Property Rights Foundation of America®
Founded 1994

A Question of Navigability

Dennis J. Phillips, Esq.
Senior Partner
McPhillips Fitzgerald & Cullum L.L.P.
Glens Falls, N. Y.

Twentieth Annual National Conference on
Private Property Rights
October 22, 2016
The Century House, Latham, N.Y.

 

Thank you very much, Carol. I’ll put this right next to my mouth so everybody can hear. It is nice to be here. I’ve spoken at this meeting before a number of years ago. It’s nice to be here to see some of my old friends: Captain Pohl from Raquette Lake, who’s the captain of the W.W. Durant, the best cruise in the Adirondacks; Susan Allen, who was with me in the creation of the Adirondack Fairness Coalition along with Fred Monroe and Andy Halloran back in the late ’80s and early ’90s. John Salvador is here. John and I have been conversing for years and years on private property rights and John is not afraid to take on the powers that be, as well. So, it’s good to see John here.

Yesterday, I met Jonathan Wood of the Pacific Legal Foundation. I asked him what year he graduated from NYU Law and he said, “2012.” Of course, I was 1974, so, I have a couple of years on him. But I was thinking that it was so nice to see another generation coming along that would be involved in private property rights because as Susan, and Carol, and I were talking just earlier today, there’s a lot of gray hair in this room but there are not a lot of young people in this room or involved in this issue and we’re hoping that we can find them.

This spring, I was really given the privilege by a client to take a case to the Court of Appeals, which is the highest court in New York. And, of course, by virtue of the fact that I was taking the case, that meant that I had lost the case at the court before on a 3-2 vote. But never having been to the Court of Appeals before, although I have been in many of the Appellate Division courts around the state, I thought that maybe I should get a sense of what it would be like. I saw that Mr. Schultz had a picture of the Court of Appeals up on the screen earlier when I walked in the room. From a lawyer’s perspective, it’s always good to get a sense of the environment you are going to be entering so that the environment does not intimidate you or frighten you or give you more butterflies in your stomach than you normally would have.

So, one day when I was in Albany, I stopped by at the Court of Appeals and said to the guards if tours were available. The guard was very accommodating and said, “Well, there’s a lady over here who will gladly show you the Court of Appeals.” And so I said, “That would be great.” She took me into the Court of Appeals courtroom. It’s totally refurbished. Beautiful. It has portraits of all of these Court of Appeals justices in the state including John Jay who was the first Chief Justice of the United States Supreme Court. But if you’ve not been there, it’s worthwhile as a historical trip to make that tour because it really is an awesome court. As I was looking at the bench and imagining myself pleading to the Court of Appeals, my tour guide said to me, “Would you like to sit in the Chief Justice’s seat?” And I said, “You know what, that’s a good idea. I’ll do that.” And so, I went around and sat in the seat of the Chief Justice and she said to me, “Would you like to have your picture taken in that seat?” I said, “Yup, that’s a great idea. I will do that, as well.” And so she snapped a picture and I have a picture of myself in the Chief Justice’s seat of the New York Court of Appeals.

There was no oral argument going on that day and I wanted to see how the judges acted and how the lawyers who were pleading reacted to questions from the bench because in my case, even though my brief was 192 pages long, the court gave me twelve minutes in which to make my argument. The state attorney general had six minutes and the other party had six minutes. It turned out that we had a half and hour but they allocated twelve minutes for my argument at the beginning.

So, I went back to Albany another time when I was there and I watched the interchange between the bench and the lawyers arguing the case. I noticed that the lawyers who were arguing the case weren’t as quick as I thought they should be. I was thinking that as I was growing up my mother was a school librarian and she was a big reader and she was a big Jeopardy! fan. She made us watch Jeopardy! We had to watch Jeopardy! She always wanted us to be quick in terms of knowing something and being able to get it out of our mouths very quickly. So, I said, “You know what? This is kind of like a Jeopardy! contest when you go to the Court of Appeals.” You have to anticipate some of the questions that would be asked. I was noticing that some of the lawyers would fumble on the questions and they really weren’t quick in terms of the responses. Some of the questions were dumb questions, too. I mean, judges do ask dumb questions at times. The first thing that goes through your mind when they ask you those questions is, “Why are you asking me that dumb question?” But… you can’t say that. And you can’t even think it for a long period of time. You’ve got to hit that buzzer and let it go by, you know?

