The State of New York DEC, supported by the NYS Atty General, has joined the resolution over navigability of Shingle Shanty Brook.
The Atty General’s suit contends that, as the DEC has deemed the brook navigable, the Friends of Thayer lake and Brandreth Association must remove cables, signs and cameras and cease and desist resisting legal passage of canoes and kayaks.
While the issue will still be decided in court, probably before a judge rather than a jury, this takes pressure off the Adirondack Explorer and it’s editor; the state government will carry the load.
all to the good!
Good for DEC
…my old employer. Glad to hear they have joined in. I hope it does not take years to get a decision.
Alan (paddling in Louisiana).
That is good news. Thanks.
Per Phil Collins:
– Last Updated: Feb-27-11 7:54 PM EST –
"We always need to hear both sides of the story."
Neil, an administrator of the ADK Forum, hits the nail on the head:
http://www.adkforum.com/showthread.php?t=15259
[QUOTE=Neil;165386]Yes, and instead of working together in good faith to find a solution to a problem the "participating" parties choose to "oppose" each other and expend great amounts of creative and intelligent energy puruing this non-productive exercise of mutual vilification.
It's called "how things get done".[/QUOTE]
The litgation of one New York stream at at time goes on and on.
Mike
Opportunity
This case offers the opportunity to set a precedent, that when DEC declares a stream to be navigable, it will be supported as so by the courts, hence not worth disputing in court.
In the 80’s when I was living in Illinois, I thought NYS’s “coddling” of very rich, very special, interests wrong and reactionary.
WE had a chance to set legal precedent with the Moose River case in the 90’s but a settlement precluded significant change.
Here we are again, a coupe decades later, except the NYS gov has the pockets to push this thing to resolution that will set policy.
What a pitfall !
You do realize that the opponents will have to start wearing bathing suits and other means of dress when in and near the streams.
On a more serious note, there has been little ill effects of the snowmobile trail system which passes over the lands we lease for hunting in Big Moose, NY. I’d expect there would be less from paddlers.
Like I said. They will have to start wearing clothes.
Disagree on some of this
—>“This case offers the opportunity to set a precedent, that when DEC declares a stream to be navigable, it will be supported as so by the courts, hence not worth disputing in court.”
No, the DEC has no legal authority to declare streams navigable. Only the courts do. The trial court will listen to the DEC’s proffered facts re navigability and also the riparian owner’s proffered facts re non-navigability, and then weigh all the facts under the appropriate burden proof standard. After that, there are two levels of judicial appeals. Same for the next navigability case that comes along.
—>“WE had a chance to set legal precedent with the Moose River case in the 90’s but a settlement precluded significant change.”
I wouldn’t characterize the Moose River Case result that way at all. The case changed the legal definition of “navigability” in New York to include recreational factors, thereby making the definition a lot more favorable to paddler access. It’s true that Court of Appeals did not go on the rule on the navigability of the Middle Moose, but sent the case back to the lower court for a full trial on that issue. Rather than litigate, however, the parties agreed to a settlement agreement that gave paddlers full access to the river from May to October as long as the river is at a certain minimum gauge level. Hence, via settlement, paddlers got just about everything they could have gotten re the Middle Moose via trial.
—>“Here we are again, a coupe decades later, except the NYS gov has the pockets to push this thing to resolution that will set policy.”
The NYS AG does indeed have deeper pockets than the current defendant, if the judge lets the AG into the case. However, this is arguably a risky test case for paddlers to litigate navigability under the new legal definition. It involves only a two mile stretch of meandering swampy stream that already has a 0.8 mile state maintained portage around it. It likely lacks many of the paddler-favorable facts that were present in the Moose River Case. Finally, no policy or legal precedent will be set by a purely factual determination of navigability or non-navigability of this small water body, especially if there is just a jury decision with no judicial opinion. The next case will have to be litigated on its own facts.
hey mr. wilson
got a link to follow whats goin on up there ?
Thanks !
Could be the time to make a contribution to the judges reelection campaign !
The REAL winners will be the lawyers fees , no mater what the laws say they 'll argue it an bill it .
thanks all