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Thread: WODC Outlook, May 2009

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    Senior Member RickB.'s Avatar
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    WODC Outlook, May 2009

    There are some strong allegations made in the latest WODC Newsletter regarding Trail Bandit's Ossipee Map and its depiction of trails on private property. I have a copy of the map and have appreciated it greatly in my roaming of the Ossipees but I think the issue and facts are worth discussing.
    At a minimum, we should identify any trails that have landowner concerns and stay off them as a community.

    Edit to add scan of document:
    Last edited by RickB.; 05-22-2009 at 04:57 AM.

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    Senior Member psmart's Avatar
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    For those who haven't seen the latest WODC Newsletter, the concern is about encouraging public use of trails on private property without the permission of the landowner.

    Unlike the nearby WMNF, the Ossipee Mountains are private property. Have the landowners granted permission for the public to maintain or use these trails?

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    Senior Member Tobit's Avatar
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    Those are some pretty strong allegations. I find it very hard to believe that Trail Bandit would use herbicide on a trail.
    "The man who goes alone can start today; but he who travels with another must wait till that other is ready." - Thoreau

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    Senior Member Trail Bandit's Avatar
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    About the map: I think that anybody that looks at the Ossipee Mountain Map that I have put together, will find that I have shown "What is out there". I have only shown as trails, tracks that are blazed, maintained, and regularly used as hiking trails. The only "trail" that is shown that there have been any concerns about, that I am aware of, is the Larcom Mountain trail. I have heard that a no trespassing sign has been put up at the beginning of the trail on Mountain Road. Before putting the trail on the map I wrote a letter (certified) to the owner of record, asking what their wishes were as to hikers using their land. They did not respond. At that time, the only signs were "No hunting with bear dogs". The map has been available on VFTT for about a year and I asked for comments, corrections, and corrections. A number of you made helpful suggestions that I incorporated into the map. Two landowners contacted me and requested (demanded) that I remove trails shown on their land. I removed both trails. One of the landowners, who seems to be accustomed to "Being in charge", and having people respond with a "how high" to the jump command, demanded that I remove any features of any kind on her land, from the map. She has been expending a lot of time and energy trying to stir up any landowner who will listen. I feel that if there is a major logging road, skidder road, or well used snowmobile trail on the land, it can be shown as such on a map. Look at the uSGS, Delorme, etc maps and you will see such features. The USGS does not get permission from land owners before making a map. A map that shows no features on private land wouldn't have much on it. Check out the map and make your own conclusions. Mr. Conrad, of the WODC, should really check his facts before printing a rant to fill in a blank space in his news letter.

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    Senior Member RickB.'s Avatar
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    Thanks, TB.
    Better to have this out there than for all of us to fear we are trespassing every time we check out something new in the Ossipees.

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    While I dont condone anyone cutting or maintaining an unauthorized trail on private property, I regard access to that property somewhat less clear due to the following

    The current use designation that many large landowners utilize in NH gives a property tax discount to owners that leave their land open for public use. There are instances where the owner takes the discount but "forgets" the public access provision. There is no central registry of this information so it would need to be a town by town search to determine that status. The property tax records would be public record, although gaining access to them is sometimes difficult. This does not imply that if they take the discount, that someone can build a trail on their land, the owner just cant post it no tresspassing. The discount is on a year by year basis so anyone trying to use this to justify long term access could be disapointed if the landowner elects to lose the discount.

    Loss of recreational liability immunity, if the owner posts the land, they lose some if not all the immunity to being sued if a member of the public gets injured on the property. This can introduce an additional cost to a large landowner as they would be prudent to obtain appropriate liability insurance not required if the land wasnt posted. This doesnt give the public any rights, but it is motivation for a landowner not to post. Many recent large landowners are not aware of this statute, and it can sometimes be used to an advantage in convincing them to keep their land open.

    Of somewhat more concern to the landowner is "squatter rights" (AKA prescriptive rights or right of adverse possession). Bascially if an individual or the public in general can prove that they have "openly and notoriusly" used a piece of private land for an extended period of time ( many years), without the landowner objecting, then the individual or public may have gained the right to continue this use. The establishment and maintenance of an organized (or non organized) trail and the documentation of it, is definitely something that would end up supporting this right and therein may be the issue with a landowner, of course it could go the other way as the map deliniates private property so anyone using it is acknowledging that they are on private property. Essentially the squatters rights "clock stops ticking" whenever the landowner can establish that they have acted to restablish their property rights. Reputedly Rockefeller Plaza in NYC is closed for one day per year to the public to reestablish that it is private property. Squatter rights have been considered the "nuclear option" by outdoor organizations and large government entities as if they elected to go to court to establish public rights on a trail over private property (I.E. the Mt Cabot trail), numerous other trails and accomodations on private land may close overnight and create far more ill will than would be gained by opening that one trail. I would strongly urge anyone considering this approach in the Ossipees to consider the harm that would most likely occur.


