Shingle Shanty update

[Explorer Editor]

The paddlers among you should be interested in the Adirondack Explorer's update on the Shingle Shanty Brook controversy. You can read it here.

 

[ALGonquin Bob]

I have mixed feelings about this. On one hand, you've revived an old question of navigability in an attempt to get a resolution, but also woke the sleeping bear and made it impossible for paddlers to go through there without being noticed. Now that the subject has been brought to everyone's attention, it should be pursued to a final legal conclusion, and I hope you are willing to do that.

 

[TCD]

I have mixed feelings on this also. I'm not a paddler (yet), but I am a hiker / skier / climber / etc.

I love to explore places I have not yet visited, but: It seems like the idea of private property is different in the paddling world than it is in the other worlds. I can't legally hike across posted property just because a trail once went through there; I can't legally climb at a cliff closed by the landowner just because I could yesterday; I can't legally ski closed trails at a ski area just because they were open yesterday.

So while the letter of the law may offer pretext for "navigating" on these waterways, what's the spirit of the law? And with all the unchallenged public waterways, are we forcing this navigation issue out of a real desire for more new places to paddle, or are we simply rubbing private landowners faces in this because we can?

TCD

 

[Explorer Editor]

Al Bob and TCD: I understand your mixed feelings. However, the common law has long recognized the public right to navigate waterways. That's because rivers were historically used for travel and commerce. Imagine a river that's wholly navigable and wholly owned by the public except for one short stretch, say a hundred yards long. Should that landowner be allowed to thwart the public from canoeing the river from end to end because he owns a small stretch in the middle? That's an extreme case, but it clarifies the rationale for the public right of navigation. What if a private landowner owned a piece of the Hudson? Should he be allowed to prevent ships from using the river?


By the way, in England (and perhaps other countries), you do have the right to walk on time-honored footpaths across private land.

 

[ALGonquin Bob]

I understand the concept, but do you and Explorer intend to persue this in court to get a legal binding decision? If not, your trip through there and the article you wrote did damage that hurts many other paddlers. So far, your net result is an article, some publicity, and more signs on the brook with the addition of motion-sensing trail cameras that will be used to obtain photographic evidence against any future paddlers who try that trip.

 

[Explorer Editor]

The point of our article was to bring attention to the issue of navigation rights. We think we accomplished that, and we hope that it may push the powers that be to resolve the dispute, perhaps through legislation, perhaps through state regulations. There are people working toward that end. If the dispute is settled in favor of paddlers rights, I assume the cable and rope and the signs in the waterway will have to be removed.

 

[ALGonquin Bob]

Your response confirms my impression when I first read about your trip through there. You apparently wanted to inspire someone else to do something about it, whether it was some paddler who followed your route, got caught, and fought it in court, or perhaps you were just hoping that the DEC, ADK, or some other entity besides yourself would clean up the mess. I think that Explorer should be fully involved (legally as well as editorially) in attempting to bring a speedy resolution to this long-standing issue that your article has caused to deteriorate into a cold war between a good land owner trying to defend it's perceived rights, and paddlers who want to avoid a carry.

 

[Explorer Editor]

I don't think the legal situation has deteriorated. The law remains the same, however many ropes and signs are placed in the waterways. It just needs to be clarified. If the landowners are right in their interpretation of the law, the ropes and signs can remain. Otherwise, they should come down. As I said, our hope is that the article--along with the actions of others, on both sides--will goad state officials into resolving the dispute. Thus, we think the article will prove helpful in the long run.

 

[TCD]

Phil, I'm still not sure we are not doing this just to rub the landowner the wrong way, or to prove a point. The old law was made for waterways which were used for public transportation and commerce, like the Hudson. But the Hudson is not a reasonable analogy to Shingle Shanty Brook, any more than the Northway would be a reasonable analogy to the old (now closed) Sachs trail up RoosterComb.

A reasonable analysis of this has to sort out commerce and public need, from recreation. If some land dispute was to block a 100' section of the Northway, I think we would all agree that it should be re-opened. But the Sachs trail was for recreation, and there are plenty of other trails for recreation. I walk on the trails that are open, not on the closed Sachs trail.

