Broad head Analomik Access - newly posted

[Swattie87]

In reference to the link afish posted:

In a practical real world application sense it’s not as simple as that perspective would lead you to believe, but yeah. There’s a certain angle being cut there given where it’s coming from, but I generally agree with it. Or would hope that’s how things would ultimately shake out anyway.

Important to keep in mind though there’s another interpretation of the law from the opposing perspective, as Ron generally points out in these threads. And it is up to the courts to interpret that law when it’s unclear or conflicting.

 

[pcray1231]

Yeah, it's not right to say it's non-navigable until declared by a court of law anymore than it's right to say it is navigable until declared by a court of law. Both statements are equally false.

It already is, or it isn't navigable. We just don't know yet! lol. But a landowner who posts it assuming it's his is taking a legal gamble that it's non-navigable. That gamble is no worse or better than a trespasser who gambles that it is public. They're equal. The landowners who say trespassers should have their ducks in a row before trespassing aren't wrong. But they themselves should have their ducks in a row before they put up that posted sign too.

In the event that a landowner takes that gamble and posts it, and a fisherman also takes the gamble and trespasses. Neither has the moral high ground here. Both claim rightful ownership, both got called out by the other side, and we have a good ole' property dispute on our hands. A court then decides who is right, with the loser paying the legal price for his gamble.

The list that was linked is the state of Pennsylvania's best estimate of which streams are navigable. They are not the final say, but that's their opinion. A landowner group could just as easily put out their own list. Neither has any legal meaning. But the list was derived from a legal description of what it means to be navigable, so it's probably reasonably accurate.

But one would hope that if organization, including government, puts out such a list, they're willing to back it up. That means supporting in court individuals of the public who recreate on such lands, as well as landowners who post lands not on the list.

 

[PALongbow]

The state does not own the stream bed....period! Their name is not on my deed and I pay taxes on the stream bed so in legal definition I am the owner of the property. There are also land warrants that were issued back in time that supersedes commonwealth law such as commercial highways and mill dam acts. Our local Fish & Boat warden which is doing the right thing has also made it a point in a recent newspaper article to tell people 'in their opinion' to stay away from private property. The state has a tendency to over reach when it benefits them but doesn't do any good for landowner relationships and fisherman in general.

Ron

 

[lycoflyfisher]

Ron, if you could post a link to that recently wrote article I think we all would be interested in reading it.

 

[Swattie87]

PALongbow wrote:
The state does not own the stream bed....period! Their name is not on my deed and I pay taxes on the stream bed so in legal definition I am the owner of the property.

Though technically right probably, this is an overly simplistic perspective in the opposite direction of the comments I made in response to afish's post with the link to the NOR's take on things. Both are just the analysis from one viewpoint (or the other). From a practical standpoint, in terms of how this scenario plays out, it's far more complex.

The truth is, if challenged, though I am sure it will be considered, more than just your deed will be weighed by the courts in their evaluation. Such as the historic navigability and commerce of the creek in question, in a similar fashion to other precedential cases that have already been heard and decided by the courts. Again, unless I'm mistaken and someone can show me the case law, I believe they've all been found in favor of navigability and public ownership of the streambed.

Edit: I do agree with the premise that if a stream is declared navigable, and thus its streambed is public property, that the adjacent landowners should have the streambed portion of their properties removed from their deeds and their tax liability for the property.

 

[franklin]

PALongbow wrote:
The state does not own the stream bed....period! Their name is not on my deed and I pay taxes on the stream bed so in legal definition I am the owner of the property. There are also land warrants that were issued back in time that supersedes commonwealth law such as commercial highways and mill dam acts. Our local Fish & Boat warden which is doing the right thing has also made it a point in a recent newspaper article to tell people 'in their opinion' to stay away from private property. The state has a tendency to over reach when it benefits them but doesn't do any good for landowner relationships and fisherman in general.

Ron

Wouldn't that have been the case for landowners along the LJ in the case that was determined in court?

