- Associated Press - Thursday, March 24, 2016

ALBANY, N.Y. (AP) - New York’s highest court will decide a case pitting a group of landowners’ private property rights against the public’s right to paddle down a waterway adjacent to a state-owned Adirondack wilderness area popular with canoeists and kayakers.

The seven-judge Court of Appeals heard arguments Thursday in the trespassing lawsuit against journalist Phil Brown, who wrote a 2009 article for the Adirondack Explorer newspaper describing his canoe trip across private land adjacent to the state-owned Whitney Wilderness in the Adirondacks.

Brown contends the public has a common-law right to paddle the stream because it’s navigable and accessible from public land.

The landowners, Brandreth Park Association and Friends of Thayer Lake, sued Brown, saying the two-mile shallow waterway, which includes rapids and other obstructions, doesn’t meet the criteria for navigability and has been considered private since the Brandreth family bought the land 150 years ago.

“I don’t think the wishful thinking of the paddlers is enough to change the common law of the state of New York,” said Dennis Phillips, lawyer for the landowners. Likening Brown’s paddle through the Brandreth land to Hitler’s march into Poland in 1939, Phillips told the judges, “He didn’t have any common law commercial purpose for needing that private land, he just wanted it.”

Public access wasn’t an issue until the state bought 15,000 acres of adjacent land in 1998 and created a wilderness area dotted with interconnected lakes, ponds and streams prized by canoe campers. Although a nearly mile-long portage trail bypasses the private land, paddlers have long coveted access to the stream as a link on the trip from Little Tupper Lake to Lake Lila. They have been thwarted by cables, warning signs and surveillance cameras strung across the water by the landowners.

A landmark 1998 decision by the state’s highest court established that recreational use, rather than solely commerce, can be considered in deciding whether a waterway is open to the public. In that case, the Sierra Club successfully challenged a private landowner, the Adirondack League Club, on the Moose River in Hamilton County.

A midlevel state appeals court cited the Moose River case in a 3-2 ruling in January 2015 upholding a decision in Brown’s favor. But the dissenting judges said the route’s impassable rapids and remoteness strain the definition of navigability. They said such a ruling could “destabilize the expectations of private property ownership.”

The state Department of Environmental Conservation, Adirondack Mountain Club and Environmental Advocates support Brown. The Property Rights Foundation of America, Empire State Forest Products Association, state Farm Bureau and Adirondack Landowners Association support the landowners.

Outside the courtroom, Brown said his motivation for paddling the waterway was journalistic.

“I used this trip to talk about the larger issue of navigation rights,” Brown said. “My understanding was, if you could paddle this route, it would be legally open to the public. I had every reason to believe you could, and I did. I thought it was legal.”

In a court brief, the Adirondack Mountain Club and Environmental Advocates said dozens and “probably hundreds” of other people have paddled through the disputed waterway.

A court decision is expected within six weeks.

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