As I read about the various paddling access disputes over the last several years, where this old law has been brought to bear to force a way through a private area, I hear overtones of "More! More! What we have is never enough, we want it all." There are a lot of constituencies who are very sensitive to that tone, or even a hint of it, and it doesn't move the debate forward very well. We will end up with navigation rights to SSB (which, after the publicity dies down, no one will ever paddle), and we'll lose a dozen other more important resources.

JMHO

Tom

 

[Explorer Editor]

TCD, our intent is not to needlessly antagonize a landowner. I think everyone acknowledges that the Brandreths have been good stewards. But there is a legal issue that needs resolution. My examples were meant to illustrate the rationale behind the public right of navigation (which includes recreational paddling). Once you accept that such a right exists, the question arises: To which waterways does it apply? And, specifically, does it apply to Shingle Shanty Brook and the other waterways in question? There are arguments on both sides. I see no harm in our nudging the issue toward resolution.

I disagree that no one will paddle this route. It is an important link in the traverse from Little Tupper Lake to Lake Lila. In fact, it offers some of the best paddling on the traverse.

 

[Brambor]

Not a lawyer

I don't speak for the current law on the books but my opinion is that national and state natural treasures should be accessible to the public. In my fairyland reality the public should have access to the ocean and the beach anywhere along the United States corridor. Same goes to all natural lakes and streams.

and so on goes my rant...

For example the beautiful State of Maine boasts to tourists and visitors it's natural beauties, thousands of pristine lakes, rocky shores, islands and crispy clean beaches etc etc... What the tourist doesn't know is that most of these treasures are basically inaccessible to the public. The only way the tourist will experience these is to buy a flyover Maine video, buy a lobster roll and stay at a motel 6 somewhere in Camden.

 

[nyestreet]

For example the beautiful State of Maine boasts to tourists and visitors it's natural beauties, thousands of pristine lakes, rocky shores, islands and crispy clean beaches etc etc... What the tourist doesn't know is that most of these treasures are basically inaccessible to the public. The only way the tourist will experience these is to buy a flyover Maine video, buy a lobster roll and stay at a motel 6 somewhere in Camden.

Jeez thats a little harsh ... seems there's plenty of sea/beach access to be found along the Maine coast - one reason I love to visit your state.

 

[Vermonster]

For example the beautiful State of Maine boasts to tourists and visitors it's natural beauties, thousands of pristine lakes, rocky shores, islands and crispy clean beaches etc etc... What the tourist doesn't know is that most of these treasures are basically inaccessible to the public. The only way the tourist will experience these is to buy a flyover Maine video, buy a lobster roll and stay at a motel 6 somewhere in Camden.

This is not entirely correct. Access to ponds over 10 acres (Great Ponds) is available to all by Maine statute. Specifically:

No person on foot shall be denied access or egress over unimproved land to a great pond except that this provision shall not apply to access or egress over the land of a water company or a water district when the water from the great pond is utilized as a source for public water. Maine Revised Statute Title 17, Chapter 127, Section 3860

While the law technically could force one off a trail or woods road, in practice most landowners I've met would rather have people walking on the road. As always, it's best to ask first.

 

[peakbagger]

In regards to access to Maine areas, it does have a great ponds law that guarantees public access to water bodies over 10 acres even if that access is over private property. For some background see

http://en.wikipedia.org/wiki/Great_pond_(law)

http://www.mainelegislature.org/legis/Statutes/17/title17sec3860.html

Just because the legal right is there, doesnt mean that a landowner cant try to keep people off their land, its just that if it goes to court they have a shaky leg to stand on. The landowner does have the right to block their private roads with gates to prevent vehicular access so if the pond is 40 miles in on a logging road, its not particularly practical. Generally the right is for "fishing or fowling", so make sure you have your shotgun or fishing rod strapped to the boat . A similiar law applies to the intertidal zone along the coast, folks have no inherent right to lay out on a beach towel on a private beach but they do have the right to fish or fowl.

