A fishy fight over Berlin Pond
Toolbox
By David Delcore TIMES ARGUS STAFF - Published: March 9, 2010
BERLIN After spending the winter thumbing his nose at Montpelier's self-proclaimed ability to regulate the recreational use of Berlin Pond, a Barre man has decided to give the Capital City a good, old-fashioned thumb in the eye.
A frequent fisherman at Berlin Pond this winter, Rick Barnett said Monday he plans to host a state-sanctioned fishing derby on Montpelier's public drinking water supply later this month.
"I have a legally obtained ice fishing derby permit," Barnett said, explaining he recently filled out the requisite forms, paid the $50 fee and received a permit for the March 28 event that is now listed on the Web site for the state Department of Fish & Wildlife.
"It's legal," he said. "As far as the state is concerned (we can) have at it."
Not if Montpelier has anything to say about it.
Montpelier officials have consistently maintained they have the authority to regulate use of the pond that is named after the neighboring community in which it is located. That firmly held belief has prompted them to request a temporary restraining order that would presumably pull the plug on Barnett's plans to host the "First Annual Berlin Pond Fish Out."
The decision to request a restraining order comes even as the city's related request for a preliminary injunction involving precisely the same issue is said to be pending in Washington Superior Court.
Although court officials could not confirm the case has been filed presumably due to the fact Barnett and co-defendants Cedric and Leslie Sanborn have not been served with copies of the document the newly filed request suggests a March 30 hearing has been scheduled.
However, given Barnett's plans for a March 28 fishing derby, Glenn Howland, a lawyer representing the city, suggested an expedited ruling was needed to protect Montpelier's interests.
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This (fishing derby) will require a trespass upon lands owned and controlled by the city and will interfere with the municipal water supply," Howland wrote.
City Manager Bill Fraser said no hearing on the new motion has yet been scheduled, but the city would aggressively defend its right to restrict both access to and use of the pond.
Barnett said he has no plans to "trespass" on Montpelier's property and continues to claim the city neither owns nor controls the pond that serves as its drinking water supply.
Berlin Pond, like all navigable rivers, lakes and ponds, is considered state property under the U.S. Public Trust Doctrine, according to Barnett, who claims he has a right under the Vermont Constitution to enjoy the waters within the rules established by the Legislature.
"I'm just a private individual trying to exercise my right to use the water," he said.
Although Barnett conceded he has heard rumblings of a potential civil lawsuit, he said he has yet to see evidence of one and is skeptical that the city could prevail.
"If you don't have the legal authority to govern the body of water you can't sue anyone over the use of that body of water," he said.
Barnett, who was ticketed by Montpelier police when he was caught kayaking on the pond last summer, has yet to be prosecuted for criminal trespass. Instead, Montpelier officials have decided to make their case in superior court an attempt to affirm their right to enforce restrictions imposed by the state Board of Health that have been in place since the early 1900s. Those state Board of Health orders have twice withstood challenges to the Vermont Supreme Court once in 1911 and again in 1926.
Barnett has argued times have changed and the construction of a multi-million water filtration plant should have allayed any lingering concern about recreational use of Berlin Pond.
"There's nothing that any of us are going to put in there, fishing, kayaking or canoeing that would even remotely contaminate that water," he said.
Although it remains to be seen whether a court order will alter his plans, Barnett said ice-permitting he will be hosting a fishing derby on Sunday, March 28. Barnett is offering $100 prizes for the heaviest perch and heaviest pickerel caught by contestants, whom he hopes to charge a $10 entry fee.
Any surplus proceeds from the event will benefit the Central Vermont Special Olympics, according to Barnett, who said those interested in entering must pre-register by Saturday, March 27. He can be contacted at 802-522-8327 or by email at rbarre3@aol.com. Although Barnett is making much of the state permit, Agency of Natural Resources Secretary Jonathan Wood said Monday the routine administrative action wasn't particularly significant.
"Generally, as long as they (fishing tournament permits) are applied for on public waters, which this (Berlin Pond) is, we issue them," he said. "It (the permit) doesn't get him off the hook with the city."
Barnett doesn't seem to care.
"I've been fishing all winter long," he said.
That's 17 trips out on to the ice, according to Barnett, who has been keeping track and has hauled in his share of "really nice fish," but no more tickets from Montpelier police. Barnett said police have been monitoring the pond and, he believes, taking down information about people, like him, who have been fishing there this winter.
david.delcore@timesargus.com
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