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Court of Appeals State of New York To be Argued by: DENNIS J. PHILLIPS, ESQ. (Time Requested: 30 Minutes) APL-2015-00051 Hamilton County Clerk’s Index No. 6803-2010 Court of Appeals of the State of New York FRIENDS OF THAYER LAKE LLC; BRANDRETH PARK ASSOCIATION, CATHRYN POTTER, AS TREASURER; BRANDRETH PARK ASSOCIATION RECREATIONAL TRUST, CATHRYN POTTER, AS INITIAL TRUSTEE; AND WILLIAM L. BINGHAM, JR., INDIVIDUALLY AND AS A REPRESENTATIVE MEMBER OF THE BRANDRETH PARK ASSOCIATION AND A REPRESENTATIVE BENEFICIARY OF THE BRANDRETH PARK ASSOCIATION RECREATIONAL TRUST, Plaintiffs-Appellants, – against – PHIL BROWN, Defendant-Respondent, and JANE DOE (THE “LADY IN RED”) AND ANY OTHER PERSON, KNOWN OR UNKNOWN, Defendant, – and – THE STATE OF NEW YORK and the NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION, Intervenors-Defendants-Respondents. REPLY BRIEF FOR PLAINTIFFS-APPELLANTS MCPHILLIPS, FITZGERALD & CULLUM, L.L.P. Dennis J. Phillips, Esq. Attorneys for Plaintiffs-Appellants 288 Glen Street, Post Office Box 299 Glens Falls, New York 12801 Tel.: (518) 792-1174 Fax: (518) 792-1675 Date of Completion: October 29, 2015 TABLE OF CONTENTS TABLE OF AUTHORITIES......................................... iii PRELIMINARY STATEMENT ...................................... 1 ARGUMENTS.....................................................7 POINT 1..........................................................7 BRANDRETH PARK (1851) AND ADJOINING LAKE LILA TRACT (1787) AND ADJOINING WHITNEY TRACT (1787) ARE LANDS WHOSE WATERS AND WATERWAYS NEVER WERE AND ARE NOT NOW HIGHWAYS FOR COMMERCE AND ARE NOT SUBJECT TO A PUBLIC EASEMENT AS MEASURED BY THE NAVIGABLE-IN-FACT EXCEPTION TO PRIVATE OWNERSHIP THAT TRUMPS THE RIGHT TO EXCLUDE. POINT 2.........................................................19 THE COURT SHOULD SEE THROUGH THE ATTEMPTS OF THE DEFENDANTS TO “MAKE UP” COMMERCIAL USE OF THE MUD POND WATERWAY SO AS TO SUPPORT THEIR UNFOUNDED THEORY THAT THE RECREATION OF CANOEING CAN ESTABLISH A COMMON LAW EASEMENT AND A HIGHWAY FOR TRANSPORTATION AND/OR COMMERCE. A. E.R. Wallace Used Brandreth Park by Consent . 22 B. Wilderness Trapping is a Recreation and Potter’s Father Was Not Engaged in the Fur-Trapping Business . 25 C. David E. Cilley ..............................................32 D. Plaintiffs’ Personal Use and Enjoyment of the Mud Pond Parcel Should Not be a Consideration When the Right to Exclude is the Issue, as Opposed to Canoeing Use Supporting Log Floatation or Bridge Taxation. 40 i POINT 3.........................................................45 THE CENTRAL PREMISE OF THE COMMON-LAW REMAINS THE SAME: IN ORDER TO BE NAVIGABLE-IN-FACT, A RIVER MUST PROVIDE PRACTICAL UTILITY TO THE PUBLIC AS A MEANS OF TRANSPORTATION. A. Remoteness .................................................45 B. Necessity ...................................................47 C. Beaver Habitat...............................................48 POINT 4.........................................................50 A TAKING ISSUE IS, PER SE, BEFORE THE COURT IN ANY CASE WHERE NAVIGABILITY-IN-FACT IS TO BE DETERMINED, WHETHER BY LEGISLATIVE FIAT OR BY A JUDICIAL TAKING. CONCLUSION ...................................................52 ADDENDUM E Totten & Crossfield Purchase ADDENDUM F Map A, Outlying Camps Photo 1, St. Agnes, Mud Pond Logs Photo 2, Foot of Mud Pond Rapids, Mud Pond Logs ii TABLES OF AUTHORITIES CASES Adirondack League Club v. Sierra Club, 92 N.Y.2d 591 (1998) . passim Adirondack League Club v. Sierra Club, 201 A.D.2d 225 . passim In the Matter of Adirondack Mountain Club v. Adirondack Park Agency, 33 Misc.3d 383 (2011) .............................................37 Albright v. Mets, 217 A.D.2d 123, 126, 128-129, Third Department (1995).........................................26, 27 Bott v. Natural Resources Commission, 415 Mich. 45 (1982) . 37, 39 Julie Schafler Dale v. Chisholm, 67 AD3d 626 (2009) . 49, 54 (chart) William S. DeCamp v. Lemon Thomson, 16 A.D. 528, affirmed 159 N.Y. 436...................................43 Economy Light and Power Co. v. United States, 256 U.S. 113 (1921) . 28 Erie Railroad Company v. State Tax Commission, 266 A.D. 452 (1943) . 44 Friends of Thayer Lake, et al v. Brown, 126 A.D.3d 22 . passim Hale de Jure Maris; Ex Parte Jennings, 6 Cow. 518 . 15 Hanigan v. State of New York, 213 AD2d 80 (1995) . 39, 54 (chart) Helms v. Reid, 90 Misc.2d 583, 604 (1997) . 37, 38 The People of the State of New York ex rel Lehigh Valley Railway Co., et al v. State Tax Commission, 247 N.Y. 9 (1928) ..............................................43, 44 Mohawk Valley Ski Club, Inc. v. Town of Duanesburg, 304 AD2d 881 (2003) ........................................ 