I went back to the court another time and I said, “You know, I really have to get this down. I have to really get a sense of what this is like because none of these lawyers are making this their forum. They’re letting the judges control this forum.” And I was thinking that I’m going to the Court of Appeals when I’m 70 years old. I’m the oldest guy in the room. Everybody sitting on the bench has mandatory retirement from the Court of Appeals at age 70. I’m figuring I’m probably more experienced than a lot of these people although they’ve been very good being on a state payroll for a long time. I decided that I was going to go into that room and be as prepared as I possibly could in terms of the Jeopardy! game that I was going to be playing with these justices. I had some teaching background, too, in my early career at a private school in New York. I was thinking that maybe I can turn this into a teaching moment so that when they ask me a question, I come back with a teaching moment as opposed to blurting out a question. I was trying to put myself in that mindset. The interesting thing was that I was dealing with a brand new court, in the sense that the court that I argued to was the first court in the history of the Court of Appeals in New York where the majority was a female majority 4-3. I was dealing with a new court in the sense that Governor Cuomo had appointed six out of the seven justices on the court. Two of them had just been confirmed by the Senate like a month before my argument.

As I’m thinking of the backgrounds of these justices, I’m trying to say that this may not be good because I have a conservative legal principle and I’m going into a court that has been appointed predominately by Governor Cuomo, who, of course, is a Democrat but I think he’s a very smart Democrat. I’m looking at some of his appointees. His most recent appointee was the Chief Judge, Janet DiFiore. She had been the district attorney of Westchester County. She had experience in the judiciary. I was thinking the district attorneys normally have a sense of a rule of law because they’re dealing with statutes. They’re going to follow a rule of law. I thought that, well, that’s not so bad. She’s got some real serious legal experience.

Another new appointee was Judge [Michael] Garcia, who had been the U.S. Attorney for the Southern District of New York. That is really a hotbed of legal activity and you have to be smart and political and qualified to be in that position. I noted that he had been the valedictorian of his class at Albany Law School and he had law clerked for Judge Kaye who had been a former chief justice of the court. I thought he was going to be a rule-of-law kind of person.

Judge [Eugene F.] Pigott was a holdover Governor-Pataki justice. I thought that he probably would be my most favorable justice. It turned out that I think he was. He asked me a nice question that I answered. The other justices were from New York and they were tough. They came out of a very liberal background. I was worried about them a little bit and with a couple of questions I think my worries were justified. Anyway, I got through the argument, which was probably the pinnacle of my legal career to this point. Someone said to me after the argument, “Well, how do you feel about that argument?” And I said, “Well, I wish I were forty,” because it really was a thrill to be arguing in front of the highest court in New York.

The case involves a canoer. The case involved a recreational right. In New York, canoeing is a private property right. Hunting is a private property right. Hiking is a private property right. Cross country skiing is a private property right. Snowmobiling is a private property right. So, the facts of my case — and I’ll go off the mic. I’ll just quickly show you the facts of my case because that will put in perspective what I’m going to say. The facts of my case are that… Here’s an area over here called Lake Lila and that was in private ownership going back to 1787. It was in private ownership from 1787 to 1979 when it was purchased by the State of New York for about two million dollars. Up until 1979 there was no private access to that property. It’s in one of the most remote parts of the Adirondack Park where there’s nothing but woods, trees, lakes, hills, and valleys.

This other tract of land, which is Little Tupper Lake, was the Whitney estate. This was purchased in 1998 for almost fourteen million dollars. That, too, had been put into the private sector by the state in 1787. Up until 1998 there was no public access to that property. Each of these owners were large wealthy families who were practicing their right to exclude, pursuant to their private property rights. So, between the Lila purchase by the state in 1979 for two million and the Whitney estate purchase by the state in 1998 for fourteen million, the State of New York had invested about sixteen million dollars in buying these properties for their recreational values so they could provide those recreational values as a matter of public policy to the people of the State of New York and the U.S. and the world.

