Frankstown Branch - Serious Issue With Landowner & Access

[RLeep2]

>>I'll tell you one root cause of these issues. Back in the day both the PF&B and local sportsman club stocked a ton of trout. Fisherman were happy and they stayed within the public access points. They avoided private property and there was no issue with trespassing. Now the PF&B/local clubs doesn't stock as many fish and when the areas are fished out the 'entitlement' fisherman seek other areas to wreck havoc on the fish population which includes trespassing on private land.>>

IMO, this has about as much to do with the issue under discussion as the improvements in the quality of laundry detergent over the last 30 years...

>>As far as changes in society; back-in-the-day just about all rural land was open to hikers, hunters and fishermen. I grew up in a rural area of PA and if one could pull safely off the road to park, access to most land, stream or river was open.

Today with urban sprawl and many middle class people able to afford second homes, rural areas have been taken over by urbanites. Many more urban people have a much different attitude and perspective than those that grew up in rural areas. The result is the loss of access to our woods and waters by posting their land.

I can drive around and find hundreds of places where access was open for hunting or fishing or hiking a decade or decades ago and is now posted. I don't dispute these landowners have every right to post their land. That's just the way it is today.>>

This on the other hand is absolutely spot on..

 

[The_Sasquatch]

^Right? So there is less of a put-and-take fishery today than there was "back in the day", so people trespass now?

 

[MBWCC]

pcray1231 wrote:
No, I'm not. The definition of navagability is rooted in federal law, not state. If it is navigable, though, it's the state that owns it. It's also typically state level courts which determine it.

Here is a short primer from PA DCNR for those who wish to sort out PA state's "navigable" designation on their own. The section regarding "NAVIGABILITY IN FACT" is the important read:

http://www.dcnr.state.pa.us/cs/groups/public/documents/document/dcnr_20028883.pdf .

One will quickly note in reading the DCNR document that pcray1231's understanding of PA state "navigable" designation is critically flawed.

 

[Nymph-wristed]

Blue-lining changed when the PFBC started making lists and interactive maps more available, in my opinion. All the web sites and even a certain recent book that shared spots that should have stayed "secret" just like the stream in question didn't help. Information age overload, yo.

Instead of word of mouth, knocking on doors, and on the ground recon, anyone with a smartphone and a car could find a class A or "wilderness" stream that may or may not be private. Intentional or not, those lists and maps gave a lot of guys unintentional endorsements to fish posted land. I have seen a lot more signs go up because a creek that rarely had prospectors now had many hoping for a "secret" gem. Many don't care about the signs because they are young and have nothing to lose. Not defending them, but it's hard to drive two hours to a spot that is supposed to be open to fishing and find it posted. Harder still to accept that the landowner allowed a survey of the fish population by a government agency with no discussion of fishing access. More complicated and subtle still that actual surveys may not even be done in order to classify a creek and put it on an interactive map.

It is self-serving in some ways to the new direction, the post Operation Future era that has doubled down on that philosophy. The PFBC says, Look how many miles of wild streams there are---stocking is a thing of the past. But how many miles of stream that are not stocked will remain open in the future if the agency is "spot burning" in an effort to disseminate information while taking no ownership of the access question. A catch 22?

 

[lycoflyfisher]

Please share an example of a stream that has recently been listed as a wild trout stream without being surveyed? Not sure how that's possible and I have been involved with the unassessed waters program from several angles.

 

[troutbert]

The_Sasquatch wrote:
^Right? So there is less of a put-and-take fishery today than there was "back in the day", so people trespass now?

The section of stream in question is stocked now, and has been stocked for many years.

So I don't see how stocking, or ending stocking, could be claimed as a factor.

Of course it's likely to work the other way. The posting will probably result in reducing the number of trout stocked in this section.

 

[The_Sasquatch]

troutbert wrote:

The_Sasquatch wrote:
^Right? So there is less of a put-and-take fishery today than there was "back in the day", so people trespass now?

The section of stream in question is stocked now, and has been stocked for many years.

So I don't see how stocking, or ending stocking, could be claimed as a factor.

Of course it's likely to work the other way. The posting will probably result in reducing the number of trout stocked in this section.

Agreed. Why should license and stamp buyers be denied the right to fish for the trout they pay for? If these land owners want it posted, stop the stocking.

 

[fisherboy3]

Wow. I was literally going to post an access question today as well. I fished the Brodhead in the Poconos today and was hassled by 2 different land owners. One was right by forever green preserve. Apparently who ever bought the Penn Hills resort does not want people fishing the brodhead that runs through their property. I was fishing a run on the preserve side and a man approached the far bank and sald you know you're trespassing right? I told him no I did not, I did not realize Penn Hills owns both side of the brodhead there. But thays where I questioned it. The brodhead is deemed navigable watersays by the DNCR. So what can i do about this? This is the first time anyone has ever been hassled by penn hills owner from fishing on the forevergreen side, at least from what Ive been told.


