Only land access to Cape Pogue Wildlife Refuge is over sand and by permit.
Mark Alan Lovewell/Gazette file photo

Lawsuit Seeks to Block OSV Use at Cape Pogue

A couple who own property at the extreme northern tip of Chappaquiddick are suing the Trustees of Reservations in an effort to stop the organization from selling oversand vehicle permits at Cape Pogue, a remote 400-acre wildlife refuge.

A couple who own property at the extreme northern tip of Chappaquiddick are suing the Trustees of Reservations in an effort to stop the organization from selling oversand vehicle (OSV) permits at Cape Pogue.

At a hearing last Tuesday in Boston, the Hon. Howard P. Speicher, a justice of the Massachusetts Land Court, heard arguments for and against a request for a preliminary injunction filed by Victor and Dawn Roberto Bruno Colantonio.

At issue is a right of way held in common by the Colantonios and the Trustees that provides a trail through the Cape Pogue Wildlife Refuge, a remote, 400-acre refuge accessible only by boat or four-wheel-drive vehicles. The majority of the refuge is owned by the Trustees and used primarily by fishermen, shellfishermen and bird-watchers, but there are a handful of privately-owned properties, including two parcels purchased by the Colantonios in 1999 and 2006.

The Colantonios contend the Trustees’ practice of selling OSV permits to the public overburdens the shared easement and constitutes a nuisance. Moreover, they allege, stakes, wires and plastic netting installed by the Trustees to keep vehicles on trails “is inimical to conservation efforts as it is hazardous and destroys the aesthetic of the marshes and tidelands.”

The Trustees point out that public vehicle access on the trails has been allowed since 1959, when the Trustees designated the refuge, and OSV permits have been issued since 1975.

“This is not the usual claim of overburdening an easement, which typically seeks to stop a new, novel or expanded use of a pre-existing easement,” attorneys for the Trustees said in court documents. “This claim seeks to change a deep rooted, long-standing use of an easement.”

In arguing against the injunction, attorneys for the Trustees said their organization was chartered by the state legislature to manage and preserve open spaces, including Cape Pogue, for public use and enjoyment.

“And the public has a long history of enjoying the Cape Pogue Wildlife Refuge through the use of OSVs,” they said in a response filed with the court.

The lawsuit was filed on April 4, just three days after new annual permits took effect for OSV travel on properties owned or managed by the Trustees.

On Tuesday last week, attorneys for the Colantonios filed supporting affidavits from Rachel Self and William Gazaille who identified themselves as the only year-round residents of Cape Pogue.

In her affidavit, Ms. Self said she and several seasonal residents met with the Trustees starting in 2013 to address concerns including “the complete lack of respect of the precious resource and stuck vehicles, overburdening, lack of communication, poor management, poor treatment and harassment by staff, among other things.”

“Over the past nine years conditions have become worse and worse. Not only has the TTOR failed to address our concerns, they have been willfully ignorant of them,” the affidavit continued.

Judge Speicher gave attorneys until May 3 to file responses to the two affidavits and said he would then take the request for an injunction under advisement.

Comments

Submitted by Anonymous (not verified) on Mon, 05/02/2022 - 17:59

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just a thought edg

No different from moving next to a pre-existing airport, then complaining about the airplane noise.

Barbara lennox Ilion NY

Yes agree this has been a long standing arrangement. They should just accept it, why should try feel entitled to have it their way for two families and it would impact dozens of folks, probably mostly islanders. If they weren’t aware of the arrangements that’s on them, if they were I don’t feel sorry for them.

Submitted by Anonymous (not verified) on Tue, 05/03/2022 - 06:28

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You got to be kidding Edgartown

Hard to imagine this isn’t a joke. Scary stuff to see several parties seeking to overturn decades of established and cherished public access. Fearful this litigious path sets the tone for any and all historical deeded access on the island to be challenged without any consideration other than greed and posturing. A salty shame….

Kathleen Boston

The decades of public access are a direct result of many of these families donations to the Trustees over the years, without which, not many at all would have had the pleasure of a day on Poge. As long term residents who have observed this land closer and longer than most, it seems reasonable that they are concerned and sharing their observations about the increase in OSVs, more drivers getting stuck and blocking ROWs, an increase in trash found on the beaches, and to the point of the article and lawsuit, less oversight and cooperation from the TTOR.

Submitted by Anonymous (not verified) on Tue, 05/03/2022 - 07:51

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Brad Chappy

Wow! Oversand allowed since 1959 and now it’s “not in my backyard!”
These people chose to live there! Zero chance of success but good luck!

