Albany

A Glens Falls lawyer likened a magazine editor to Adolf Hitler before the state's top court Thursday.

Dennis J. Phillips made the jaw-dropping comparison to the Court of Appeals because Phil Brown, editor of the Saranac Lake-based Adirondack Explorer magazine, canoed and portaged through a two-mile stretch of private property in Hamilton County in May 2009. The property is part of a 2,000-acre section of waterways in the town of Long Lake owned by Phillips' client, Friends of Thayer Lake, which wants the high court to make the area off limits to boaters.

Phillips argued that, without a commercial purpose, the public has no right under common law to paddle through the private land.

Phillips compared Brown's decision to canoe through the property to Hitler's 1939 invasion of Poland. Both actions, he reasoned, were based on someone's desire as opposed to a need.

None of the seven judges responded to Phillips' remarks that came at the end of arguments.

John Caffry, a Glens Falls lawyer representing Brown, effectively bit his tongue when asked after the proceedings about his adversary's Hitler reference.

"I'm not going to dignify that with a response," Caffry said. "I'm not going to go there."

The property in question, the Mud Pond Waterway, is on land owned by the Brandeth family since 1851. It is bordered by land owned by the state. Brown canoed from Little Tupper Lake to Lake Lila — and used a trail on the private property to bypass 500 feet of rapids. The land owners, in turn, posted "no trespassing" signs, roped off the waterways and installed surveillance cameras.

Phillips referenced the Nazi dictator after a judge suggested there is a difference between a canoeist who "needs" to use the water for commerce and one who merely "wants" to use it. Brown and the state Department of Environmental Conservation oppose the efforts of the landowners, arguing the waterways are "navigable-in-fact," which makes them open to public use.

The mid-level Appellate Division and a state Supreme Court justice ruled in Brown's favor.

Senior Associate Judge Eugene Pigott, who appeared to be sympathetic to Phillips, inadvertently began the sequence of events that led to Phillip's remarks.

"I don't think the state can come in and say, 'We want your land because we want to do something else.' It's a need thing, it seems to me," Pigott told Phillips.

"And your honor, I think that's the morality issue in this case which is not in the (legal) briefs," Phillips replied. "To use an extreme example, I think that Hitler wanted Poland when he marched into Poland in 1939. When Phil Brown came across the line and he said, 'Boy, this (other section of water called) Lila Traverse is great, but if I can use the private land it would be even better.' But he had no economic purpose for needing the private land. ... He just wanted it and so that was just a wish that he had. And I don't think that the wishful thinking of the paddlers is enough to change the common law of the state of New York. I don't think that their wishful thinking is more important than historical property rights in the state."

When asked about his comments after court, Phillips said: "I was asked the question whether this was a 'want' or a 'need.' My answer was it was a 'want,' and I used that historical reference to accentuate the point."

Pressed about why he would use Nazi Germany as an example, Phillips continued to make his argument.

"Hitler had no common law standard for marching into Poland. He wanted it," Phillips said. "As far as the position of the plaintiffs is concerned, Phil Brown had no common law standard for using the private land. ... When somebody wants something that somebody else has, we have, going back to the origins of law with the Ten Commandments, Thou shalt not covet thy neighbor's things. That's basically how we view the trespass of Phil Brown."

Phillips added: "I'm not comparing him to any historical figure. I just use that as an example to show what the difference is between what a 'need' and a 'want' was."

Caffry told the court that a prior Court of Appeals decision backs his argument that there is no commercial need for the area to be accessible to the public.

Assistant Solicitor General Brian Ginsburg, representing the state, said even if commercial use was needed, tourism should be a factor in showing that recreational use meets the standard.

"The only unfairness in this case would be to undermine the long-settled expectations of members of the public — both those who enjoy wilderness recreation and those whose communities depend on the economic benefits that tourism in the park provides," Ginsberg stated in a brief to the court.

rgavin@timesunion.com • 518-434-2403 • @RobertGavinTU