Dsr vs homewaters (or the senator vs the beav)

[greenghost]

DSR over HW on LJR , SR, SC, BFC or any.... ASAP! (IMHO)

 

[troutbert]

I like fishing at SGLs and SFs and also FP.

 

[The_Sasquatch]

So the Beav actually has posted areas on Pine and Penns? How is that not being challenged like on the LJ?

 

[PennKev]

The_Sasquatch wrote:
So the Beav actually has posted areas on Pine and Penns? How is that not being challenged like on the LJ?

Got money for a lawyer?

 

[PocketWater]

http://www.hatchmag.com/articles/lets-boot-utah-union/7713164

I actually found this article interesting, and it goes a little bit into this discussion. Utah Republican Rob Bishop whose campaign funds had very large contributions from the oil and gas industry, has allowed the Land and Water Conservation Act, a 50 year old fund, to end. He wants states to have control of all public lands including Federal lands and feels some privatization of those public lands would be good.

Our state government is essentially doing some of the same thing though, with drilling in public lands.

 

[pcray1231]

Yes. Though Pine as in the tributary of Penns, not big Pine. They are in the same situation as the LJR was before the famous court cases.

Penns, Pine, and Elk have all been declared navigable by the state legislature at some point in the past. The bugaboo is that the state declarations themselves don't hold water legally since navigability is a federal thing. But they have been used by the courts as evidence of past navigation, which is the test the courts use to determine federal navigability. There are literally hundreds of these declarations throughout the state, even on smallish streams where splash dams were built to move logs. But only a handful have ever had their day in court, and yes, each stream must be tested in court separately. FWIW, the public has won every single one so far.

PA's interpretation of the federal law is that a stream navigable in part is navigable in it's entirety, and that the public indeed has recreation rights on navigable water. Essentially, we have the very same "wet feet" law that Montana has, we just don't enforce it.

Of course, my complaint over this system is that, right now, theoretically, we don't know "for sure" if it's public or private. Someone has to challenge it, and then a court decides, and then we all find out one way or the other. But the risk here seems to be all on the public's side. i.e. if we assume it's ours, get arrested for trespassing, challenge, and lose, we get prosecuted, in addition to legal fees. If we win, there's still the legal fees. Yet, the landowner doesn't get fined for posting public land for all those years. They have virtually no risk. So they post.

 

[geebee]

The_Sasquatch wrote:
But it's cheaper and only 2.5 miles, man! So therefore, it's different (even though in principle, it's exactly the same freaking thing)

I think there's a big difference in managing the angling pressure and promoting C&R, to stocking oversized pellet pigs encouraging people to catch and kill, isn't there ?

would all the people who fish upstream of the DSR really prefer it if a 1,000 anglers stood in ranks across the DSR, or do they prefer reduced angling pressure in the DSR and better fishing throughout the system ?

In Canada and elsewhere, its very common for the first beat above the tide to be restricted or even NFZ to preserve the fishing along the entire river.

whilst not preferable, I think its better than the alternative - relying on angler restraint, and we know how that works out right ?

 

[PocketWater]

Is Elk Creek public? I had heard there were parts of it that were private and the owners total ****s about it.

 

[pcray1231]

Personally, I'd prefer it to be open. If 1000 anglers stood in ranks, so be it, every one has the same right to be there. We can always choose to go elsewhere. And elsewhere, by the way, would have 1000 less anglers trying to be there.

More water open to the public is always good (at least from the public's perspective). And I have no desire to pay to play, nomatter how good it is.

Canada is fine. That'd be fine here, too. If the authorities choose to restrict fishing in certain areas for protection purposes, that's all fine and good. Like the nursery waters in PA's tribs. The PAFBC cannot keep you from walking along those areas, but they do have complete control over fishing regulations. NY's and Canada's appropriate authorities would have the same power.

It's the private posting of a public resource (fish) that bugs me. It's worse on migratory fish. For instance, in PA's tribs, these fish are stocked and paid for by the public for the public to fish, and yet private entities can and do post up huge portions where they exclude the public for their own monetary gain. They have to go through those areas to get to the areas where the public can fish for them. That's a problem and it wouldn't bother me if we said the heck with it, no more fingerlings....

But I stop short of demanding anything regarding the DSR, though, because I'm not up to date on the laws in NY. As for Beaver in PA, I'll freely criticize situations where, IMO, he's breaking the law. Where he's not, it doesn't mean I like it, but I respect it.

 

[RLeep2]

So far as I am aware, all riparian ownership/access law is state law as are all determinations of navigability or non navigability on a given piece of water. The Feds don't have diddly doodle squat to say about any of it. But if anyone can demonstrate otherwise to me, I'd be interested.

 

[JackM]

RLee:

the source of law on the topic is Federal. But it derives from property law. If an independent state in this union has reserved rights that another has not, their rights may be greater for that. When land was conveyed by the crown or the nascent government, if it failed to address riparian and stream bed rights, it was assumed to exclude exclusive rights to the adjacent landowner. You simply could not take title to a stream bed to the exclusion of others where the stream was capable of being used, in its normal course, as a means of transportation or commerce. Basically, a national right in the people was recognized in the nature of an easement of use.

