Lehigh River Private Again

[npaszko]

Good Morning Guys,

Long time lurker that is ready to be a part of you guys (and gals).

I'll post this report tomorrow in the report section just absolutely revved up after what happened today. And I apologize for burning this spot, but I don't know what else to do.

Fished the Lehigh today right at the great Lehigh Falls. Absolutely phenomenal bite, first two drifts with an egg pattern, a brown and a bow. A friend of mine stripping the big pool also hooked two in his first two casts. I worked the falls rapids all the way down to the big pool and picked up four more. Everything is spawned out and healthy, wonderful to see. And the bow was spitting eggs.

I got to the big pool and was landing my smallest fish of the day when an older gentleman in a red flannel shirt/jacket approached me and my friend screaming that we were trespassing and we ether leave immediately or deal with the troopers.

I WAS FLOORED!!! Isn't this exactly the whole court case ordeal from 1999??? I explained to him the river is public, we were standing in the river or below the high water mark and killed ourselves to make sure we stayed below the high water mark (not all that easy walking down there and staying in that zone). He goes on a rant that the 1999 superior court case was overturned by a 2012 supreme court case, that the river was no longer navigable and thus private.

Even better, we walk out at the 115 bridge (where we accessed the river by walking down the cement wall of the bridge, I'm assuming that's highway right of way) and some old lady in a VW of some sort screams at us that you guys can't be here, you're trespassing. This little old woman, WTF!!! We parked on 115 on the shoulder.

Guys, I work for the DOC, thus I can't really afford to get into trouble, and I just new that a trooper would have no idea of the fact that the river is public and god knows he would say that we walked up the bank and trespassed that way. I couldn't risk it without doing my research. Thus I told the guy I will walk away but I will be back once I got everything in my court.

I plan on doing my research all week, calling the fish commission everyday this week till I get an answer on what to do, sending them e-mails, and so I come to you.

Believe it or not, I can't find the 1999 court case online(remember this case was initially won, then successfully appealed by the club, and finally successfully appealed by the state in 1999). The PAFBC link doesn't work, and the only link that comes up is the original case that was won but appealed. Can someone please send me the link to the court case so I can print it up.

Has anyone heard of a 2012 Supreme Court Case?

Where can I find the official state definition of navigability and how it relates to public domain and the high water mark being in public trust?

Anybody know who the warden is that patrols there is Blakeslee/stodartsville? An e-mail, maybe cell #?

Guys, anyone else I need to contact or need to have on me for my return journey down there next weekend? Can't let guys like this win, not after how hard its been fought over.

I even stopped at AA outfitters and bought some hooks just to release my pent up anger on someone who might understand. The guy called me an idiot for walking away from a hot bite (seriously).

Alrite guys, thank you for listening to my rant, and I welcome any and all input.

If you all are looking for a hot bite, feel free to go get yelled at at Lehigh Falls. I will start being a regular reported on some very odd streams here in Monroe and Pike, might add some variety.

Tight lines.

 

[Dave_W]

Welcome, and thanks for the heads-up on the situation (no need to re-post this in an additional forum).

In the meantime, it would be prudent not to jump to too many conclusions until we have further information on the matter and the Lehigh regulars get a chance to chime in.

Information on the relevant court cases and folks to contact should be forthcoming from the regulars in the know.

 

[afishinado]

Here is the original court ruling you are looking for:

http://www.allcourtdata.com/law/case/lehigh-falls-fishing-club-v-andrejewski/czbJ4jeE

From the above court ruling:

The action proceeded to a hearing where Appellant presented substantial evidence regarding the navigability of the portion of the Lehigh River located between its land. This appeal followed the trial court's determination that under the law, the Lehigh River has been determined to be a navigable waterway and therefore, is owned by the Commonwealth and held in trust for public use. This appeal followed.