Many towns along the coast had established "seashore drive" or some equivalent long ago to retain public access to intertidal zones, unfortunately I am not sure if all of them filled out the paperwork to retain these "paper streets" several years back when the rights would revert to the abutters if the towns did not reclaim their rights. Many of the islands off Portland had these. Prouts Neck a very exclusive colony n Scarborough Maine, used to have a "seashore drive", all the way around the neck on the seashore, if you tried to access from the adjacent state beach, a guard would meet you as you walked across the posted beach and hassle you. If you directly told him you were accessing the public right of way, he would grumble and let you pass, but if you didnt say the magic words, he would threaten you with arrest. (I dont know if Scarborough retained the rights so better check before you go) .

Is this access convenient, with a nice parking lot and boat ramp, not really but it is there, you just have to look for it and know your rights. I expect that was the intent of the NY case to make sure that a public right is not being infringed upon by a private landowner.

 

[MichaelJ]

No person on foot shall be denied access or egress over unimproved land to a great pond

What if the great pond is entirely surrounded by improved land?

 

[Remix]

Great one for the courts.....I think the Explorer Editor should be commended for exposing the issue to the paddling community so that the paddling side can marshall their resources.

 

[ALGonquin Bob]

The paddling community was well aware of the situation and the issues at stake. The "Explorer" merely aggravated and escalated a situation without being willing to follow through to resolution. Now, there are motion-activated trail cams ready to obtain photographic proof against any paddler trying to pass through that section of the brook. The ability to paddle the disputed waterway undetected has been lost, and nothing has been gained from that stunt (well, they did sell some "magazines"), since the publication (I'll be polite) is unwilling to follow up on their act of defiance against the landowner. This issue will not go to court until someone is willing to be charged with trespassing, plead innocent, and fight it in court. Personally, I don't have the funds or inclination to be arrested and fight the charges; and the Explorer editor seems to be in the same "boat"...

 

[Explorer Editor]

Explorer replies to ALGonquin Bob

Bob is too harsh and too hasty in his condemnation of the Explorer article. In the past, he says, people were able to paddle "undetected" on Shingle Shanty Brook. His choice of words suggests that doing so was either definitely illegal or just maybe illegal. Many people would not want to paddle the waterway in such circumstances. And yet a good argument can be made--and has been made by legal experts--that the public has the right to paddle this waterway. Bob says nothing has been gained by publishing our story. To the contrary, the Sierra Club has petitioned DEC to remove the cable and signs intended to discourage the public from paddling the brook. DEC and the AG's office are looking into the matter. However the state rules, if this results in clarification of the legal situation, that would be a good thing. What's more, the story has galvanized the club to step up efforts to codify in statute the common law right of public navigation. That's another good thing that may come out of this story. But beyond these things, the story informed readers of a legal controversy that they may not have been aware of. Informing the public is the first job of journalism. If we can effect some good in the process, so much the better.

 

[Stan]

I can understand how ALGonquin Bob, and it sounds like other paddlers, too, would prefer to let sleeping dogs lie and apparently enjoy what sounds perhaps like a surreptitious utilization of the stream counter to a landowner's wishes, whether those wishes are defensible or not.

I can also understand how a landowner with riparian rights would wish to defend those rights. There would seem to be some supporting sentiment for a responsible landowner using those riparian rights to undertake research that may be in the public good.

I'm not a lawyer but I don't think that either paddling under the radar or riparian rights trump navigation rights and that riparian and navigation rights must find a way to coexist or else present a compelling case why they can't. Navigation rights are so deeply embedded in history, tradition and common law that I would be surprised if they were constrained in any way by the draft or method of propulsion of a vessel.

Other than the article, I'm totally unfamiliar with this area and this case so I may be naive in suggesting that, if ALGonquin Bob and others can get through without disturbing the riparian rights, then others could too and, if there are some constraints or caution that should be exercised, then the owner has a responsibility to post them and mark them but not entirely block passage unless through some temporary license granted by the authority with jurisdiction.

 

[MikeT]

This Important Discussion Continues

There are at least two (2) sides to every issue.

Check out fisher39's posts on the ADK Forum:
http://www.adkforum.com/showthread.php?t=13505

Also, per Explorer Editor (aka "adkeditor" on ADK Forum and on P-net), there is a "heated debate" going on about this topic:
http://www.adirondackalmanack.com/2010/04/phil-brown-long-standstill-over.html

Mike