A portion of the Hurricane Road as it passes through the Bill Sladyk Wildlife Management Area. Photos by Paul Lefebvre
NORTON POND — A right of way issue that appeared to be resolved by a 2006 Supreme Court decision is turning into a protracted legal battle between the state and a homeowner here over what road he should be permitted to take home.
For the homeowner, the latest turn in the road battle across state land appears to be wearing thin.
“Everyone has the right to use the Hurricane Road except for me,” says David Berge, who maintains a year-round residence on the west side of the pond.
“I’m the only person they’re trying to stop from getting home,” he says, noting that hikers, bird watchers and sportsmen can come and go as they please.
Where they come and go to recreate is a large, and remote stretch of wilderness — 10,000 plus acres — known as the Bill Sladyk Wildlife Management Area. Off Route 114 about eight miles north of Island Pond, the area “ranges from Norton Pond northwest to the Canadian Border just north of Holland Pond,” according to a description from the Department of Fish and Wildlife, the state department that manages the property.
The state acquired the land, initially 7,001 acres, in 1959 from Florence Davis. At the time of the sale, she reserved roughly 38 acres on the west
The Bill Sladyk Wildlife Management Area is over 10,000 acres and is located eight miles north of Island Pond.
side of the pond, an area that came to be known as the Norton Pond Exclusion. The land changed hands again by the time Mr. Berge purchased two lots in 1997.
He accessed his property using the Hurricane Road, and for awhile, everything went along without any hassle. Then the state gated the road, denying him access across the WMA on grounds he could reach his property by water. A suit was filed, and a judge in Washington County Superior Court ruled in favor of the state, saying that because Mr. Berge had access to his property over water — Norton Pond — he could not claim he was entitled by necessity to have a right-of-access over the Sladyk WMA.
Mr. Berge appealed and the state Supreme Court heard the case during its March term in 2006. In what was regarded as a landmark decision — the high court ruled that when it comes to a right of way, water is no substitute for land. Writing for the majority, Justice John Dooley said that a right of way by water only is no right of way at all.
“We depend on roads and automobiles for transporting not only our family and friends, but all our basic necessities to and from our homes, and it is a quaint but ultimately pointless fiction to pretend that water — much less ice — represents a sufficient substitute.”
Justice Dooley went on to write that in today’s world people “think in terms of driving rather than rowing to work, home, or market.”
The decision was not unanimous. In a dissenting opinion, Chief Justice C. J. Reiber said the majority decision flew in the face of “our traditional adherence to necessity.”
After noting the remote location of the property, the chief justice argued that “water access may be very nearly as practical as the best reasonably available access by land.
“As plaintiff himself concedes,” Justice Reiber continued, “even his access via the claimed easement is highly weather-dependent and is not generally possible between late November and the time the Access Road becomes passable in the spring.”
But on the strength of the majority conclusion that “access to navigable water is generally not legally sufficient, standing alone, to defeat a finding of necessity,” the Supreme Court sent the case back to the lower court, where it has taken another tortuous turn.
On its web page, the Department of Fish and Wildlife says that the Sladyk WMA can be accessed either from the southeast on the Hurricane Brook Road or from the west on the Holland Pond Road. It’s an assertion that makes Mr. Berge’s blood boil.
When it comes to a passable right of way, he says, the Holland Pond Road is no option at all. The road has grown over so thickly, he adds, that not even a bicycle rider can get through.
The state begs to differ.
“We think Mr. Berge walked a route that we are not proposing,” says Jacob Humbert, the lawyer with the attorney general’s office who argued the department’s case before the Supreme Court.
The route of choice for Mr. Berge is the Hurricane Brook Road. It’s the road he was using before the gate went up, and it’s the road most frequently taken by people who drive into the Sladyk WMA.
“This is how the general public, of which the Plaintiff is a part, gets to and from the WMA,” writes Robert Gensburg, the St. Johnsbury attorney who represents Mr. Berge. “That is why the State acquired the right of way over Hurricane Road — so that the public could get to the WMA.”
A screened-in outhouse is the only amenity in an area reserved for primitive camping inside the Sladyk WMA.
The state’s signs along the road amplify the department’s intent in managing the WMA. “Camping allowed in designated areas only,’’ says one; another says camping is only allowed during hunting season. Clusters of black-eyed susans crowd either shoulder of the road, and every once in awhile a motorist can spot large, logging-size culverts that have been pulled and left unattended in an area honeycombed with roads, some barely passable.
A notice on an enclosed bulletin board proudly proclaims: “This Wildlife Management Area has been purchased with the goal of conserving wildlife and their habitat.” At the designated camping areas, there are outhouses wrapped in plastic coated wire to prevent bears and raccoons from clawing or chewing their way inside. A single fire pit circled with rocks suggests that few but the serious are inclined to camp here.
