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Old 02-28-2011, 10:05 AM   #21
fisher39
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Indeed, thank you very much for weighing in here!

Quote:
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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Old 02-28-2011, 10:15 AM   #22
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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.
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Old 02-28-2011, 12:24 PM   #23
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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.

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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.
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Old 02-28-2011, 12:50 PM   #24
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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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Old 02-28-2011, 12:56 PM   #25
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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.
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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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Old 02-28-2011, 01:04 PM   #26
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Quote:
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.

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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"

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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.

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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.

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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.
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Old 02-28-2011, 01:05 PM   #27
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Quote:
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...

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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 at 01:11 PM.. Reason: As in this route...
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Old 02-28-2011, 01:07 PM   #28
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(thanks fisher for you comments by the way, I wish this forum had a thanks button )
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Old 02-28-2011, 01:26 PM   #29
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(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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Old 02-28-2011, 02:57 PM   #30
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Quote:
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?

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Old 02-28-2011, 03:39 PM   #31
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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:

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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.

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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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Old 02-28-2011, 05:45 PM   #32
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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.

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Old 03-01-2011, 07:07 PM   #33
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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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Old 03-01-2011, 07:51 PM   #34
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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.

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Old 03-01-2011, 08:36 PM   #35
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Old 03-01-2011, 08:50 PM   #36
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Maybe it's just me, but I don't really view Fisher's posts as "complaining."
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Old 03-01-2011, 08:58 PM   #37
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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.
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Old 03-01-2011, 10:13 PM   #38
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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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Old 03-01-2011, 11:06 PM   #39
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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.
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Old 03-02-2011, 12:34 AM   #40
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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
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