Another incident today. Between the train bridge and the cherry lane road bridge a guy owns the property. Last year he said I could fish on "his" property. But its navigable waters, so where I would fish isnt actually "his". I heard him on his quad today so I went over and his son was standing there. Immediately the kid said this is private property and shoed me away with his hand. I said I want to ask your dad something. Apparently since I did not knock on his door this year to ask if I could fish, its private. This drives me absolutely crazy. I know its deemed navigable but what good does that even do? The land owners think they own the water. By law the landowner cannot keep a fisherman from fishing through his property if the stream is deemed navigable. I should be able to wade up to the high water mark. Such bullshit. What can I do about this? Anything?

 

[PennKev]

fisherboy3 wrote:
Such bullshit. What can I do about this? Anything?

Play the navigable water card and tell them you'll see them in court.

Then out-lawyer them or hope they don't call your bluff?

 

[fisherboy3]

Lol or i can just show them the list...i took a screenshot of the navigable water-landowner laws. And the list of navigable water ways by the dncr. Im bringing that up if I ever run into them again. The guy between the two bridges i will stay away from. But i know a ton of fisherman who fish where penn hills used to be. The resort or whats left of it isnt even on the side I was on and the guy still chased us out.

 

[PennKev]

fisherboy3 wrote:
Lol or i can just show them the list...i took a screenshot of the navigable water-landowner laws. And the list of navigable water ways by the dncr. Im bringing that up if I ever run into them again. The guy between the two bridges i will stay away from. But i know a ton of fisherman who fish where penn hills used to be. The resort or whats left of it isnt even on the side I was on and the guy still chased us out.

Yeah, but pcray is going to pcray you and tell you how that list is worthless...

 

[troutbert]

fisherboy3 wrote:
Wow. I was literally going to post an access question today as well. I fished the Brodhead in the Poconos today and was hassled by 2 different land owners. One was right by forever green preserve. Apparently who ever bought the Penn Hills resort does not want people fishing the brodhead that runs through their property. I was fishing a run on the preserve side and a man approached the far bank and sald you know you're trespassing right? I told him no I did not, I did not realize Penn Hills owns both side of the brodhead there. But thays where I questioned it. The brodhead is deemed navigable watersays by the DNCR. So what can i do about this? This is the first time anyone has ever been hassled by penn hills owner from fishing on the forevergreen side, at least from what Ive been told.

If the Forever Green Preserve owns the land on the opposite bank, then it's very likely that the landowner on the opposite side has no right to tell anyone to leave the stream.

And that's aside from any navigable waters issues. I'd report it to PFBC law enforcement, and to whoever owns and manages the Forever Green Preserve (the county park system?)

 

[Nymph-wristed]

The guy between the bridges wants his own stocked beach, apparently. He took out the riparian buffer right to the sandy beach... The contractors soil buffer is in disrepair and holding back nothing. Call Stroud township code enforcement.

I see him fishing there with his kids. I hope he is not busting chops about climbing up the rr tracks on "his property". In high water, it's the only way around...

 

[Nymph-wristed]

lycoflyfisher wrote:
Please share an example of a stream that has recently been listed as a wild trout stream without being surveyed? Not sure how that's possible and I have been involved with the unassessed waters program from several angles.

Spring Mill River in Montgomery County.

 

[Nymph-wristed]

lycoflyfisher wrote:
Please share an example of a stream that has recently been listed as a wild trout stream without being surveyed? Not sure how that's possible and I have been involved with the unassessed waters program from several angles.

There is also this criterion that is used a lot, I believe:

4. Tributary linkages. – Tributaries to wild trout streams are classified as wild trout streams
for their function as habitat for segments of wild trout populations, including nurseries
and refuges, and in sustaining water quality necessary for wild trout.

 

[PALongbow]

You better have your facts straight because there could be a lot to loose if these things end up in court. I see a lot of random information being talked about here and bad advise being offered. Granted any court rulings could go either way based on historical and factual information but its like playing poker where someone wins and the rest loose. There is a lot to loose on both sides of the navigability argument. There are historical facts that our agencies were not even aware that existed in clear text that are now under review that point directly to land ownership.

 

[Swattie87]

This irritates me. The landowners v. the trespassers. As is so often the case, neither is entirely pure here, and the truth and most reasonable course lies in the middle.

And yeah, the whole navigability thing irritates me too. FWIW, I think pcray’s stance, though unpopular round these parts, is largely right as things sit now. The DCNR is taking a risk IMO publishing that list from a liability standpoint. What if a “trespasser”, citing that list as their source, got into an altercation with a landowner that turned violent? I get where they’re coming from and their line of reasoning behind the belief that these streams pass the “navigability” test, and I think ultimately they’d probably be proven right, but I don’t think they’re on solid footing legally right now. Granted, neither are the landowners who are posting those streams necessarily.


