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Thread: Another Local Area Abused

  1. #16
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    The debate over revealing favorite places has been going on before the world wide web and was frequent flame war catalyst on rec.backcountry. The only thing has changed is the technology used to convey the information. I personally only have one "secret" spot that I am sworn to secrecy and even that one has been featured in a Steve Smith Blog (minus directions). Given its location if it was publicized it would be rapidly overrun so I respect the wishes of those who showed it to me. I did try to defend the Firewardens trail up Hale for several years long ago but when I learned that GPS tracks were readily available I give up any pretense.

    Red Rock Pond via the railroad siding was a "secret spot" for many years until Dan Doan published detailed instructions. Strava traces also let several spots out of the proverbial bag for those who cared to look.

    IMHO the biggest damage is done by the publishing and sharing GPS tracks. Unlike general directions or coordinates to a point, sharing GPS tracks rapidly burns a herd path into the soil. Many have commented about the herd path to Redington in Maine from South Crocker, Pre GPS, the entire ridge was a maze of minor herd paths and some went through some less than desirable terrain, the use got spread out. When I had the chance to revisit 3 years ago the herd path was hardened from use and there were signs of rudimentary trail maintenance. I speculate its related to a track being shared.

  2. #17
    Senior Member maineguy's Avatar
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    Quote Originally Posted by peakbagger View Post
    IMHO the biggest damage is done by the publishing and sharing GPS tracks. Unlike general directions or coordinates to a point, sharing GPS tracks rapidly burns a herd path into the soil. Many have commented about the herd path to Redington in Maine from South Crocker, Pre GPS, the entire ridge was a maze of minor herd paths and some went through some less than desirable terrain, the use got spread out. When I had the chance to revisit 3 years ago the herd path was hardened from use and there were signs of rudimentary trail maintenance. I speculate its related to a track being shared.
    But, isn't it better to have one track to follow rather than multiple ones trampling thru all the vegetation? In the Adirondacks, the multiple herd paths on many of the so called trail less peaks were brushed out leaving only one reasonably clear, although unmarked, trail to follow. Street, Nye and Tabletop come to mind offhand. Concerning Redington, since that is a 4K peak, might as well have one clear path. When I did it, I used the logging road maze and then the short herd path to the summit. I wanted no part of that Crocker-Redington path.

  3. #18
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    Quote Originally Posted by maineguy View Post
    But, isn't it better to have one track to follow rather than multiple ones trampling thru all the vegetation? In the Adirondacks, the multiple herd paths on many of the so called trail less peaks were brushed out leaving only one reasonably clear, although unmarked, trail to follow. Street, Nye and Tabletop come to mind offhand. Concerning Redington, since that is a 4K peak, might as well have one clear path. When I did it, I used the logging road maze and then the short herd path to the summit. I wanted no part of that Crocker-Redington path.
    I would agree about 1 path. Just look at what happened on Owls Head when they updated the summit. It's been a few years but that walk from the old summit to the new one was one of the ugliest stretches of woods I have been in. I blame AllTrails for most of the recent bullshit in the woods. The crowdsourced info posted there is often incomplete, misleading, or flat out wrong and I'm surprised more people don't find themselves in a situation.

  4. #19
    Senior Member Barkingcat's Avatar
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    Quote Originally Posted by ChrisB View Post
    [Trail Bandit's] deal was that private landowners put land into conservation easements for tax benefits agreeing to allowing public access . Soon after they closed off access to keep it private (having their cake and eating it too). He claimed this was illegal and produced maps to encourage use.
    I agree that if a landowner receives a benefit that assumes public access, then that access should be allowed. I know of plenty of stories about land in current use with the recreational discount being posted as closed to hiking, etc.

    But, there are trails near me that run across private land with no such recreational access granted through current use, and there's been some concern that if these trails get abused, the landowners may shut down access. And, as I mentioned in a previous post, one of these has been around since the 1940s and recently got some promotion on FB as a great place to do a multi-day hike and camp (illegally).

    I would certainly hate to see the land posted against any use except with landowner permission, but it could come to that.