Our clients, the Friends of Thayer Lake, own this property in the white over here. This property had been in their family since 1851, again, a purchase from the state. It was in the form of letters patent from the state, which is in the nature of a land grant. Continuously since 1851, the same family continued to own the recreational rights to this property even though the fee changed hands a couple of times because they couldn’t afford the taxes a couple of times. One time they gave it away to Syracuse University and then Syracuse University didn’t want it. They bought it back. Then they sold it to International Paper Company. International Paper Company stripped the timber off it and then sold it to The Nature Conservancy but The Nature Conservancy put a conservation easement on it and then they bought it back in 2007. But they always retained the recreational rights. They never let the recreational rights go. So, a very interesting history.

When the state bought these two properties, it combined these two properties. And you’ll see in the green that it combined these two properties and called it the William C. Whitney Wilderness, which is a very, very remote wilderness in this State of New York. When they bought the Whitney part of it before the combination, the State said, “Let’s do a canoe route in this area because we can string a canoe route through a series of carries and go from Little Tupper Lake to Rock Pond to Hardigan Pond to Little Salmon Lake to Lilypad Pond. We could do a portage from Lilypad Pond on our own land over to Shingle Shanty Brook which goes into Lake Lila and we can provide a twenty-mile canoe route for a wilderness canoer.” All on State land bought and paid for, for sixteen million dollars. So, that became part of their proposal for the acquisition. They put that through our State Environmental Quality Review Act in New York (SEQRA) and they said, “By virtue of the fact that we do a portage here, all on state land, we will not have any interference with private property rights. We will respect the private property rights of the Brandreth family, the Friends of Thayer Lake.” And that’s all in the record that was developed in disclosure as we went through disclosure for this case.

Then in May of 2009, there’s this guy, Bill Brown, he’s the editor of the Adirondack Explorer, which is a newspaper in the Adirondack Park, which is pretty much funded by the environmental community or the community that does not respect private property rights. He took a canoe trip. He put in at Little Tupper Lake. He canoed across the system of lakes. He camped out at Hardigan Pond one night. Then he came over here to Lilypad Pond, which is right on the boundary. He could have taken the portage which had been laid out for him but he said, “You know what, it would be a lot easier for me if I just used private land for my canoe trip instead of taking that .7-mile portage across the state land.” He paddled to this boundary line, which had posters on it. The posters on this property line went back to 1878, approximately. And he said, “I think I’ll just use the private land.” So, he paddled to the end of Mud Pond and then at that point you can’t paddle any more because the outlet of Mud Pond turns into an outlet brook probably as wide as from me to the lectern over there. It was found that it ranged in depth between four inches and seventeen inches deep, on average. He couldn’t paddle that. He had to portage around some rapids on that part of the property and then he was able to paddle on the outlet brook. He picked up this other brook, came back on the state land and then went to Lake Lila. So, basically, he looped off the state land, used and enjoyed private land, and then came back on state land.

The family has a camp right there on the boundary, which is their historic hunting and fishing camp. It’s kind of like their sacred ground that they had used going back to 1918 when that camp was built. They have a network of trails that go out from that camp so they can hunt and fish and trap, that kind of thing. That’s why they kept it private but probably even if they didn’t have that area posted they wouldn’t have had to post it because nobody could get there with all this other private land going back to 1787 for the most part. But this guy, this editor, says, “You know what, this is a great thing that the State of New York has done for me, buying me this canoe route for sixteen million dollars, but wouldn’t it be better if I just used the private land? Then I wouldn’t have to carry my canoe .7 miles. Now, I do have to carry my canoe about one tenth of a mile and that actually turns out to be a quarter of a mile. But it would be great if I only had to do it a quarter of a mile instead of seven tenths of a mile. So, I’ll just do it this way.”

Then he wrote an article about this in his newspaper — a front-page article in his newspaper and saying, “Hey, everybody ought to do this. This is a great trip. Yeah, you have to use some private land but I think the law of the State of New York is that if we can prove that you can use this waterway recreationally, then there is a public easement over this property and anybody can use it.” And that’s what he wrote in his article.