Citing from the DCNR document referenced in Post #43:


"Navigability in Fact
If a river is used, or is susceptible of being used, in its ordinary condition, as a highway for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water, it is navigable in fact. A public highway declaration, often passed to promote commerce and the unobstructed movement of goods on waterways, is compelling evidence of navigability in fact. In addition, historical information from 18th and 19th century America that shows there was commerce on any segment of a particular waterway is substantial evidence of navigability in fact. Furthermore, proof that the waterway is susceptible of being used as a highway for commerce in its present-day condition may be evidence of navigability in fact.

Once a stream is determined to be navigable in fact, it is considered navigable throughout its entire length, from the headwaters to the mouth. Once a river or stream meets the navigability in fact test at any point in history, it remains navigable as a matter of law up to the present time regardless of its continued use for commerce; the Commonwealth is not divested of title by disuse of a waterway for commerce."


The first paragraph is essentially laying out the conditions and historical facts that would be used as evidence in determining whether a stream in navigable in fact. The second paragraph states that ONCE it is determined to be navigable in fact (at any point in time), it is considered navigable along its entire length for an indefinite period of time into the future. To pcray’s point, what is the venue for determining whether a waterway is navigable in fact? – The courts on a case by case basis (think the Little J case). Not a list of streams from the DCNR stating their opinion…hence why I’m surprised the DCNR published that list from a liability perspective.

Don’t get me wrong, I’d love for all those streams to be considered navigable, and if taken to court, I think they likely would be found as such based on the above. But even if they were, I don’t think it would change how and where I choose to fish. I’ll fish on public land, or private land with landowner permission only at this point – Either the landowner publicly (through specific signage or other information available to the public) allows access, or I’ve personally asked them. Regardless of navigability or posting, I won’t fish on private land where I’m not certain I have permission to be there anymore. Heck, I’ve been kicked off of unposted land before! Just not worth the hassle and worry when I want to get a day away fishing. I’ll fish where I know I have permission to be there.

 

[afishinado]

Here is the map of waterways presumed navigable by the DCNR. You can click to the table to see it as a list.

A list of navigable waters that have been proven in court to be navigable would be of greater help. Read the last section titled "Access and Use Constraints"

There is a presumption that the Commonwealth owns the beds and the underlying subsurface of all navigable waters between the ordinary low water marks. Owners of land along the banks of navigable waters do not have exclusive rights in those waters; that right is vested in the Commonwealth for the benefit of the public. The lands that are owned by the Commonwealth must be conserved and maintained for the benefit of all of the citizens of Pennsylvania. Commonwealth ownership of submerged lands is based upon navigability. The waterways identified herein as having publicly-owned streambeds have been compiled by the Commonwealth over time from various sources. Identification is based upon information believed to be reliable and persuasive evidence of such ownership. The identification of a waterway as having a publicly-owned streambeds herein is not intended to be a final determination that the waterway is navigable under state or federal law. Moreover, other waterways not identified herein may be navigable under state or federal law, in which case their streambeds would also be publicly-owned. The Commonwealth reserves the right to add or remove waterways identified as having publicly-owned streambeds as additional information becomes available.

Access and Use Constraints

This data is intended for demonstration, education, planning, and monitoring purposes only. The user is advised not to use this dataset beyond its stated accuracy. To do so may yield unusual, undesirable, or incorrect results. Users of this dataset shall save the Commonwealth harmless from any suits, claims, or actions arising out of the use of or any defect in the data files or accompanying documentation. The Commonwealth excludes any and all implied warranties and makes no warranty or representation with respect to the data files or accompanying documentation, including quality, performance, merchantability, or fitness for a particular purpose. These data files and documentation are provided as is and the user assumes the entire risk as to their quality and performance. This data was based on the best available information at the time and may contain errors or omissions.

 

[JakesLeakyWaders]

Part of the reason I started fly fishing more for bass than trout is because of access and fishing pressure. It seems like every year there is more posted trout water and more of the out of the way alternative spots I used to fish are being found where one would have had the stream to themselves years ago.

I tend to fish more streams now that people don't bother with. I'd rather spend a day on a small stream catching 10" bass or even smaller sunnies and redeyes than dealing with a##holes to catch a couple pale 13" stocked trout.

P.S. Fished the Frankie before. Plenty of W.W. fun in section I fished.

 

[fisherboy3]

Swattie,

None of the land below the forever green preserve is posted. ANYWHERE. And it hasnt been for 3-4 years now. The guys property between the bridge wasnt posted yesterday either. Untill I asked him about fishing there and he told me no, right after i left he put his signs up.