It may be that the state is relying on the high wilderness profile of the area to convince the court that the Hurricane Road should not exist as a private driveway for someone’s residence. From the beginning, the state and Mr. Berge have been at opposite, head-butting ends.
In an affidavit, dated in April, Mr. Berge says he has been using the Hurricane Road to access his property for 13 years. At some point, when the gate went up, he says he followed the instructions on the attached sign and applied for a key. The state, he recalls, said nothing doing.
Fish and Wildlife administrator Tom Decker provides a different account in an affidavit he submitted to the court in May. Mr. Decker, who wears the title, chief of operations for the department, says the gate was installed in 2000 after someone had dumped trash and stolen gravel from a gravel pit, along with disturbing a barrier that prevents beaver from plugging a culvert. Parties using the road were given 30 days to contact the department, and nothing more was done.
“The gate has been unlocked since that time and remains unlocked today,” he writes in his affidavit.
While the gate may no longer be an issue, the state’s resistance to Mr. Berge’s use of the Hurricane Road as a year-round access to his home has stiffened. At the core of its objection is an assertion that the road passes over property that is owned by a third party, and that is encumbered with a conservation easement that says the property cannot be used for non-forest purposes.
The third property owner goes by the name of Heartwood Forest Fund IV Limited Partnership. It acquired the property from the John Hancock Mutual Life Insurance Company, and that may be the only point where Mr. Berge and the state can find agreement. In the filings before the court, both sides have argued whether drafting errors occurred as the property went through changes of ownership from 1918 to the present, and whether a conservation easement has any bearing on the issue.
Mr. Humbert, the assistant attorney general who is arguing the case for the department, says that an easement from the Brown Paper Company in 1972 prevents any use of the road beyond recreational purposes in the WMA.
“Like the general public, Mr. Berge can continue to use the Hurricane Road to access the WMA for recreational purposes,” writes Mr. Humbert.
“But it does not follow that he can also be granted a private right of way along that route for year-round residential access to his property beyond the WMA.”
That logic has proven nettlesome to Mr. Berge and his attorney, who note that the third party, Heartwood, has agreed to grant the homeowner access over the road as long, that is, as the state agrees.
“There is no apparent reason, other than the State’s unreasonable (not to say obdurate) refusal to agree to a right of way from Heartwood, why the Plaintiff should not be able to drive his to home across the Hurricane Road if all the rest of the world can,” writes his attorney.
Perhaps because the issue is a legal one, there is no mention made of how much either access would cost, if either would be open to year-round travel. Each party says the other should bear the costs. Mr. Gensburg argues that the state’s proposed route, beginning at the western end of the WMA, would be a “redeveloped six-mile long road” that, he adds, would be “contrary to public policy.”
And he goes on to accuse the state of “using its monopolistic position to defeat the Plaintiff by locating the way of necessity on a route that can never provide practical access,” and would amount to a “disproportionately large amount of money” for his client.
“The state should not be allowed to do that,” writes Mr. Gensburg in his closing argument to the court.
In the state’s eyes, those arguments hold no weight when measured against protecting the land as a wildlife management unit.
“Heartwood’s grant of a right of way to Mr. Berge would constitute an exercise of development rights and a conversion to non-forest uses that extend beyond the allowable public access for dispersed recreational activities,” writes Mr. Humbert.
There is a fear, from the state’s point of view, that giving Mr. Berge access to his home over the Hurricane Road would upset the applecart of a conservation easement, and feasibly cost the state money to legally recover the damages.
An affidavit from Michael Fraysier, who is the head land administrator for the Department of Forests, Parks, and Recreation, says that allowing Mr. Berge to use the Hurricane Road to access his property would require amending an easement on roughly 31,000 acres that includes five towns and gores in northern Essex County.
“This is not a simple, straightforward action and is not something to be taken lightly,” say Mr. Fraysier, who warns that amending an easement would be costly, and might pave the way for other property owners following in Mr. Berge’s footsteps.
“The costs could be increased,” he writes if 15 other seasonal camp owners along the road, “want to increase their limited use to include year-round residential use.”
The state argues that it “has proceeded in good faith,” to explore other options with Mr. Berge. Options that the homeowner charges are useless.
“The proposed route will be unusable by vehicles throughout the spring, fall, and winter,” he says in his affidavit, characterizing the route as “an old, long-unused logging road.”
It’s a protest that falls on unsympathetic ears.
“The State should not be punished for the area’s existing geography between Mr. Berge’s property and the Holland town highway system,” notes Mr. Humbert.
A ruling on the dispute could come down as early as this month. Last week, according to Mr. Humbert, the court paid a site visit to the area.
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