  5. #20
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    To complicate things there are the concepts of adverse possession/squatters rights, prescriptive easements. Every state deals with them differently but the concept is if a private individual or individuals can prove that that they have used another persons land openly for some use for a legally defined minimum duration that they have the legal right to continue to do so even if the owner objects. In some states this concept has applied to individuals as a group, and something like a trail can gain legal status. In other jurisdictions it only applies to a specific individual. There have been several legal cases over beach access in Maine that have gone to court for years. The short term easements asked for by snowmobile and I believe ATV trails in NH specifically state granting of short term access rights do not convey long term rights if the owner elects to cancel the agreement at its end. Its been awhile since I have seen the NH agreement but I believe the state even committed to defending the owner right to close the trail to prevent an attempt at proving that prescriptive rights exist.

    Of course that is in the private sphere, local communities, states and the fed along with private entities that have been delegated government rights can just fill out a form or maybe appear before court and seize rights or actual ownership or any private property. This is usually referred to as eminent domain. One of the complexities of Northern Pass was the state passed a law that the project could not use eminent domain as it was configured as private project rather than a public benefit project. This caused the "game of checkers" up north where the utility guessed badly that they didnt have to worry about getting a voluntary easement by writing big checks. This left Eversource with a lot of very overvalued parcels of land in the North Country that are effectively worth far less than what they paid for them (in some cases less that 10%)although no doubt there will be attempts to transfer them in some way to gain some benefit. My guess is a donation to Silvio Conte NWR once the furor over NP has several years to subside.The Ride the Wilds ATV groups former leader was negotiating behind the scenes to be the beneficiary of these lands for their support of the project. I will note the Clean Power Connect powerline project in Maine learned that lesson from NP and had prebought right of ways where possible in advance of applying for the project. Even with the due diligence they have had to commit to buy very expensive "work arounds" where their corridor runs through sensitive environmental areas.

    The rules vary by state but generally the government entity has to prove a public benefit and the necessity to seize the land. Generally its up to the private land owner to go to court to object to the declaration. Usually it comes down to that if the government entity prove public benefit and necessity the only recourse is for the landowner to argue the lost value to the land that was taken. In the case of high value lands, well funded landowners or politically connected individuals or corporations, they can frequently influence the decision behind the scenes.

    This approach has rightfully been treated as a "nuclear" option for land protection as its use can bring a significant national backlash. The NPS got significant negative publicity during original AT trail corridor acquisition for the AT predominantly down south in rural areas and it took decades for things to calm down. Unlike a private land owner once the government owns the land, no on can get use prescriptive rights (although there are some creative backdoors involving mining claims) Closer to home eminent domain was being advocated for Saddleback when the prior owner decided to "greenmail" the federal government for a legal corridor across the Saddleback range. It was being advocated by some groups to pull the trigger on a seizing an easement in order to avoid establishing a precedent for paying very exorbitant unsupportable costs for easements for trails but a backroom deal in Washington ended up writing a check to the owner for a small strip of land that equaled much of the value of the entire resort. That precedent came back to haunt the AT when JR Dillon did a successful series of greenmail sales of the AT corridor in the Mahooscus. This fear of a short term voluntary or involuntary right for passage turning into future formal easement being seized was and is stoked by various Wise Use movements particularly out west. The International Appalachian Trail in Maine founder got in trouble Maine for allegedly laying out a trail over private land and led to long term issues.

    This is one of the drivers for the Mt Cabot trail closure. The public has a right to cross the land in question but the backlash is not worth it as it would put in jeopardy many trails over private lands. Since this became an issue the NPS and partner organizations have worked hard to reduce the number of these trails by relocating to public land but that has been predominantly in the WMNF. Examples of this are the Castle Trail relocation, South Moat and Baldface Circle trailhead and trail relocation.
    Last edited by peakbagger; 10-18-2020 at 09:45 AM.

  6. #21
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    In many states, adverse possession by private individuals must be “open and notorious”, so that’s a high standard to meet. I don’t know what NH provides.

  7. #22
    Senior Member Barkingcat's Avatar
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    Quote Originally Posted by NHClimber View Post
    In many states, adverse possession by private individuals must be “open and notorious”, so that’s a high standard to meet. I don’t know what NH provides.
    This NH Supreme Court ruling from just four years ago is the most recent case I can recall -- about continuing public access to a beach over a private landowner's property. It seems pretty thorough, and addresses your point of the standard for adverse possession.