So, the Friends of Thayer Lake is a family group. Now there are ninety family members. It’s like a municipality. They said, “This has been private land for a long period of time. We don’t really like the idea that we’re paying taxes on this property to the extent of fifty thousand dollars a year and all of a sudden we might have people coming to the end of this pond and this is where they get out of their canoe and they might have to do their business there. And they might lose their sneakers and lose their equipment and create some litter and some liability. So, why don’t we sue them because you’re not understanding the law of New York if you thimk that a recreational use of water as it crosses real property will provide for a public easement. Now, it is the law of New York that we have this concept of law called the Navigability for Commerce rule that goes back to the Nineteenth Century where if a waterway is necessary for the commerce of the state then that waterway is open to the public and that relates to a reserve power of the state going to the issue of the sovereignty of the state. It’s really one of these magical sovereignty things where the state says, “Oh, you didn’t know that we had an interest in your property? Well, we do if it can be proved by a commercial use that’s necessary for the commerce of the state.” So, that’s understandable. However, the rule never was that a recreational use was necessary for the commerce of the state to open up a waterway on [private] land for public use.

That is what the issue was in this case and, of course, as you go back behind the issue, we go back to our friends at the Department of Environmental Conservation and we go back to our friends in the Sierra Club. Through an unholy alliance of the Sierra Club and some staff members of DEC and some lawyers in the Department of Law, also canoers, members of the Adirondack Mountain Club, members of the Sierra Club, they basically had this idea that in New York there should be a universal right of navigation. I refer to it, when I was arguing this in Supreme Court, as “Have Canoe, Will Travel.” It’s the old Paladin thing you saw when you were growing up, for some of us who remember that long ago. Have Gun, Will Travel. Well, Have Canoe, Will Travel. That’s what it was. So, they had this idea that there was a universal right of navigation. They had brought a case against the Adirondack League Club earlier in the 1990s. It went to the Court of Appeals. Similar to our case, the League Club lost in the Appellate Division 3-2. It went to the Court of Appeals and it was thrown out and sent back to the trial court for trail. But a trial never took place. They settled the case.

But the case was very poorly written by the Court of Appeals. The court was understaffed in the sense [that] they only had five judges. I think that they were so confused by the fact that the state was involved, that the Rocky Mountain Club was involved, the Sierra Club was involved, I think the court was conflicted at that time by the politics of the case. The way they wrote the case is that even though it was a log driving case which related to log driving and as necessary during the Nineteenth and early Twentieth Centuries to get wood to market, they kind of conflated log driving and canoeing to the point where the Sierra Club was arguing that what the court really said, in the Adirondack League Club case, was a recreational use in New York was enough to open up private property to public use.
Our case, as it came through the system, was this: Did New York adopt, in the Adirondack League Club case, a recreational use standard? And was recreational use the fact that you could float a canoe from state land across private land and go back to state land, was that enough to open up private land to a public use? The Supreme Court, which peculiarly in New York is the lowest court. It’s not the highest court. We’re kind of backwards in that sense in New York. In the Supreme Court, a one-judge court, the judge held against the property owner and interpreted the Adirondack League Club case as argued by the state and as argued by the Sierra Club, that it meant that if you could canoe it in New York, it was open to the public.

We appealed that to the Appellate Division, which is a five-judge court, and when I stepped to the lectern to argue this case in the Appellate Division, I had Judge [Robert S.] Rose sitting on my left. I had Judge [Elizabeth A.] Garry sitting on my right. Judge Garry wrote the opinion against me and Judge Rose said to me, “Well, Dennis, what about this beaver trapping that took place on this property by the family members back in the Thirties and the Forties?” And I said, “Well, Judge, trapping is a recreation in New York. All the trapping that was being done was on private land, a person’s own land. The waterway was not used to take beaver pelts to market. They could use the waterway to get the beaver pelts to a point within six miles of a place where they could get off their property.” We’re talking about 24,000 acres of land here, like 44 square miles, big. But I said, “There’s no market at the edges of this property whereby this would be an avenue for commerce to get these beaver pelts off the property.” Judge Rose, who wrote the dissent said, “Okay.” And suddenly we went through the arguments and Judge [Karen K.] Peters, who was the Presiding Judge of the Appellate Division, said to me, “Well, Mr. Phillips, what does it matter?” I thought that was an intriguing question. You know, she kind of dismissed me by saying, “What does it matter?” And then I said, “Well, Judge, the common law of New York matters.” And I said, “If this court upholds the Supreme Court, it’s the position of the Appellates that will change the common law of New York.” To which she responds, “Oh.” And then Judge [Michael C.] Lynch, who was on my far right, far left of the court, then says to me, “Well, Mr. Phillips, what about this beaver trapping? Weren’t your people in the trapping business?” And I said, “There’s nothing in this record that indicates that our people were in the trapping business. They testified that they did it as a hobby, as a recreation. They did it with their family.” And I said in New York that’s a private property right. “Well, Mr. Phillips, didn’t they take these pelts and sell them at market?”