54 (chart) iii Morgan v. King, 35 N.Y. 454 (1886) .............................. passim Mountain Properties, Inc. v. Tyler Hill Realty, 767 A.D.2d 1096 (2001) ............................................39 Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, 557 U.S. 903 (2010) . 51 Town of North Elba v. William Grimditch, Jr., 98 A.D.3d 183, 192 (2012]) .........................................16 REGULATIONS 6 N.Y.C.R.R. § 190.8(a) ............................................37 STATUTES Environmental Conservation Law §15-2701 . 2, 3 Environmental Conservation Law § 15-2711 . 3 General Obligations Law §9-103 .....................................26 Navigation Law §2(5) ..................................26, 35, 54 (chart) MISCELLANEOUS The Adirondack Atlas, Jerry Jenkins with Andy Keal, Syracuse University Press, 2004 - Totten & Crossfield Purchase . 10 Brady, Maureen E., Defining ‘Navigability’: Balancing State-Court Flexibility and Private Rights in Waterways [March 5, 2015], Cardozo Law Review, Vol. 36, p. 1415. Available at SSRN: http://ssrn.com/abstract=2574356) ....................................51 Donaldson, A History of the Adirondacks, 51-61 (1921) . 8, 10, 11, 16 iv PRELIMINARY STATEMENT This case is about paddling in a canoe in the Adirondack Wilderness, plain and simple. More particularly, this case is about canoeing and hiking in the remote back country of the Adirondack Mountains in upstate New York, but at the same time it could be about canoeing and hiking in any part of the state where there are small private brooks and small private ponds. This case is not about logging, as was the case in Adirondack League Club v. Sierra Club, 92 N.Y.2d 591 (1998) (hereinafter “Adirondack League Club”) where the large and important South Branch of the Moose River (the “South Branch”) was involved, large in the sense that the segment of the river under review was 12 miles long with an average depth of three to four feet, and important in the sense that the river was used over the course of at least 50 years for floating logs to market; indeed, a “major driving stream,” one of the top five in the Adirondacks. (Adirondack League Club v. Sierra Club, 201 A.D.2d 225) Added to this physical and historical importance is the fact that the South Branch is a legislatively-designated scenic river under Article 15 of the Environmental Conservation Law’s Wild, Scenic and Recreational Rivers System, which means, as determined by the Legislature that the South Branch possesses “outstanding natural, scenic, historic, ecological and recreational values,” and therefore is one of those “certain selected rivers of the state” to be protected “for the benefit and enjoyment of present and future DJP-10/29/15 -1- generations.” (Environmental Conservation Law §15-2701) Although regulatory in purpose, this Court implicitly recognized the modern legislatively-designated importance of the South Branch by quoting language from Environmental Conservation Law - §15-2701 (Adirondack League Club at 603) At the same time, this Court explicitly recognized that only “some waterways are of such practicality” as to be “subject to an easement for public travel.” (Adirondack League Club at 601) In contrast to the South Branch, the small and shallow Mud Pond with an average depth of 15.5 inches; the three quarter mile small and shallow Mud Pond Outlet Brook tributary to Shingle Shanty Brook that Supreme Court found measures an average of 16 feet wide and 17 inches deep with a minimum width of 12 feet and a minimum depth of 4 inches”; and the one mile stretch of Shingle Shanty Brook that meanders through extensive wetlands and beaver country is not susceptible to logging and is not of any legislatively-recognized importance. As confirmed by the record and the decisions below, the Mud Pond Outlet Brook “has never been used to float pulp or timber logs to market,” (R.22-Supreme Court) and “it is incapable of transporting any timber, a traditional test for navigability.” (R.2452 - Dissent)1 The “practical, commercial use of the South Branch” was 1The Dissent in the Court below, Friends of Thayer Lake, et al v. Brown, 126 A.D. 3d 22, will hereinafter be referred to as the “Dissent” and the Majority in the Court Below as the “Majority.” The case shall be referred to as FOTL v. Brown. DJP-10/29/15 -2- logging. (Adirondack League Club at 606) Here, there is no history of such use and no physical capacity for such use. Moreover, unlike the South Branch, the constituent water bodies of the Mud Pond Waterway (two ponds and two brooks) do not constitute a river and are not within the “certain selected rivers of the state” category that have a special designation. [“No waterways occur within the Area that are classified under Article 15-2711 of the Environmental Conservation Law as wild, scenic or recreational.”] (R.1557; Environmental
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