¶ 6 On appeal, the Department of Conservation and Natural Resources of the Commonwealth of Pennsylvania, the Department of Environmental Protection of the Commonwealth of Pennsylvania, the Pennsylvania Fish and Boat Commission, and The Pennsylvania Federation of Sportsmen's Clubs have all filed amicus curiae briefs. The former two entities filed a joint brief, and the latter two entities also filed a separate, joint brief. All four amici curiae support the trial court's conclusion that the Lehigh River is a navigable waterway.


Some background info:

Non-navigable waterways are
streams, creeks and some rivers that have
not been proclaimed by a court to be
navigable. Therefore, all bodies of water are
non-navigable if they have never been taken
before a court to be decided upon.
However, once a body of water is declared
navigable, it can never revert back to being
non-navigable, even (if) reliction occurs. That
is, the process of a water feature drying up,
leaving land remaining as a result.

Link to source: http://www.psls.org/resources/Documents/newsletters/PAWaterBodies.pdf

If you access on public land and stay within the boundaries of the waterway, aka the "high water mark" you have every right to fish there.

Fish on, sir.

I even stopped at AA outfitters and bought some hooks just to release my pent up anger on someone who might understand. The guy called me an idiot for walking away from a hot bite (seriously).

Turns out the guy was right! :lol:

 

[foxtrapper1972]

Welcome to the NEW AMERICA. Now it's become popular among a certain set to scream at people who are "trespassing" on land and water that they don't even own. It happens to me all the time. Usually it's the freedom loving (fear mongering) , gun toting, flag waving types doing their best to stamp on everyone else's rights.

 

[npaszko]

Afishiando, thank you so much sir for the 1999 case. Once ruled navigable, can not be reversed, awesome, thank you. But this was a Superior Court Ruling, this guy was screaming 2012 Supreme Court Ruling, can the supreme court overrule? Don't think so in this situation/case, but its that uncertainty that makes this guy intimidating.

So what happens when he calls the state troopers? Obviously, I will print out the entire court case and have it in my possession and will have my gopro running the entire time from my car to the falls till the battery dies. I'll have multiple copies and make sure I hand the gentleman, old lady, and any trooper a copy. What should I expect? A ticket? I won't defy the cops order, but then of course I have to fight the ticket. But it should never come to that. Then make this guy produce the 2012 court ruling, burden of proof on him, right?

Thanx again Afishiando, still waiting to see what other data others can offer.

 

[afishinado]

npaszko wrote:
Afishiando, thank you so much sir for the 1999 case. Once ruled navigable, can not be reversed, awesome, thank you. But this was a Superior Court Ruling, this guy was screaming 2012 Supreme Court Ruling, can the supreme court overrule? Don't think so in this situation/case, but its that uncertainty that makes this guy intimidating.

So what happens when he calls the state troopers? Obviously, I will print out the entire court case and have it in my possession and will have my gopro running the entire time from my car to the falls till the battery dies. I'll have multiple copies and make sure I hand the gentleman, old lady, and any trooper a copy. What should I expect? A ticket? I won't defy the cops order, but then of course I have to fight the ticket. But it should never come to that. Then make this guy produce the 2012 court ruling, burden of proof on him, right?

Thanx again Afishiando, still waiting to see what other data others can offer.

You have the right to fish....the law is on your side, but the State Troopers may pay little attention to the papers you carry with you.

They are there to enforce the law, but often really don't know much about the details of such laws; it's really not their job to interpret laws.

They do know about trespass laws, keeping the peace and resisting arrest.

Contact the PFBC office in the area. I would hope the PFBC would stand behind you and clarify the situation. Also you may even try to contact someone in the State Police barracks.

I really hate to see people get bullied out of anything when they are in the right.

Be careful, be respectful of them, and be safe.

 

[npaszko]

Just read the whole court case, Supreme Court ruled river is navigable and private, done, sorry, posted before I read. Still worried about cops showing up and not knowing, but I'm gaining confidence to not care, jsust hand them the case, sit down and relax, see what they say, saying they even care that I have the case in my possession and it means something to them. Just gotta keep the gopro on to prove I stayed below mean high water.