“Well, they did but if you look at the record, they got $90 for them one year. And in another year they got $35. That’s not the kind of substantial commerce we’re talking about in New York that would open up these waterways to any kind of a public use.” But he’d asked the question in a very hostile manner, which I thought was peculiar. And then oral argument ended. I had an associate with me who was listening to the argument and as I came to him and we’re walking out the door he said to me, “What did you think of that argument?” I said to him, “I think I’ve just been f’ed by a beaver.” And he said. “What do you mean?” I said, “That last question was just out of sight. That was so off the topic. I’m blindsided by the fact that they would even ask questions, first question and last question, on the beavers.” The state attorney general’s office, however, had argued in their brief that the owners of the property at their remote hunting camp, probably 100 square feet big, were in the fur trading business and the trapping business. So, sure enough, when the decision came out one of the lynchpins of the decision was that there was evidence in the record that there had been commercial trapping activity on the property back in the Twenties and the Thirties, which was appalling when I read that. In the 3-2 decision of the Appellate Division, the majority relied on two or three things that were all personal uses and enjoyment of the property almost as if to punish the landowners for the fact that they own property and they could exclusively own it and they could exclude the public from that property.

The majority decision, as I read it, was not a rule-of-law decision. It was a political philosophy decision where the majority of the court was importing a political philosophy into the common law of New York. That, of course, was appealed to the Court of Appeals. Very few cases get to the Court of appeals in New York, but if you’re 3-2 you get into the Court of Appeals as a matter of right. The Appellate division in their decision was, I think, feeling pretty guilty about what they had done. By the way, the day of the argument in the Appellate Division, the 3-2 case against me, that day when I walked into the court I think the entire Department of Law of the state of New York was there. They had twenty-five attorneys general or assistant attorney general people in the court and I’m saying to myself, “Isn’t this interesting?” This is an intimidation tactic when you put the whole Department of Law into my case. In the majority decision they wrote the historic “footnote 5.” I’ll read footnote 5 to you. This is a majority opinion in an appellate court in New York. This is what they say:

Our legal analysis applies established precedent, but it bears noting that, in this circumstance, there are some troubling results left unaddressed. Prior to the States acquisition of the adjoining lands, there was no question that the Waterway was understood to be private property, not subject to public use.” That only went back to 1787. It goes on to say, … it appears most unlikely that anyone contemplated that this remote property was burdened by a public easement of any nature when the property was conveyed into private hands in 1851, or indeed, at any time prior to the States purchase of the adjoining lands. …we share the dissents concern that the application of the rule in cases such as this may destabilize long-established expectations as to the nature of private ownership…”

This is a footnote to a majority decision. When I read this footnote, I’d never seen anything like this and the lawyers that I dealt with at Pacific Legal Foundation, Empire State Forest Products Association, Adirondack Landowners Association, Farm Bureau, who all came in as amicus to our position, had never seen anything like that, either. And so, I was thinking, “This is interesting.” They’re trying to blame this on somebody else. They’re trying to blame their decision on what the Court of Appeals said in the Adirondack League Club Case by basically saying that “the Devil made me do it.” You know, we really didn’t want to reach this conclusion but because of the Adirondack League Club case, the Devil made me do it. This is what we had to do in order to apply the law because they began by saying, “Our legal analysis applies established precedent.” Or the alternative is that they were just covering up. And they’re covering up their own political philosophy that they have imported into the case and they kind of covered it up under this language.