Submitted by Anonymous (not verified) on Tue, 05/03/2022 - 08:55

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Wesley Nagy Martha’s Vineyard

I have been four wheeling out to and fishing Cape Pogue for 40 years. It is an amazing natural wonder out there. Because of complaints by a couple of abutters who bought their property knowing there was an easement and now have staled on it, there’s no reason to restrict the public service of that natural wonder. Shame on them …

Submitted by Anonymous (not verified) on Tue, 05/03/2022 - 09:23

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david finkelstein West Tisbury

Here we go, one of the last vestiges trying to be taken away. If there a a few bad apples driving on the beach and there will be, the Trustess need to do a better job, but if this gets taken away a part of Vineyard life as many know it will be substantially decreased.
I remember Dr. And Mrs Self and how they welcomed fishermen. This new generation, is it a case of the NIMBY. You move near a farm because it’s beautiful then complain of the manure smell.

Marty Boston

You hit the nail on the head here, David. The Trustees need to do a better job. It’s just not sustainable for the Trustees to continue to sell unlimited OSV stickers without any regard to realistic limits on traffic and the conservation efforts that they claim to support. There is little guidance for sticker recipients in terms of how to drive out there, what the etiquette is for other drivers, and how to protect the fragile ecosystem and birds. And how much of the OSV sticker sales are coming back to Chappy or MV anyway? That info would be interesting to see! I don’t think anyone is suggesting that beach access gets taken away entirely, but the Trustees have stopped caring and have prioritized sticker sales and profit over protection and conservation.

Submitted by Anonymous (not verified) on Tue, 05/03/2022 - 10:02

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SBF Chappy

The TTOR upper management has not been what it used to be for a long time. Their concerns are understandable however the must be a compromise somewhere. The Selfs have been out there forever so they must be treated poorly to go this far. I wonder what Foster Silva would be saying about all of this? I'm sure he would have had a clever solution. Sad day for Chappy.

Submitted by Anonymous (not verified) on Tue, 05/03/2022 - 12:10

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Patricia Tyra Edgartown & Dania Beach, FL

I have been looking forward to a "paid" trip to the lighthouse this summer. My 3rd in 30 years! Such a shame that NIMBY seems to more of the issue but yes we all need to be careful of our environment and most of us are!

Submitted by Anonymous (not verified) on Tue, 05/03/2022 - 12:16

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Katamapoint Edgartown

For years I have advocated an elimination of over sand permits. This area and I include Norton Point is so fragile that wholesale use is unacceptable. Has anyone noticed what has happened to this area in the last 40 years. It’s not good. I have no problem with limited use for fishing and the like. But parking 300 cars a day to every Tom, Dick or Harry who happens to have a four wheel drive vehicle for one day is unacceptable.

Submitted by Anonymous (not verified) on Tue, 05/03/2022 - 12:19

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Trey Williamson

I read Rachel’s affidavit. It provided real insight to TTOR’s management practices. I made the decision years ago to stop donations to TTOR. Many things changed for the worse after Dave Belcher retired and his successor was let go.

Submitted by Anonymous (not verified) on Tue, 05/03/2022 - 14:39

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Nick Edgartown

O.K., let's try this again in a more subdued manner.
If the TTOR did not oversell OSV stickers and day passes, perhaps these residents would not be litigious.
This parcel of land can only hold so many people before it becomes unbearable.
Have you been to Norton's Point recently during the summer? You might as well be at State Beach in July or August.

Submitted by Anonymous (not verified) on Tue, 05/03/2022 - 16:12

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gina Menemsha/NYC

years ago the majority of the visitors were Jeeps & much smaller 4 wheel vehicles than today.. Huge today. Perhaps the TTOR can impose a daily limit on attendance.. as a compromise. after all. why trek out there if it's becoming State Beach crowded. Takes away a lot of the beauty..

Submitted by Anonymous (not verified) on Tue, 05/03/2022 - 17:21

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Kristin Cape Cod

The Selfs have nothing but respect for that area - which they have owned since the 1940s, and the family has for years, as was previously mentioned, openly supported responsible public use. Hardly a history of NIMBYism.
From what I understand the homeowners have attempted to resolve the issue with the TTOR directly with zero response. The TTOR should stop viewing sticker sales as a cash cow and do something to practice stewardship of the land by putting an end to unlimited overuse. And as anyone who has been there in high season has seen- perhaps also address irresponsible (non 4 wheel vehicles etc) and disrespectful behavior in general.

