AG intervenes in Shingle Shanty case

[ALGonquin Bob]

Originally Posted by fisher39

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".

[Paradox6]

Originally Posted by Glenn MacGrady

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.

[Paradox6]

Originally Posted by Dustin

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.

[Pumpkin QAAD]

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.

[sp_nyp]

Originally Posted by Pumpkin QAAD

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.

[Pumpkin QAAD]

I'm making the point that what the DEC opines shouldn't be taken as fact.

[Neil]

Originally Posted by sp_nyp

This thread is now doomed for closure.

[redhawk]

Originally Posted by Pumpkin QAAD

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

[adkman12986]

A judge Over and done once and for all.

[fisher39]

Originally Posted by redhawk

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?

[Paradox6]

Originally Posted by redhawk

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.

[redhawk]

Originally Posted by fisher39

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

[redhawk]

Originally Posted by Paradox6

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

[fisher39]

Originally Posted by redhawk

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.

[Pumpkin QAAD]

Does the state intervention make the DEC's opinions prejudicial evidence in this case since both are the state ?

[redhawk]

Originally Posted by Pumpkin QAAD

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.

[redhawk]

Originally Posted by fisher39

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

[Pumpkin QAAD]

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.

[sp_nyp]

Originally Posted by Pumpkin QAAD

I've had some experience with the DEC where you get conflicting information

I have had the same experience.

[Paradox6]

Originally Posted by redhawk

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.