Still, anyone know who the warden is down there and a contact # or e-mail. I got the northeast regions answering machine number, If I have to, I'll hound it and send e-mails. Really wish I could warn the cops ahead of time that they might get a call and hand them the court case before I head down so they tell the guy to buzz off, but oh well.

Still here listening guys.

 

[foxtrapper1972]

If the guy persists and bothers you anymore I am wondering if he can be arrested for harassment? I run into these types and they are often very aggressive.

 

[troutbert]

PFBC Law Enforcement for NEPA: (570) 477-5717

I recommend talking to them first. Explain the whole situation.

 

[Flydrifter74]

Afishinado, thanks for the link.

I have not run into any problems yet so far with uninformed landowners thank god. I will also print this out just in case i run into one so i can inform them of the law. I have not fished the Lehigh yet but if i run into one of them landowners and they say im calling the cops...i'll tell them go ahead...so i don't have too and then tell the cops im being harressed or being threatened. Just remember all...your life is not worth losing over a fish because now adays some people will take things to extreams. It's ashame the world is the way it is today.

 

[phiendWMD]

foxtrapper1972 wrote:
If the guy persists and bothers you anymore I am wondering if he can be arrested for harassment? I run into these types and they are often very aggressive.

I don't know about PA but there are videos on youtube from Michigan where people get in trouble for harassing hunters and anglers.

 

[Sylvaneous]

Maybe if you have cell service and should oblige him by calling the polic that someone is violently harassing you in a navigable waterway.
Quite often, those types are whiners and over-confident that they are in the right and everything will work in their favor. Turning the tables on them is unsettling and often sends them off grumbling.
OR: they are they are half a step beyond those domestic terrorists who occupied federal land under force of arms in Oregon or Washington. They'll shoot you at a distance and try to hide the (your) body. Whereupon they will fail and spend their life in jail. Either way, we, the public rights people win!
We will celebrate your memory as a martyred hero.

Syl

PS: I'm only 1/2 kidding

 

[Sylvaneous]

phiendWMD wrote:

foxtrapper1972 wrote:
If the guy persists and bothers you anymore I am wondering if he can be arrested for harassment? I run into these types and they are often very aggressive.

I don't know about PA but there are videos on youtube from Michigan where people get in trouble for harassing hunters and anglers.

It's illegal in PA too. $300 fine, plus whatever you can hang on them. It was orginally about PETA , but it works for the more militant right wing renegades as well as those on the left.

Syl

 

[pcray1231]

The 2012 case in question is likely PPL Montana, LLC v. Montana, 132 S.Ct. 1215 (2012).

U.S. Supreme Court. Not PA. PA had always held that a navigable river is navigable in it's entire length. As did Montana. But the foundation of navigability law is federal, not state. And the supreme court, unaminously, found that navigability in Montana must be determined section by section. That even if sections both above and below were indeed navigable and thus state owned, any portion which is not navigable is private. The case in Montana was about waterfall sections of the Missouri and Madison, for what it's worth.

The part I'm not clear on is title ownership vs. public trust. Montana was trying to charge rent to a power company for hydroelectric facilities on said riverbeds. They were rebuked because that stretch of those rivers were not navigable in fact, and thus not the states property to charge rent on. But the wording of the opinion also seems to decouple navigability for the purpose of determining stream bed ownership from navigability for the purposes of public trust (right of the public to boat and/or fish). So it could be privately owned yet the private owner has no ability to exclude the public.

I'd have to do some research. In any case, if there hasn't been another PA case since 2012 (I don't know), then the standing precedent is that ALL of the Lehigh River is navigable. A landowner could go to court to overturn this precedent, claiming this section isn't navigable and under this decision needs to be re-examined separate from the rest of the river. And the courts would have to make a ruling on that landowners specific section. Though even if this all happened and the landowner won, making the stream bed private, it's still not clear to me whether he can exclude the public. Especially if the PA legislature ever officially declared it a public highway.