    One major confusion out there is that just because a piece of land is covered by a conservation easement, does not neccesarilly give the public right to access it. It is entirely up to the agreement that was signed by the owners when the easement was created. Quite frequently the easement is strictly for development rights which prevents the owner from subdividing the property in the future, the owner is free to post the land just as they were previously. There is a large block of land with hiking trails in Northern VT which is covered by a development easement (west of Hazens notch?), where the hiking trails are at the "pleasure of the landowner". The owners can and do shut down the trails on occasion and have a caretaker to keep an eye on the property to enforce these closures. I am aware of a case in the local area where an illegal snowmachine trail was built across a conservation easement on a landowners property without their knowledge or consent and the agency who manages the easement went after the landowner to stop the use and mitigate the damage. It did not proceed past a discussion stage, but nevertheless got the landowner cranked up.

    Maine has some colonial statutes regarding free right of access for "fishing and fowling" to great ponds and waterways that have been interpreted for public access, but I do not beleive that NH has those protections.

    Do note , I am not a lawyer and dont pretend to be, if you are thinking of using this guidance to do anything, see a lawyer or do your own research.
    Last edited by peakbagger; 05-22-2009 at 07:49 AM.

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    Senior Member Amicus's Avatar
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    Quote Originally Posted by peakbagger View Post
    Maine has some colonial statutes regarding free right of access for "fishing and fowling" to great ponds and waterways that have been interpreted for public access, but I do not believe that NH has those protections.
    I have a NH Fish and Game Dept. brochure squirelled away somewhere that addresses this, stating that hikers (or hunters, anglers etc.) can legally walk over any land that is not posted. Whether that derives from a statute or common law, I could not say. Does that Maine statute trump even posting, for land that leads to such "ponds and waterways"?

    You make a number of good points. There is a fine line to be walked between preserving our rights against landowners who would overreach and antagonizing them into posting their properties. In my own experience, Trail Bandit has been conscientious in his attempts not to cross that line.

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    Senior Member skiguy's Avatar
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    Quote Originally Posted by peakbagger View Post

    The current use designation that many large landowners utilize in NH gives a property tax discount to owners that leave their land open for public use. There are instances where the owner takes the discount but "forgets" the public access provision. There is no central registry of this information so it would need to be a town by town search to determine that status. The property tax records would be public record, although gaining access to them is sometimes difficult. This does not imply that if they take the discount, that someone can build a trail on their land, the owner just cant post it no tresspassing. The discount is on a year by year basis so anyone trying to use this to justify long term access could be disapointed if the landowner elects to lose the discount.
    I will do some more research here but I do know there are different levels of Current Use which imply different contingences.
    "I'm getting up and going to work everyday and I am stoked. That does not suck!"__Shane McConkey

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    Senior Member RoySwkr's Avatar
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    Quote Originally Posted by Amicus View Post
    I have a NH Fish and Game Dept. brochure squirelled away somewhere that addresses this, stating that hikers (or hunters, anglers etc.) can legally walk over any land that is not posted. Whether that derives from a statute or common law, I could not say. Does that Maine statute trump even posting, for land that leads to such "ponds and waterways"?
    Yes, in some cases. Most famous is the right to travel along private ocean beaches if you have fishing gear which was litigated a few years back.

    In NH, the state owns natural "great ponds" of over 10 acres but only the water thereon and some may not be reachable by public access.

    I would say that while I agree with some of the opinions of the WODC author, there seem to be serious problems with his facts and a retraction should be published.

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    Senior Member Tobit's Avatar
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    Quote Originally Posted by RoySwkr View Post
    I would say that while I agree with some of the opinions of the WODC author, there seem to be serious problems with his facts and a retraction should be published.
    Exactly. He makes a lot of accusations that go far beyond the scope of a normal opinion column.
    "The man who goes alone can start today; but he who travels with another must wait till that other is ready." - Thoreau

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    NH current use discount is 20% and what happens it someone posts who is receiving this discount

    See http://www.nhspace.org/faq.shtml#6 for a FAQ on current use


    "What is the Recreational Discount?
    The Recreational Discount is an incentive for landowners to keep their land open to others for six low-impact land uses; skiing, snowshoeing, fishing, hunting hiking and nature observation. In exchange for agreeing to allow all six of these activities, the current use assessment is reduced by 20%. No other recreational activities must be allowed, and the landowner may post against any other uses. Participation in the Recreational Discount is optional. (RSA 79-A:4,II) "


    Of course, those who are inclined to be vengeful may use the option in paragraph 2 but I think it may still be the start of the "nuclear effect".