But it was telling to me that they were really just caving to the position of the State of New York by even putting this footnote in there to begin with. This was just covering up their decision so I was not impressed by that. What we did is we went to the Court of Appeals. We had our arguments. What happens in these cases as they evolve, they become more complex and you learn things and think of things that you didn’t think of early on. When we first started this case our simplistic position was that canoeing is a recreation. There’s nothing in the juris prudence of the state that says that canoeing as a recreation will open up private property to public use. Period! So, we’re focusing on that. When we got this decision from the Appellate Division, 3-2 against us and with a footnote, we said, “Okay, this is serious.” What we have here is a court case that is changing the fundamental law of New York from a commercial standard for opening up private property to a recreational standard. That in effect is a taking of a private property right.

Fortunately, we had a Supreme Court of the United States case that was decided, I think, in the year 2010, written by the late Justice Scalia, may he rest in peace because Justice Scalia has been a hero for all of us in the area of private property rights. Justice Scalia had looked at this taking issue from a number of different perspectives and he had said in a case called Stop the Beach Renourishment v. Florida Department of Environmental Protection, “The takings clause… is not addressed to the action of a specific branch or branches,” referring to branches of government. “It is concerned simply with the act, and not with the governmental actor… There is no textual justification for saying that the existence or the scope of a State’s power to expropriate private property without just compensation varies according to the branch of government effecting the expropriation. Nor does common sense recommend such a principle. It would be absurd to allow a State to do by judicial decree what the takings Clause forbids it to do by legislative fiat.” In other words, Judge Scalia and a plurality of the court developed the idea that just like legislatures can take property, local governments can take property, judges can take property, if they substantially change the common law of the state.

So, in our arguments before the Court of Appeals, we argued that the decision of the Appellate Division, 3-2, had so fundamentally changed the law of New York, so as to substitute a recreational use basis instead of a commercial use basis for opening up private property to a public easement that this constituted a taking by the judiciary. I think that acted as a constraint. I think that the Court of Appeals when they saw this argument said, “Oh, this is interesting.” I don’t think the courts before that Stop the Beach case written by Scalia had thought much in terms about whether there could be judicial takings. But I think it’s the kind of thing where maybe that case has now put courts into a position where they might look over their shoulder a little bit and say, “Well, before we become judicial legislators maybe we better look back and see if we’ve got an issue with that.”

The Court of Appeals in its decision after Judge Pigott said to me toward the very end, “Well, Mr. Phillips, isn’t this just a case of a need versus a want where the state and the canoer really don’t need this but they want it?” I had thought about this need versus want on a number of occasions. I had thought that I would do some historical analysis of that in my brief. I began to think of all of the great invasions that had taken place in world history. The two that I’d thought of really were the Nazi invasion of Poland in 1939 and then the Nazi invasion of Russia in 1941. They were pretty significant invasions. The ’41 invasion of Russia was the invasion that triggered the magnificent words of Winston Churchill in his broadcast where he basically said, “We’ll fight them anywhere.” But when Judge Pigott raised that question, I knew from my study of the justices that Judge [Eugene M.] Fahey in the court had a Masters Degree in European History. I figured that anybody that had a Masters Degree in European History was going to know a lot about Nazism, Nazi Germany, and the German invasions of Poland and Russia. And so, when he raised that “need versus want” question I said to Judge Pigott in the bench, “Well, the extreme case of that, although it’s not in the briefs” — I said not in the briefs because I was thinking of putting it in there — “would be the invasion of Poland by the Nazis in 1939. Hilter didn’t need Poland he just wanted it.” Then there were a couple of other questions. Then the case was over.