I'm not coming from the perspective that all streams should be accessible. I'm a strong proponent for property owners rights and own woodland with streams. Even a barn with a spring house in the back end. (Not sure how the 50 foot idea works there.) And I post. Mainly against hunters who disrespect the property or common hunting etiquette. Although I do grant permission to most who have asked.

 

[afishinado]

PALongbow wrote:
The state does not own the stream bed....period! Their name is not on my deed and I pay taxes on the stream bed so in legal definition I am the owner of the property. There are also land warrants that were issued back in time that supersedes commonwealth law such as commercial highways and mill dam acts. Our local Fish & Boat warden which is doing the right thing has also made it a point in a recent newspaper article to tell people 'in their opinion' to stay away from private property. The state has a tendency to over reach when it benefits them but doesn't do any good for landowner relationships and fisherman in general.

Ron

If anyone followed the court cases for the navigability of the Lehigh or the Little Juanita the case was about the history of commerce and thus the issue of navigability on the rivers and not anything to do with what any individual landowner's deed says.

Remember in these cases, and all cases for that matter, by law the entire length of waterway is deemed a public stream bed. The court has no interest in litigating for each individual landowner interests. It's pretty much all or nothing.

So the Lehigh is a public stream bed from Easton all the way up to where it begins in the Poconos.

 

[ryansheehan]

larkmark wrote:
I wish the government would take 50 ft or more on each bank of every waterway in the country and create a buffer with trees and plants and access for the public. I know this would not be popular with many landowners but think about the long term effects this would have for the environment. Talk about a wonderful restoration project! Land is routinely taken using eminent domain laws for all sorts of projects but this would be a very worthwhile use of that method of taking property.
I have always believed that all waterways should be protected more than they are and also open to the public. Some things are just too important to be private property.

Smh, unreal the entitlement.

 

[fisherboy3]

Well, in the case of this stream, I dont think it will ever be deemed navigable. There is way too much money involved with clubs on the upper brodhead that would probably hush the whole thing away. The stream was in fact navigable back in the 1800s for logging.. The section that was originally posted is a section that has been public for a LONG time. So obviously people are going to be a little pissed off that the NEW landowner bought it and posted the whole entire stretch.

 

[larkmark]

ryansheehan wrote:

larkmark wrote:
I wish the government would take 50 ft or more on each bank of every waterway in the country and create a buffer with trees and plants and access for the public. I know this would not be popular with many landowners but think about the long term effects this would have for the environment. Talk about a wonderful restoration project! Land is routinely taken using eminent domain laws for all sorts of projects but this would be a very worthwhile use of that method of taking property.
I have always believed that all waterways should be protected more than they are and also open to the public. Some things are just too important to be private property.

Smh, unreal the entitlement.

Buzzword much? Just putting this out for consideration. Sometimes the good of the planet outweighs things such as private property. Pipelines and highways and dams and railroads have frequently taken property for purposes that were deemed necessary so why not something proven to be necessary like the health of waterways and people and the planet?

 

[larkmark]

If someone posts land they do not own what can they be charged with? How likely would police or courts uphold the charge?

Some people seem to think that "what's mine is mine and what's your's is mine too". See a lot of posted sign creep as landowners place signs strategically to block access to public lands especially aimed at hunters and fishermen. Also posting right to very edge of a paved road is probably in many cases not right.

 

[franklin]

larkmark wrote:

Buzzword much? Just putting this out for consideration. Sometimes the good of the planet outweighs things such as private property. Pipelines and highways and dams and railroads have frequently taken property for purposes that were deemed necessary so why not something proven to be necessary like the health of waterways and people and the planet?

I don't see the government as any better stewards of the land than private individuals. I'll point out the recent thread about the damage along the Saucon by a water/sewer authority. I'd also say that public rights of way along waterways are trashed up by that public more so than what most private land is. The exception may be less accessible streams in the state forest system.

 

[Millsertime]

franklin wrote:


I don't see the government as any better stewards of the land than private individuals.

If dedicating millions of acres in the USA as public property by the USGOV isn't being a good steward, enlighten me....

Have you fished in other countries? Public access isn't a fraction as to what we have. For that reason alone, I give our GOV a pat on the back.

