/suggestion is the same one I hear from doctors I've represented in medical malpractice cases and engineers and other professionals in products liability and other technical liability cases. Basically, to suggest that the topic is too complicated for the average person and can only be judged by a jury of their own experts. The reality is that it is not.
                  Juries, when they are the judges of the facts, do a fantastic job in the overwhelming number of cases.

                  Letting the DEC judge their own decisions (or a panel of doctors to judge med mal cases) is letting the fox guard the chicken coop.
                  I didn't suggest that the DEC judge their own case. What I was trying to say is that since the court will hear witnesses for both sides in this case, what witness would have more experience or credibility in this case then 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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                  • #54
                    Originally posted by redhawk View Post
                    My point is that if the owners did not believe that the DEC were capable of deciding whether the stream was N-I-F, why ask them to check it out.
                    The Sierra Club is the party that got the DEC involved. According to a September 10, 2009 article in the Adirondack Almanack titled Canoe Rights Advocates Go On the Offensive "In a letter sent last month, the Sierra Club’s Adirondack Committee asked the New York State Department of Environmental Conservation (DEC) to enforce public navigation laws by making an Adirondack landowner remove cables and signs strung across Shingle Shanty Brook."

                    Perhaps the property owners were negotiating with the DEC in a good faith effort to see if they could come to a mutually acceptable solution that would allow them to avoid litigating the navigability question, and they thought it would be beneficial to show the DEC the waterway that was in dispute, and the state portage that bypasses it?

                    It is conceivable that the DEC could have served as a neutral arbiter to negotiate an agreement between the parties. When negotiations reached an impasse, the DEC could have said that they did what they could within the limits of their powers, and that if the parties wanted to pursue it further they would have to go to court to determine whether or not the waterway was NIF. I doubt anyone was expecting the DEC to aggressively offer their opinion on the legal question.

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                    • #55
                      Does the state intervention make the DEC's opinions prejudicial evidence in this case since both are the state ?
                      A society grows great when old men plant trees whose shade they know they never shall sit in

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                      • #56
                        Originally posted by Pumpkin QAAD View Post
                        Does the state intervention make the DEC's opinions prejudicial evidence in this case since both are the state ?
                        About as prejudicial as any expert witnesses the other side might offer. Both sides are going to present witnesses that make the point they want to make.

                        What i am saying is that since the DEC is pretty much the most experienced entity in these matters, their opinion should pull a lot of weight.
                        "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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                        • #57
                          Originally posted by fisher39 View Post
                          The Sierra Club is the party that got the DEC involved. According to a September 10, 2009 article in the Adirondack Almanack titled Canoe Rights Advocates Go On the Offensive "In a letter sent last month, the Sierra Club’s Adirondack Committee asked the New York State Department of Environmental Conservation (DEC) to enforce public navigation laws by making an Adirondack landowner remove cables and signs strung across Shingle Shanty Brook."

                          Perhaps the property owners were negotiating with the DEC in a good faith effort to see if they could come to a mutually acceptable solution that would allow them to avoid litigating the navigability question, and they thought it would be beneficial to show the DEC the waterway that was in dispute, and the state portage that bypasses it?

                          It is conceivable that the DEC could have served as a neutral arbiter to negotiate an agreement between the parties. When negotiations reached an impasse, the DEC could have said that they did what they could within the limits of their powers, and that if the parties wanted to pursue it further they would have to go to court to determine whether or not the waterway was NIF. I doubt anyone was expecting the DEC to aggressively offer their opinion on the legal question.
                          Could have, would have, should have. That's a bit different then what actually happened. If they didn't want an opinion from the DEC, why ask them to paddle SSB?

                          And if it was the case they were hoping for the DEC to negotiate an agreement, then why did the membership vote not to? And once again, if the owners were hoping for the DEC to negotiate or mediate, that in itself presented in a court case would give the appearance that the owners considered the DEC credible. is that a reasonable assumption?

                          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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                          • #58
                            I think the problem with the DEC is that you may get multiple opinions depending on who you got out on that brook. [edited out river]

                            I've had some experience with the DEC where you get conflicting information but anything they tell me to do I pretty much follow because they do have quite a bit of enforcement power.

                            I am really surprised, considering the language used in the state's intervention, that if these barriers were as they say the DEC didn't immediately dismantle these horrendous obstructions.

                            I hope for the owners sake there isn't a group of tire tubers with beer floats getting ready to exercise their rights in this case. I'm sure that's their ultimate fear not a couple environmentally conscious paddlers.
                            A society grows great when old men plant trees whose shade they know they never shall sit in

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                            • #59
                              Originally posted by Pumpkin QAAD View Post
                              I've had some experience with the DEC where you get conflicting information
                              I have had the same experience.

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                              • #60
                                Originally posted by redhawk View Post
                                I didn't suggest that the DEC judge their own case. What I was trying to say is that since the court will hear witnesses for both sides in this case, what witness would have more experience or credibility in this case then the DEC?

                                Hawk
                                On the narrow issue, the factual question that will ultimately be involved in the case, (and I'm paraphrasing)....whether or not the character of Shingle Shanty Brook was, in it's natural state, useful as the equivalent of a public highway for recreation or commercial purposes, prior to 1851.... why is anything the DEC does now even relevant or probative on that issue?

                                It's not a question of what they want. It's a question of what they can prove.

                                If the evidence they have is not relevant to the factual question involved, it won't even be admissible. Their credibility is not even an issue in that circumstance.

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