By the way, when you walk into the Court of Appeals, generally speaking, the Court of Appeals is a very sedate court. But the day I was there when I walked into the Court of Appeals they had a bank of photographers to the right of the bench. They had a battery of reporters in the gallery. And as I’m walking to the lectern I’m hearing all these cameras snapping, taking my picture, and that had all been staged, again, by the Department of Law, by the Sierra Club, by the defendant in the case, because of the power of that lobby in Albany and again because of what I refer to as the unholy alliance between DEC, the Sierra Club, the Mountain Club. Those people who are in those organizations kind of trade back and forth between state work and not-for-profit work. It was kind of like a circus atmosphere when I walked in there. But fortunately having been there before, I just kind of thought to myself as I walked into that atmosphere, “This is interesting.” But then in the lobby afterwards my reference to Nazi Germany — probably fifteen seconds in the record — this guy from the Times Union shoved this mike in my face and he said to me, “Are you saying that Bill Brown is a Nazi?” I said, “I don’t think I said that. I think I responded to a question of Judge Pigott.” “Well, you think he’s like Hitler?” he said. And I said, “That’s not what I said. I was asked a question and I answered the question with the extreme case.” Of course, the headline the next day in the Times Union is that, “Phillips calls Bill Brown a Nazi.” Like invading Poland in 1939. That was the story. My reference to Hitler was the story. I think it was the story because the questioning from the bench was good questioning and we actually thought that we could have won that case and we were kind of hedging our bets and we’re thinking that, gee, we had some good questions on our side coming from the bench, and questions on their side coming from the bench, too. But they seemed like balanced questions and maybe they had to make this into a Nazi circus because they didn’t like the questions that they were getting from the bench.

Then, of course, we waited for a bit and the decision was handed down and much to our gratification the case was thrown out. It was thrown out interestingly on the ground that neither side had made the factual case for summary judgment. The court listed five more things it wanted to have in the record before decision finally could be made. The five things were: They wanted to know about the waterway’s historical and perspective commercial utility. So, when I saw that I said, “Well, that was all in the record.” They wanted to know about the waterway’s historical accessibility to the public. I said, “Gosh, that was in the record.” Their footnote 5 talked about how everybody thought this was private property going back to 1787. So, that was in the record. They wanted to know the relative ease of passage by canoe over this Mud Pond outlet brook. And in the Appellate Division case both the majority and the dissent said, if the family had not kept this cleaned up out for a hundred years almost, it would not have been passable and even then it’s only passable by a canoe. So, they found that in its natural state the waterway would not have been passable by canoe but they wanted more evidence on that. They wanted to know about the volume of historical travel. The records show that two trespassers were caught on the property between 1918 and 2009 before this trip by the canoer. So, too, that was in the record. They wanted to know about the volume of prospective commercial and recreational use. Here I have the highest court in New York wanting me to speculate on what might happen in the future relative to the use of this waterway.

When I looked at these things I’m saying to myself, “I think they kicked the can down the road and I think that they probably were doing the lower court a favor by not just doing an outright reversal.” Because I thought there should have been an outright reversal as a matter or law unless they want to change the law. If they change the law we’d be dead in the water on this thing. Probably there wouldn’t be much you can do, particularly now that Scalia is no longer on the Supreme Court of the United States. But we had talked about the judicial taking aspect of this if we lost in the Court of Appeals. But I think that probably the easy way out for the Court of Appeals was to say, “Well, go back and make a perfect record and then we’ll look at this thing all over again.”

So, that’s where we are. We’re back into a disclosure game to a certain degree. The beauty was that the State lost. We didn’t lose. We didn’t win. But we go back with a rule that has now been clarified by the court and the rule is in our favor because the rule now requires commercial use. The Court of Appeals said, “In Adirondack League Club, though we did ‘not broaden the standard for navigability-in-fact,’ we held that recreational use may [emphasis added] properly be ‘part of the navigability analysis,’” But recreational use becomes a supporting actor instead of a main actor because we still have commercial use as the driving force for what will open up private property to public use. We look at that finally when the court says the standard is “to be subject to this public easement a waterway must provide practical utility to the public…” — practical utility in the precedence means commercial utility, means money for the benefit of the public — “as a means for transportation whether for trade or travel.” The Court of Appeals did not define practical utility, to not define transportation but we think we have some precedential cases that help us on that. At least we know that the Court of Appeals did not change the law in New York. So, as we stand here today our position is that in New York we have a commercial use test before private property can be opened up for public use.

So, with that, thank you very much.

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