Submitted by Anonymous (not verified) on Tue, 05/03/2022 - 20:34

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Sean Chappy

I think a lot of readers are missing the point and getting lost in the headline. From my understanding, homeowners at Pogue have a problem with TTOR selling permits for OSV and providing next to zero oversight. They used to provide much better oversight with a fully functioning staff. I think the article isn’t addressing that aspect, which I believe is at the root of the lawsuit. I believe these OSV permits cost hundreds and hundreds of dollars. (I’ve heard as much as $500!!) Where is the money going? There are barely any TTOR staff people out there anymore and the land is surely being abused. Money from the permits was supposed to go to managing the protection and preservation of this beautiful part of our island nature reserve, but is it? I have a feeling this money is going somewhere off-island, and I bet if you asked TTOR they won’t show an accounting of the permits. If the TTOR would just protect the wildlife preserve by overseeing “guests with permits”, these lawsuits surely wouldn’t exist. I’d bet money on it. I don’t think this is a case of the “new generation” of Pogue dwellers trying to create obstacles. They are trying to get it back to what it used to be. Controlled access vs. the unwanted uncontrolled access. Has anyone ever been caught behind a tourist stuck in the sand out there with an AWD vehicle (not 4x4) with no idea how to get out?! I have and it’s a nightmare. Where is the TTOR to monitor this so it situations like this don’t happen? I also think it is a safety hazard, especially at sun down. I would love if the Vineyard Gazette could do some investigating of facts so they can educate my fellow readers on this very special piece of Chappy before it is destroyed forever. This is a bigger story and the readers need more info! I would love for the confusion to be cleared up so we can have a nice summer season. Stay safe out there my friends. Leave the AWD RAV4 with tires fully inflated at home. Oh, and a question…don’t we have plovers to protect out there anyway? Or, did everyone forget about them? #BirdsHaveRightsToo

Submitted by Anonymous (not verified) on Tue, 05/03/2022 - 21:10

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Caitlin Boston

A request for responsible access seems completely reasonable… this is a wildlife refuge… the public should be allowed access for recreational purposes, but protection of the land should be paramount.

Lorraine Edgartown

Caitlin, I agree. Back in the day, I could sail out there in a non motorized vessel, with a book, an apple, a bottle of water, and read and enjoy for several hours and not see one other vehicle or vessel. Not now. We have to protect that area, the TTOR are not blameless, they often do override their stated mission. I loathe to see the TTOR getting "grabby". I put my wagers on the locals who have kept the island beautifully for hundreds of years.

Submitted by Anonymous (not verified) on Tue, 05/03/2022 - 21:37

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Hakuna Matata Chappy

You’d think that if anyone would understand the values and appreciation of Chappy and its lands, it’d be these folks living out on Pogue… guess they could use a refresher on the Chappy Way… such a shame, hope this suit is unsuccessful. They won’t be squawking for long though, as soon the tides will finally rise enough to make their homes inhospitable and they will seek help from the Trustees… maybe then, they will wish they didn’t push this forward!

Nancy

You are exactly right, the folks living out on Pogue understand better than anyone how important the land is, and that is precisely why they are trying to protect it from being over-run by too many OSVs who do not respect the “Chappy Way”.

Submitted by Anonymous (not verified) on Wed, 05/04/2022 - 06:44

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Jack Stamford CT

I find the owners allegations credible here. I think the Trustees have used Cape Pogue as a moneymaker and have done very little “management”. If a lawsuit is required to have them wake up and understand that more aggressive management (daily limits, rotating routes, curtailing osv passes, replenishment of beach, plants, shrubs, trees, more active patrols) instead of just collecting OSV revenue might lead to more harmony between the landowners and more accountability from Trustees. Perhaps this reflects the same issues at the heart of the Katama Farm debacle last year where the Town had to take back its assets until the Trustees got their act together?

Submitted by Anonymous (not verified) on Wed, 05/04/2022 - 07:59

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Katie Dubow Menemsha

The residents of the area respect the land more than anyone else. It sounds like they’ve been trying to work with the TTOR on compromise to no avail. If there is anything we can do as fellow residents, it’s support protecting the land we love so much. We have so little of it left.

