Berlin Pond -- the two mile, 256 acre reservoir just south of Montpelier is a natural beauty -- popular with birders, runners and dog walkers alike. But as of last week it could now become a hot spot for paddlers, bathers and fisherman also.
Restricted to public use for more than a century, the Vermont Supreme Court ruled last week that the City of Montpelier does not currently have the authority from the state to restrict public recreation at its drinking water supply.
"The onus is on the city to show serious health hazard or public health risk to the water, which thus far they failed to do," said Rick Barnett, an avid fisherman from Barre, who was among a group that used civil disobedience to prove the city was wrong. "We were kayaking out here, doing some fishing. It was bass season. We both had our limit of five bass and chief of police Facos showed up and ordered us off the water. They cited me for criminal trespass," he said.
The charges were later dropped, but the legal issue became an obsession that ended with Barnett successfully representing his case before the high court. "I'm the type of person that when I start something and I'm convinced that I'm right, I stick with it," he said.
But the court decision leaves the City of Montpelier in a sort of legal limbo. "One of the ironies here is that the City of Montpelier is liable for delivering water to its customers that is in any way impaired by the activities that occur in Berlin Pond and yet Montpelier doesn't have the authority to protect and prevent that kind of harm from occurring," said Pat Parenteau, a professor at Vermont Law School.
City officials say they're still trying to sort out they're next step forward. Parenteau says they have one of two options -- going to the state Water Resources Panel and persuading them that the pond will be harmed by recreation, something they have been unable to do in the past.
"The other option would be to go to the legislature and get a clear delegated authority to amend the charter for the City of Montpelier to directly regulate activities at Berlin Pond," Parenteau said.
The ruling also raises questions about restricted public use at other naturally occurring water reservoirs outside municipal limits -- like the ones Barre City and St. Johnsbury rely upon. Rick Barnett says he's well aware he may have opened a Pandora's Box, but he says he has faith that users of the pond will be responsible. "I believe that most people are good and most people will pick up after themselves and not injure the water source," he said.
But for right now, he's primarily thinking about fishing. "Bass season starts second Saturday in June. I will be here," he added.
A warning to would-be visitors, the High Court said Montpelier is still within its rights to enforce no trespassing on land it owns surrounding the pond.
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