 

[larkmark]

franklin wrote:

larkmark wrote:

Buzzword much? Just putting this out for consideration. Sometimes the good of the planet outweighs things such as private property. Pipelines and highways and dams and railroads have frequently taken property for purposes that were deemed necessary so why not something proven to be necessary like the health of waterways and people and the planet?

I don't see the government as any better stewards of the land than private individuals. I'll point out the recent thread about the damage along the Saucon by a water/sewer authority. I'd also say that public rights of way along waterways are trashed up by that public more so than what most private land is. The exception may be less accessible streams in the state forest system.

Requiring a buffer zone with trees and native plants or outright taking the land along streams and restoring them with compensation of course to landowners via eminent domain would take many miles of stream bank out of agricultural use which is a huge problem for waterways. The gov't actually does a good job with most natural areas they manage throughout the USA from what I have seen. Local gov't maybe less so.

 

[lycoflyfisher]

Look into the success or lack thereof for the thousands of CREP riparian plantings. There was a ton of money spent (i believe 100's of millions) and your likely to see more empty tree tubes than an established buffer. I am not saying that planting trees in the riparian zone is a bad thing, I am just saying that mass replanting efforts funded by govt are not always successful. There is without a doubt a benefit of having established buffers, but this is a whole different thread.

 

[Mike]

See the following paper, which is an instructive review that pertains to the sub-topic of this thread ...

Public Rights in Pennsylvania Waters
by R. Timothy Weston
Temple Law Quarterly Vol. 49, No. 3, Spring, 1976.

 

[afishinado]

Mike wrote:
See the following paper, which is an instructive review that pertains to the sub-topic of this thread ...

Public Rights in Pennsylvania Waters
by R. Timothy Weston
Temple Law Quarterly Vol. 49, No. 3, Spring, 1976.

This paper is not public > https://heinonline.org/HOL/LandingPage?handle=hein.journals/temple49&div=35&id=&page=

 

[troutbert]

afishinado wrote:

Mike wrote:
See the following paper, which is an instructive review that pertains to the sub-topic of this thread ...

Public Rights in Pennsylvania Waters
by R. Timothy Weston
Temple Law Quarterly Vol. 49, No. 3, Spring, 1976.

This paper is not public > https://heinonline.org/HOL/LandingPage?handle=hein.journals/temple49&div=35&id=&page=

If you have a serious interest in this topic, you must read this paper.

I got a copy of this document from DCNR, in paper form, sometime around 1990, and read it thoroughly.

I don't think DCNR distributes this anymore, in either paper or digital form.

But you could probably find the paper in the Temple Law Quarterly at many university libraries in PA and make a photocopy.

If you contact Penn State University libraries, they might even scan it for you, and email you a copy in PDF format.

If you contact a university library, give them the exact citation just as Mike posted it above.

 

[afishinado]

troutbert wrote:

afishinado wrote:

Mike wrote:
See the following paper, which is an instructive review that pertains to the sub-topic of this thread ...

Public Rights in Pennsylvania Waters
by R. Timothy Weston
Temple Law Quarterly Vol. 49, No. 3, Spring, 1976.

This paper is not public > https://heinonline.org/HOL/LandingPage?handle=hein.journals/temple49&div=35&id=&page=

If you have a serious interest in this topic, you must read this paper.

I got a copy of this document from DCNR, in paper form, sometime around 1990, and read it thoroughly.

I don't think DCNR distributes this anymore, in either paper or digital form.

But you could probably find the paper in the Temple Law Quarterly at many university libraries in PA and make a photocopy.

If you contact Penn State University libraries, they might even scan it for you, and email you a copy in PDF format.

If you contact a university library, give them the exact citation just as Mike posted it above.

Can you share some insights and info from the paper for all of us interested in the subject?

 

[Dave_W]

afishinado wrote:

Can you share some insights and info from the paper for all of us interested in the subject?

Agree - if we could get a short version/bottom line, or the executive summary from the doc, that would be fine.

However, the original article may be protected by copyright and not available for publication on the net.

We should also start another thread should this be pursued.