ALBANY - Kayakers and canoeists have the right to paddle on any navigable waterway even if the shore is private, the state Department of Environmental Conservation asserts in a legal brief filed today in support of a canoeist being sued for paddling through private land in the Adirondacks.
State Attorney General Eric Schneiderman's office filed papers in state Supreme Court in Hamilton County seeking permission for the DEC to intervene in the lawsuit filed by the Brandreth Park Association and Friends of Thayer Lake against Phil Brown of Saranac Lake. The landowners sued Brown, editor of the Adirondack Explorer newspaper, for trespassing after Brown wrote about canoeing from Lake Lila to Little Tupper Lake in the state-owned Whitney Wilderness Area, using a waterway crossing Brandreth land.
The DEC also is seeking a court injunction forcing the landowners to remove cables, warning signs and security cameras from the waterway.
John Caffry, who represents Brown, said the state's motion to intervene in the case shows that it's not just about a landowner suing a trespasser. "It shows that the case is a very strong one in favor of the public's navigation rights," he said.
Caffry represented the Adirondack Mountain Club in a navigation rights case pitting the Sierra Club against a private landowner on the Moose River in Hamilton County. The DEC also intervened in that case on the side of the Sierra Club. The lawsuit resulted in a landmark decision in 1998 by the state's highest court, the Court of Appeals, that said recreational use can be considered in deciding whether a waterway is open to the public under common law.
In the current case, the landowners assert that a waterway must have a history of commercial use to be subject to the common law.
Attorney Dennis Phillips, who represents the landowners, said his clients will oppose the state's intervention.
"We think the state doesn't have any justification in trying to alter historic property rights when it has already served the public by constructing a portage trail between the Lake Lila property and the Whitney preserve on public land," Phillips said. The mile-long portage around the private tract takes less time than paddling across the tract via the interconnected Lilypad and Mud ponds and Shingle Shanty Brook, he said.
In its legal brief, the DEC noted that the Adirondack Park is a nationally recognized canoe and kayak destination and the wilderness area including Lake Lila and Little Tupper Lake is one of the most popular paddling and backcountry camping areas, attracting about 2,000 users annually.