I.e. even if the state doesn't own it, they can still claim some control.

 

[Millsertime]

When facing upstream.......Were you on the left hand bank or the heavily posted right hand bank?

 

[PALongbow]

Be careful because harassment can go either way. I had a guy threaten me this year when I told him to get off my land. He didn't ask to access my property, just felt entitled to my land. Issue was reported.

Again best to ask permission or avoid private land all together.

Ron

 

[Dcap240]

I'm pretty sure all around the 115 bridge is private property. It was always posted all around there. Maybe it has changed since I was last there. The river is accessible but just not from there, or at least it was. The guy in the court case his family owns/owned land on the river. And those fish are stocked by the Lehigh falls club.

 

[npaszko]

Thank you guys so much for all the input, just got to work, gonna call PAFBC at around 10 and type some draft e-mails to send to them, the townships (there's two involved here) and gonna decide if an e-mail to the state troopers and PMRP is in order. Wrote a facebook post to PAFBC and Historic Stodartsville about the situation, haven't seen a response yet.

Millerstime, if you were standing on the 115 bridge facing downstream, I wallked down the left bank. Both banks are littered in Posted signs. Heck even the island has a posted sign on it. The guy came at me from the right bank, literally meaning I was standing in Monroe county and he came at me from Luzerne county. I parked on the 115 North shoulder right at the beginning of the guardrail before the bridge. No "No Parking" or Posted signs. 115 north has Posted signs littering it and boulders on the shoulder. The shoulders of 115 in Luzerne County also have Posted signs right up to the roadway. But I kept my cars tires on the asphalt anyway figuring I had to mitigate each and every minute point.

This would be so much easier if I could just get a warden to talk to the guy or be in the area patrolling this weekend and I had a way to contact him when this confrontation goes down. Or for the cops to be informed that the river corridor is Public and can't be trespassed on. I know I'm going to get an answering machine when I call the PFBC number, has happened many times before. I'll obviously leave a message and call everyday this week hoping for a response and e-mails daily.

Thanx guys.

 

[npaszko]

Dcap, I am sure the land is private, again, when I walked down to the creek, I actually walked on top of the cement walls DOT built, I'm assuming, to protect the bridge abundment and gravel. These walls are attached to the bridge and you simply scoot your but over the guardrail and onto the wall never touching anything private. At the end of the wall, a short hop and you are in the mean high water zone. Even went in on the upstream side of 115 where the gaugeing station is. I assumed every minute point.

The deeper I think about it, really, the only one subjective aspect in this whole scenario is right at the falls. The entire area is slab rock, and except where the slab rock ends and the forested bank starts rising, I take it that under a normal high water event, the entire rock is underwater. In order to continue down past the first fall to get to the big pool, your feet do go dry for a moment, but again, this land is underwater during high water, and I immediately dropped right back down into the water. I never approached anything that would certainly be considered above the high water mark, never approached the top of the bank anywhere, including on that slab rock at the falls.

The guy was screaming that even me standing in the water talking to him, I was trespassing, and as I left, I stayed in the river all the way back to the cement wall of the bridge (except for the one moment at the first fall). My buddy jumped up on the bridge wall and pulled my fat gut up onto it as well. Walked up the wall onto 115.

I will GoPro the entire trek in next weekend and I'm sure you'll agree, no private land was touched in the tickling of some trout. And if a private entity wants to stock a public water, well, Rams Club, Cedar Creek, you guys have debated this point before, I'll leave it at that. And I doubt the upper lehigh is class A.

 

[Millsertime]

Interesting Morning Call article from 1996.

Court case. Andrejewski vs. Lehigh Falls Fishing Club


http://articles.mcall.com/1996-07-07/sports/3110866_1_club-members-trespasser-lehigh-river