    "What if I receive the Recreational Discount AND post my land?
    There is a provision that allows a landowner who is receiving the Recreational Discount to post with the permission of the local assessing officials. An example of this would be when a farmer wants to post a field he is pasturing cows in during hunting season. Town officials usually grant this type of reasonable request
    .

    However, if someone posts their land while receiving the Recreational Discount without the permission of local assessing officials, the 20% reduction will be removed the following tax year, and the property will not be eligible to receive the discount for the subsequent 3-year period, and a penalty is incurred. "
    Last edited by peakbagger; 05-22-2009 at 10:07 AM.

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    Moderator David Metsky's Avatar
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    I've had some concerns about the Trail Bandit map since the start. The legalities are being discussed already but there's always the problem when a trail map is published that includes private land. There can be repercussions and unintended consequences unless you proceed with care and diligence. Landowners, in my experience, are quick to anger and slow to forgive when they perceive that someone is taking advantage of them. Regardless of the legalities, any publishing project requires active PR and working with the folks on the ground.

    As I read the article, he wasn't accusing Trail Bandit of using herbicide or illegal cutting, just that it has been reported. Who knows if the reports are accurate or if others are using the map as a basis for opening more trails? The problem is that other landowners are perceiving this as a problem and may decide to take their own actions.

    When I was working with the ATC routing the AT near Dartmouth we found the land owners to be a tricky bunch to work with. Anything that is perceived to reduce the value of their land or to restrict their right to do what they wanted was met with strong resistance. And owner A certainly kept aware of what was going on with owner B.

    If a land owner has posted his/her land for no hiking, what is the purpose of showing an old road though the land? If the property lines are clearly marked on the map and shown as no tresspassing that's one thing, but what if it's not clear to a map user that certain areas are off limits? The Whites doesn't have much of that but I know the Daks does; how is it handled on their maps?

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    Senior Member skiguy's Avatar
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    Quote Originally Posted by peakbagger View Post
    NH current use discount is 20% and what happens it someone posts who is receiving this discount

    See http://www.nhspace.org/faq.shtml#6 for a FAQ on current use


    "What is the Recreational Discount?
    The Recreational Discount is an incentive for landowners to keep their land open to others for six low-impact land uses; skiing, snowshoeing, fishing, hunting hiking and nature observation. In exchange for agreeing to allow all six of these activities, the current use assessment is reduced by 20%. No other recreational activities must be allowed, and the landowner may post against any other uses. Participation in the Recreational Discount is optional. (RSA 79-A:4,II) "


    Of course, those who are inclined to be vengeful may use the option in paragraph 2 but I think it may still be the start of the "nuclear effect".

    "What if I receive the Recreational Discount AND post my land?
    There is a provision that allows a landowner who is receiving the Recreational Discount to post with the permission of the local assessing officials. An example of this would be when a farmer wants to post a field he is pasturing cows in during hunting season. Town officials usually grant this type of reasonable request
    .

    However, if someone posts their land while receiving the Recreational Discount without the permission of local assessing officials, the 20% reduction will be removed the following tax year, and the property will not be eligible to receive the discount for the subsequent 3-year period, and a penalty is incurred. "
    Good Info...Is it not still possible to be in Current Use and not be receiving the additional recreation discount and therefore be able to post your land without penalty other than being put into a different(Higher) Current Use tax bracket?
    "I'm getting up and going to work everyday and I am stoked. That does not suck!"__Shane McConkey

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    Senior Member Tobit's Avatar
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    Quote Originally Posted by David Metsky View Post
    If a land owner has posted his/her land for no hiking, what is the purpose of showing an old road though the land?
    Historical perspective? I, for one, collect maps for more than their use today be it on foot or by car. Trail Bandit has made it perfectly clear on his maps that much of the Ossipees is on private land and landowners rights must be respected. This should be enough of a disclaimer. When asked by landowners, as stated above, he has removed trails from his map that exist on their respective properties. It is up to those who hike the woods to respect the land they walk on. Even if there was no official-unofficial map, there'd still be people hiking through the Ossipees.

    What's next? Landowners suing google for making satellite images available on their maps? This is already taking place in other countries.
    "The man who goes alone can start today; but he who travels with another must wait till that other is ready." - Thoreau

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    Senior Member psmart's Avatar
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    Quote Originally Posted by skiguy View Post
    Is it not still possible to be in Current Use and not be receiving the additional recreation discount and therefore be able to post your land without penalty other than being put into a different(Higher) Current Use tax bracket?
    Correct. The land owner has the option of taking the discount or not.

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