Barre man rocks the boat on Montpelier's reservoir restrictions
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Rick Barnett of Barre kayaks past a no trespassing sign on Berlin Pond in Berlin on Thursday afternoon. Barnett is challenging Montpelier's right to keep the pond waters off limits to recreation. PHOTO BY JEB WALLACE-BRODEUR |
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By David Delcore Staff Writer - Published: November 22, 2009
BERLIN – For a guy who paddles around in a kayak, Rick Barnett sure knows how to make waves.
Barnett, 40, of Barre quietly stirred up controversy earlier this summer when he waded into Berlin Pond, launched his kayak and went fishing. On one such summer excursion — there were six in all — a smiling Barnett says he hauled in "six monster bass." On another, he netted a ticket for criminal trespass.
Seems Montpelier officials zealously guard their community's public drinking water supply and cling to the notion they have the power to restrict its use.
Perhaps they do.
But, Barnett – the latest in a long line of scofflaws that spans a full century – isn't buying it.
"I don't think they can do it," says the avid outdoorsman, whose case has yet to see the inside of a courtroom.
That doesn't mean it won't, according to Deputy States Attorney Aaron Toscano, who says the matter is still "under investigation."
"It's by no means decided," Toscano says, admitting that pressing the criminal trespass charge is unlikely because the signs Montpelier posted around the pond many decades ago referenced a law that was repealed in 1989.
"Because the signs in question cited a statute that had been changed we felt that there wasn't reasonable notice," Toscano explains when asked why Barnett's Aug. 20 court date was abruptly canceled.
However, Barnett insists the "No Trespassing" signs, which were recently replaced with more up-to-date versions, are irrelevant because Montpelier doesn't own the pond and he didn't cross the city's property to get to it.
Berlin Pond, like all navigable rivers, lakes and ponds, is considered state property under the U.S. Public Trust Doctrine, according to Barnett, who notes that while Montpelier bought up most of the land around the pond in the early 1900s, the Town of Berlin owns a half-acre parcel that runs from Berlin Pond Road to the water's edge.
In an interesting twist to his still-simmering dispute with Montpelier, Barnett appeared before Berlin's selectboard last week requesting permission to create an informal access to the pond.
"What I'm asking for is a simple path from the side of the road to the edge of the water for people to launch boats and do a little shore fishing," he said.
Though the selectboard was intrigued by the idea, members agreed it would be best to float it by the town's attorney before responding to the unusual request.
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Those tempted to dismiss Barnett as a wing-nut would be sadly mistaken.
Say what you will about his brash tactics, but when it comes to Berlin Pond the man has done his homework.
Armed with an inch-thick binder filled with documents related to what has charitably been described as "the Montpelierization of Berlin Pond," Barnett has developed an encyclopedic knowledge of relevant court cases and legislation.
Barnett says his research started last spring with calls to communities — Barre and Montpelier included — that believe they have the power to restrict recreational use of their drinking water supplies.
Listening to Barnett tell the tale, it was a fishing expedition designed to pin municipal officials down on precisely where they believe they derive the authority he is convinced they don't have.
"All waters of the state are state-owned and state-regulated," he says, asserting that he has a right under the Vermont Constitution to enjoy them within the rules established by the Legislature.
When it comes to Berlin Pond those rules do not restrict kayaking or fishing, Barnett says.
He's right.
State-imposed restrictions for the pond, and other similar-sized bodies of water, prohibit jet skis and internal combustion motors. They also establish a 5 mile-per-hour speed limit for boats with suitable motors and prohibit planes from landing on the pond between Dec. 1 and April 31.
"That's it," says Barnett. "Those are the rules."
Yes, and no, according to John Hasen, general counsel for the state Natural Resources Board.
"We have specific rules that do apply," he says, suggesting Barnett fairly characterized them.
However, Hasen says those rules don't necessarily preclude local boards of health from setting stricter standards. He likened it to a community setting a reduced speed limit on a state route that would otherwise be posted for 50 miles an hour.
"There is the potential to be more restrictive," he says.
Not according to Barnett. At least not without persuading the Legislature, or the state Water Resources Panel, to sanction the additional restrictions.
"Where do they (Montpelier officials) get that authority?" Barnett asks.
"That's an excellent question," admits Hasen.
If there is a clean answer, Montpelier City Attorney Paul Giuliani isn't sharing it.
Given what he characterized as a "pending complaint in district court," against Barnett, Giuliani said it would be "inappropriate" for him to discuss the case in detail.
"It is what it is," he says, acknowledging a telephone conversation he had with Barnett months before the Barre man was ticketed for trespass on July 30.