 

[JackM]

If you are on a navigable river, did you know that you have a right of portage on dry land in order to navigate a low water portion of the river? This is based in necessity and you cannot build a boat too large for the stream, just to gain portage rights. A landowner may have trespass rights if any damage is caused by your portage.

 

[krayfish2]

The two waters I'm aware of where the owner 'owns' the riverbed.... Salmon River and Delaware East Branch. Both are big enough to boat down. I'm pretty sure they'd be deemed navigable. Step on the streambed and you're trespassing. I was unaware that the DSR owned fishing rights though. The only way either will be overturned will be for some brave soul with deep pockets to take it to court and I'm sure the landowner(s) would fight to the death to keep it as 'theirs'.

 

[JackM]

The two waters I'm aware of where the owner 'owns' the riverbed.... Salmon River and Delaware East Branch. Both are big enough to boat down. I'm pretty sure they'd be deemed navigable. Step on the streambed and you're trespassing.

Unpossible legally.

 

[pcray1231]

Both are big enough to boat down. I'm pretty sure they'd be deemed navigable.

They probably are navigable, but whether or not you can float a canoe has pretty much nothing to do with it.

It's about commerce. Meaning, barges. And while the test is whether it is capable of, since water commerce isn't as common as it used to be, the courts have generally been interested in whether there is evidence that it WAS used for commerce. Way back then water was the primary means of transporting stuff, and it's why many towns are on waterways. If it has a town on it, it's likely navigable.

So if you have some historical documents showing barges going up and down. Or a towpath/canal type system. Maybe an old grist mill which transported it's product down to town by boat. That's the kind of thing they look for.

In the case of Penns, I think it'd be pretty open and shut. Many of it's landmarks were named by those who used it for "commerce". Butter Rocks, for instance, is where a barge of butter crashed. The Spinning Wheel was an area for barges to avoid or else they'd get caught there, with their water wheel spinning but not moving the boat! Coburn was a jumping off point through the mountains, a port, with Millheim being the rest stop on the other end.

Some history can be found here:
http://www.unioncountyhistoricalsociety.org/OnceUpon/Article24.pdf

Yet, Donny Beaver has his posted signs up there anyway, without challenge.

As for the Salmon River, again, that's in NY. While this is based on Federal Law, it's pretty much up to the states on how they determine navigability, and what rights are attached.

The East Branch, well, I'd guess based on location and size that yes, it's navigable, and that you'd be able to find plenty of evidence in support of that. But you'd have to put in some research time most likely.

 

[sandfly]

what about the club property's on the willowemoc and paradise section of the broadheads. I used to fish the paradise as a guest with members. don't forget the club property on the Tobyhanna, they all charge a membership and keep others out. it happens all over. not much can be done.

 

[krayfish2]

You are comparing navigable to non-navigable. The lower section of the Willowemoc may have a history as a logging river but thats not the section your speaking of.

There are private clubs all over that charge memberships and stock pellet pigs. Most are on smaller waters like the one on the upper Lackawaxen, Spruce, Conewago, etc, etc.

 

[Biggie]

I fished the DSR property when it was free. I still pay to fish there. It's the best shot at fish that aren't so line shy that they flee when your shot hits the water. Besides the fee to fish, you get to park your car in a lot worry free that some ***** is not going to break in and steal your stuff. You also get the safety of their "rangers" covering their property in case of an emergency. I had such an emergency a few years ago when my brother was suffering from colon cancer and had a problem down low on the DSR. They were a great help in getting him out of there safely. We were about 1 mile from our car. On the other hand, I think Donnie Beaver's Empire is Evil. The only time you will see one of his employees is if you happen to set foot too far from the water's edge. He personally drove his Escalade down to tell my buddy to get off his log and back in the water. I can afford $75 a day to fish the DSR, but will never be able to pony up $90K plus $10k/yr. to fish HW or Spring Ridge or what ever he calls it today.

 

[pcray1231]

what about the club property's on the willowemoc and paradise section of the broadheads.

Most are on smaller waters like the one on the upper Lackawaxen, Spruce, Conewago, etc, etc.

Willowemoc = not in PA
Brodhead = likely navigable
Paradise Creek = likely navigable
Conewago = likely navigable
Lackawaxen = likely navigable
Spruce = likely not navigable

And remember, a stream navigable in part is navigable in whole, so upper or lower part of the watershed matters not (in PA, anyway)

Map showing the streams the DCNR considers to be navigable.

http://www.gis.dcnr.state.pa.us/maps/index.html?publicstreams=true

Disclaimer/explanation: The DCNR is using past declarations of public highway by the state legislature. Which, as stated before, is not a final determination.

Thus, for the streams on this map/list, there exists a public declaration by the state legislature, that previously, courts have used as strong evidence of navigability. That is no guarantee that they would continue to do so. Nor is it a guarantee, that if a stream is not found on this list, that it lacks any sort of evidence that a court would use to conclude that it's navigable.

The DCNR put this together for gas drilling purposes, but it's the same base law that anglers are interested in. i.e. this is the DCNR's opinion on what it thinks is navigable and thus the streambed owned by the public. The DCNR's opinion is not legally binding.

 

[Tiogadog]

For the penultimate in legal stupidity on this matter may I refer to you to the Jackson River (Virginia) and the King's Grants decision

Article Link