    Ever since reading the opinion (when I was on a land use board), I've thought about this case with respect to long-used hiking trails. But this, to me, represents the nuclear option, and I think would do more damage than not.
    Last edited by Barkingcat; 10-20-2020 at 06:28 AM.

  8. #23
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    Thanks for the reference to the case. I do agree that it is an intriguing but "nuclear option" that could apply to trails over private land. When talking over a similar issue years ago with a lawyer, "open and notorious" came up and the lawyers explanation was that the legal meaning of open and notorious is far different that what a common person would think it is.

    The other issue is that some private land owners try to reclaim private rights over what are public right of ways. NH has a road classification system in place and if there is a old town road fallen into disuse that no longer has a purpose, the town can declare it a Class 6 road. The abutters of the "road" are allowed to install "gates and bars" on the road but the statute calls for that the gates must be able to be opened and closed by the public to continue to allow public use of the road. The town also has the right to remove the "gates and bars". The abutters to Class 6 roads frequently take this as the right to install a permanent fixed locked gate and install signage to prevent public access. Its effectively a bluff. A bluff may work in the short and long term but the public rights do not extinguish. I have seen multiple instances over the years of land owners trying to scare the public off of what are public right of ways using this approach. My guess is the Mt Cabot trail west falls under this approach and look how long the owner has gotten away with it. Note, I think the State of Maine passed a law in the last 20 years that extinguished public rights to old roads unless towns specifically acknowledged that they were still public.

    Unfortunately over the years as land get transferred through owners, references to public rights may not follow the deed chain. A subsequent buyer may think they own the land outright with no public access yet the rights still exist despite it not being listed on the latest deed. The general public thinks that what is on deed is inherently true but the reality is if its a warranty deed, all it means is that the seller is making a guarantee that what they are representing about the property is true to the best of the knowledge and if there is defect (omission, fraudulent claim, outright mistake) in the deed that the seller will correct the issue or pay damages to the buyer. This sounds like its pretty powerful but once the seller passes away and probate is complete the buyer has no one to make claims against unless there was title insurance and title insurance fimrs are somewhat notorious for extended litigation and rarely pay out. In other cases, a Quit Claim is issued, all the seller is doing is selling whatever right they have in the property and are making no representations as to if there are other owner or rights that come are attached to the property. Therefore a current property owner may not realize that the public has rights over land that they think is totally private. I have run into a couple of folks over the years that had bought north country properties only to have a logger show up and built a road through their yard to access a timber lot in the back of their property. The logger had a deeded right of way but the new owners were not aware of it.

    So the Class 6 road and old deeded rights are also possible ways of keeping public access open but it comes back to is the "nuclear option" worth playing if the collateral damage to all the other trails across private property worth it?

  9. #24
    Senior Member ChrisB's Avatar
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    Quote Originally Posted by Barkingcat View Post
    This NH Supreme Court ruling from just four years ago is the most recent case I can recall -- about continuing public access to a beach over a private landowner's property. It seems pretty thorough, and addresses your point of the standard for adverse possession.

    Ever since reading the opinion (when I was on a land use board), I've thought about this case with respect to long-used hiking trails. But this, to me, represents the nuclear option, and I think would do more damage than not.
    Interesting citation. But be aware that this case involved protracted legal wrangling over the course of several years, and $150k in litigation fees paid by the plaintiff.

    Sadly the Town of Rye NH refused to enforce the public access and allowed the owner of an expensive country club to close it off. The town then refused to take part in litigation, effectively giving the beach to the owner.

    Only the stubbornness (and $$) of long-time Rye resident Robert Jesurum reversed this unfortunate situation.

    I believe the parties are still fighting over the placement of signage!
    Last edited by ChrisB; 10-21-2020 at 09:17 AM.
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  10. #25
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    Given near infinite resources a private party can delay things for a long time with respect to public access https://www.businessinsider.com/mart...lawsuit-2020-1
    Most of the summaries I have read is that unless one party or the other pulls out it will end up a the Supreme Court.

  11. #26
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    Quote Originally Posted by peakbagger View Post
    Given near infinite resources a private party can delay things for a long time with respect to public access.
    Indeed. There is an owner with very deep pockets and an unpleasant disposition fighting deeded access for a path that crosses his land (and everyone else's) in a spot in NH that my father-in-law owns. He can afford to break the law and then we all have fight him to unbreak it.

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