Submitted by Anonymous (not verified) on Wed, 05/04/2022 - 09:27

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Amanda Cape

The article’s title is very misleading. The residents in no way want to block access. They want reasonable limits as traffic has skyrocketed in recent years and the trustees are overstepping (putting fences on private property, harassing neighbors, etc.) The lawsuit is a culmination of 15 years of attempts to work with the trustees to find a compromise. In the 50s there were far fewer cars traveling the land and present day there are 200+ cars a day. This takes a toll on the land. The trustees are in it for the money not protecting the land.

Submitted by Anonymous (not verified) on Wed, 05/04/2022 - 10:02

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Chappy Chappy

Lawsuit aside.
This is a wildlife refuge.
Should vehicles be driving here?

Submitted by Anonymous (not verified) on Wed, 05/04/2022 - 10:27

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Jon Liebtag

After reading what the actual court document says it's totally clear no one is trying to stop beachgoers from enjoying Cape Pogue. What's clearly happening is frustrated stakeholders who, after 10 years of being jerked around by the TTOR, were left with little choice other than to file a lawsuit to keep TTOR from putting up fences on their private property and dismissing their deeded rights as stakeholders.

Submitted by Anonymous (not verified) on Wed, 05/04/2022 - 10:54

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Ben I. Edgartown

If vehicles getting stuck is such an issue on the Cape Poge Preserve, there is a simple answer. Require only true 4WD vehicles, not AWD. The Steamship Authority has a robust back-end database of existing cars when you book your reservation and calculate the size. The same can be done for purchasing OSV Permits. Input your vehicle (ie. Honda Pilot or Subaru Forrester) and the query would determine the drivetrain of that vehicle and that this is an AWD vehicle and not suitable for Cape Poge. In my 20+ years driving on Norton Point and Chappy it's clear that Norton Point is far better suited for AWD vehicles (less remote, less challenging soft sand, and more established trail) to which Cape Poge is far more perilous. Certainly this is just an aspect of the existing home owners grievances but if TTOR established even this first wave of sensibility, it may very well appease the plaintiffs on this case and cause dialogue that is required to ease tensions and avoid costly litigation on both sides.

Submitted by Anonymous (not verified) on Wed, 05/04/2022 - 12:18

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Jennifer

While I am glad this article is calling attention to the current situation on Cape Pogue, I do hope the Gazette continues to investigate the overall circumstances that led to this lawsuit. Are the residents trying to completely restrict access or do they want it to be limited to responsible and safe access? Unfortunately, it appears attempts to work with the TTOR to try to accomplish safer, responsible, and respectful access have so far failed. The quantity of OSV permits should be limited and the OSV access should be limited to 4WD vehicles that can safely access the land. How do the TTOR confirm AWD vehicles are actually capable of handling the challenges of over sand driving? Do the TTOR confirm vehicles are equipped with a shovel, jack and board suitable for support, tire gauge, tow rope or strap, and full-size spare tire? It is a beautiful resource that needs to be protected to ensure continued access to the public – irresponsible and unlimited OSV access is not the way to maintain and protect this resource.

Submitted by Anonymous (not verified) on Wed, 05/04/2022 - 13:33

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Alia McKee

The land is first and foremost a wildlife refuge. I’m all for access, but regulated and respectful access so wildlife and people can BOTH thrive. The TTOR sell as many stickers as possible and it’s just too much. I just went out to Utah and hiked Angel’s Landing in Zion. It now requires a permit — because the number of people was doing damage. It was fantastic. People can still hike, but there are limited spots.

Submitted by Anonymous (not verified) on Wed, 05/04/2022 - 16:35

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Jay

I am a resident of Nantucket and have an interest in conserved coastal properties. When I read the article my first thought was that the title is misleading and maybe some people commenting here have not had a chance to read the whole article yet. This is not a matter of NIMBY, summer people coming down for 2 weeks and complaining. It sounds like the concerns of many people on Poge, especially the year-round couple, are about the care and conservation of this precious resource. While the property may be owned and managed by the Trustees it was gifted to them with the promise of preserving it. A trust between landowners who wanted to keep the land wild and free and a conservation group who are able to carry that responsibility into the future. According to their website the Trustees are committed to “… working to protect special places, providing loving care of our reservations, building creative new programs to engage people, and sharing our expertise with neighbors and partners…”. I don’t see how blocking right of ways, not responding to injured animal reports, or allowing all-wheel drive vehicles on a beach they cannot traverse (which they do not allow on Nantucket-4x4 only!) upholds this mission. We trust the Trustees to be responsible for the conservation and maintenance of this fragile ecosystem, but it is our responsibility as community members to hold the Trustees accountable when there is a breach of this trust.

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