A state Supreme Court judge ruled Tuesday in favor of an Adirondack journalist who was sued in 2010 by a homeowners association after he canoed on a stream marked “no trespassing” and wrote a story about his trip.
Hamilton County state Supreme Court Justice Richard Aulisi ruled Tuesday that Brandreth Park Association can’t ban access to Single Shanty Brook in Long Lake because the waterway is “navigable in fact.”
A navigable in fact waterway must be publicly accessible under state law.
The lawsuit followed Adirondack Explorer editor Phil Brown’s story on his trip down the brook into Mud Pond, coverage that inspired other paddlers to use the posted waterway.
Lawyers for the Park Association argued the small brook isn’t navigable because the creek can only be traveled by canoes and kayaks, which still must portage about 500 feet, and would only be used for recreational purposes.
“It’s clear he found canoe and kayak use is enough,” said Neil Woodworth, executive director of the Adirondack Mountain Club, of the statewide importance of Tuesday’s decision.
The definition of “navigable in fact” historically hinged on a waterway’s potential for commercial use.
Aulisi’s ruling drew from a 1998 state Appeals Court decision that favored the Sierra Club and it means recreational use is enough to declare a waterway publicly accessible, Woodworth said.
The traditional language of “navigable in fact” rulings bled through Aulisi’s decision, as he noted that the waterway could feasibly be used to carry “furs, goods and supplies.”
Guides at St. Regis Outfitters testified they would lead people on outings down Single Shanty Brook if it were opened to the public, adding an economic component to the creek’s navigability.
Brown’s case was also bolstered in 2011, when the state Department of Environmental Conservation and Attorney General Eric Schneiderman joined his defense.
“It started out as a trespassing case and you have the attorney general weighing in on the side of the trespasser. That seems improper to me,” said Fred Monroe, executive director of the Adirondack Local Government Review Board.
The review board supported the Brandreth Park Association’s property rights claim.
“The whole weight of state government ended up on one side,” Monroe said.
Aulisi wrote in his decision that the portage gave “the court pause,” but wasn’t enough to rule the waterway unnavigable.
Brown’s story, which included photos of him paddling the contested brook, was not intended to instigate a standoff with the Park Association, according to Adirondack Explorer publisher Tom Woodman.
“We weren’t setting out to be sued,” Woodman said. “We were setting out to tell the story. But we were happy to take on the larger issue.”
Park Association lawyer Dennis Phillips said Tuesday it was “too early” to comment on a possible appeal.
Access disputes, like the one instigated by Brown’s story, often create atypical bedfellows between often environmentally friendly, moneyed Adirondack landowners and more conservative property rights advocates.