According to Giuliani, he informed Barnett of a pair of Vermont Supreme Court cases involving restrictions imposed by the state Board of Health at Montpelier's request. Unlike Barnett, Giuliani says he believes those orders — including one that is more than a century old — are still in effect.
Though Giuliani insists those orders aren't the only basis for Montpelier's belief it can regulate the use of its drinking water supply, he declined to elaborate.
"The city is taking what it deems to be appropriate action to protect its interest in the pond," he says. "We have an obligation to protect its purity."
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That was the thinking back in 1903 when the state Board of Health enacted a series of regulations involving Berlin Pond, including one that banned swimming and bathing.
Six years later, a man named K. W. Morse was arrested while swimming in the pond.
According to the Berlin Historical Society, Morse was quickly convicted, "fined $10 and costs amounting to $21.49 and ordered to spend 93 days in the county jail."
Morse, who claimed he was unaware of the restriction, appealed his conviction to the Vermont Supreme Court.
He lost.
In something of a regulatory coup, the high court upheld the police powers of the state agency.
"We are not satisfied and cannot say that the regulation prohibiting bathing in Berlin Pond was a palpable violation of the respondent's rights, nor can we, from the record aided by the facts of which we may take judicial notice, say that such prohibition was unnecessary or unreasonable," the court wrote in its 1911 decision. "On the contrary we take notice of the germ theory of disease, and that the human body may give off germs dangerous to the public health; and that should these reach the intake of the water supply, they might, as suggested by the State Board, spread contagion throughout the city."
In 1926, the state Board of Health added fishing and boating to the list of prohibited acts on Berlin Pond. Joseph Quattropani was arrested while fishing on the pond that same year, resulting in a second unsuccessful appeal to the Vermont Supreme Court.
"While the danger of contamination is not quite so plain as it was in the Morse case, we are satisfied of its presence, and that boating on this pond, however harmless it of itself may be, would give rise to a reasonable apprehension that such use might involve mingling with the water foreign matter that would tend to render it unfit for drinking purposes," the court wrote. "It is not irrational for a public board to deem it likely or possible that sources of contamination and germs of disease might have a causal connection with the presence of fishermen on the ice or waters of a supply of drinking water."
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Times have changed, according to Barnett, who concedes that restrictions on the recreational use of Berlin Pond may once have been necessary and legally enforceable.
"Today things are different," he says, suggesting relevant statutes evolved with the passage of the federal Safe Drinking Water Act and the construction of state-of-the-art filtration plants, like Montpelier's multi-million-dollar facility.
"There's nothing you're going to dump into the water that they can't take out of the water," he says of a filtration plant he believes undercuts every argument that ever existed for keeping people off the pond.
"They (Montpelier officials) cannot demonstrate how kayaking and canoeing is going to contaminate that water supply," he says.
Hasen, who lives in Shelburne and drinks filtered tap water pumped from boat-friendly Lake Champlain, says there's something to Barnett's claims. However, while he admits it is probably more than debatable that Montpelier could safely ease many of the restrictions it has enforced for decades, he says that is ultimately the community's call.
When it comes to those restrictions there are really two issues, according to Hasen: are they enforceable and are they necessary?
"Those are two very different questions," he says, noting that if Barnett is right on the former Montpelier could ask the Water Resources Panel, or even the Legislature, to consider the latter.
Hasen says the panel would almost certainly entertain such a request, but predicted the hearing room would be packed with "tons of kayakers and fishermen" eager to gain access to a pond that has been off-limits for more than a century.
If that scenario were to play out, Hasen says the onus would be on Montpelier to prove the restrictions are still necessary — a potentially tall order given the current state of technology.
"You'd have to be able to make a pretty good argument that someone shouldn't even be able to swim in that pond," he says suggesting moose, beaver and deer do it all the time.
Meanwhile, Hasen says he is skeptical that the trespass charge would ever stick given recent case law involving access to public waters.
"The only question is once you hit the water does Montpelier have the authority to tell you you can't paddle your kayak on it?" he says. "That's really what it boils down to and I don't have the answer to that question."
Barnett thinks he does. He insists the new signs that were posted around the pond after he was ticketed represent the perpetuation of a Vermont-style "urban legend" designed to frighten folks away from the water with the threat of a fine of up to $25,000, six months imprisonment, or both.
"It's not illegal," he says. "People are afraid to mess with Berlin Pond because Montpelier has instilled that fear over time."
Barnett isn't blinking.
Last week he returned to the scene of his "crime" for one last paddle on a pond that hasn't been seriously fished in a 100 years.
"There's some awesome bass in there," he says. "I fully plan on doing some ice-fishing there this winter."
Unless he's in jail.
david.delcore@timesargus.com
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