Legal?

[pool_spooker]

I live in PA and fish MD all the time. I see posts of trout reports here and there. I thought the streams were closed until March 31.
Are all C&R areas in PA closed until after Mar 31?

 

[Chaz]

All Special Regulations areas with a couple of exceptions are open all year. Wild trout streams may be fished on a C & R basis if they are not below a stocked section.

 

[JackM]

To be more precise about wild trout streams, they are not closed to fishing between March 1 and opening day unless they are also Approved Trout Waters. If any part of the stream is an ATW, the whole stream is closed (unless under special regs). When a stream is closed, you cannot get near it with a rod. When it is not closed, you can fish it, but you must immediately release any fish caught out-of-season.

 

[Will]

Jack: I would correct that in one respect. As Chaz alludes to, it is the stocked sections and any section downstream of the stocked section that are closed. Sections of Approved trout streams that are upstream of the stocked area are fishable during the closed season as long as the fish are immediately released (i.e. to the same extent as other non-stocked general regs waters).

That said, unless you're very sure of where the stocked sections begin and end, the safest policy is probably to avoid stocked streams in their entirety during the spring closure.

 

[JackM]

Will, I beg to continue to disagree. This is why I was correcting Chaz. "Downstream Areas" is only an applicable concept in deciding what stretches of water are covered by the extended season from Labor Day to end of February of the succeeding year.

I rely on this regulation for this interpretation:

58 Pa. Code § 63.3. Fishing in approved trout waters.
It is unlawful to fish in approved trout waters regulated under § 61.1 (relating to Commonwealth inland waters) from 12:01 a.m. on March 1 to 8 a.m. on the first Saturday after April 11 and in approved trout waters regulated under § 65.12 (relating to Regional Opening Day of Trout Season Program) from 12:01 a.m. on March 1 to 8 a.m. on the first Saturday after March 28. As used in this subpart, the term ‘‘approved trout waters’’ means designated waters that contain significant portions that are open to public fishing and are stocked with trout. A listing of approved trout waters is published in the Commission’s ‘‘Summary of Fishing Regulations and Laws,’’ which is available from the Commission at Post Office Box 67000, Harrisburg, Pennsylvania 17106-7000. The Executive Director or a designee may, from time to time, supplement or modify the list of approved trout waters, and additions or deletions will be published in the Pennsylvania Bulletin.

I can't see why they need the underlined language if only the stocked sections are closed.

Here is the only language of the regs that mentions "downstream areas:"

§ 65.26. Extended trout seasons.
(a) General rule. The extended trout season is in effect from the day after Labor Day until the last day of February of the following year on approved trout waters and all waters downstream of approved trout waters. A creel limit of three trout per day and a minimum size limit of 7 inches applies during this season.

 

[Wulff-Man]

I think Jack's right, as much as I don't like it (the fishing regulation, not that Jack's right 🙂). The PFBC definition for Approved Trout waters is basically "waters that contain significant portions that are open to public fishing and are stocked with trout" (at least that's how they describe them in their publications). To me this would mean that the whole stream is considered "approved water" of which some portions are stocked. But what's kind of odd is that their listing of Approved Waters sometimes just has the name of the stream, and other times gives boundaries. I would think that when they give boundaries, only the section within the boundaries is considered Approved Waters, and so you can fish in other sections that aren't stocked during the closed season.

 

[Wulff-Man]

In thinking about this some more, the statement "waters that contain significant portions that are open to public fishing and are stocked with trout" could also mean that only the stream portions that are stocked are considered Approved Water. It just depends on how you read it. Only the PFBC knows for sure. (I hope)

 

[JackM]

Wulff-Man wrote:
In thinking about this some more, the statement "waters that contain significant portions that are open to public fishing and are stocked with trout" could also mean that only the stream portions that are stocked are considered Approved Water. It just depends on how you read it. Only the PFBC knows for sure. (I hope)

If what you say is correct, why wouldn't the language just be:

"As used in this subpart, the term 'approved trout waters' means waters that are open to public fishing and are stocked with trout."

I'd love to be wrong as well, but I would believe that if the stream is designated as a ATW, you can't fish it from March 1 to Opening Day, whether above or below the stocking boundaries.

By all means fish above them-- Chaz and Will can pitch in to pay any fines you incur. :-D

 

[FarmerDave]

JackM wrote:

If what you say is correct, why wouldn't the language just be: ...

Because you didn't write it???

I think you guys are reading way more into this than you need to.

"As used in this subpart, the term ‘‘approved trout waters’’ means designated waters that contain significant portions that are open to public fishing [color=CC0000]and[/color] are stocked with trout."

That statement is simply a definition of "approved trout waters." You don't have to disect the definition when they actually provide a list of these waters.

Go to the "approved trout waters" section.

http://sites.state.pa.us/PA_Exec/Fish_Boat/fishpub/summary/troutwaters.html

I also believe you are misreading that statement I quoted.

It is a compound sentence where each half should be able to stand on it's own. In other words, the part where is says "significant portions" only refers to the first part of that compound sentence (are open to public fishing). they don't stock streams that do not fit that description. The second part is because they don't stock all waters that have significant portions open to public fishing. To me, that explains why some portions of streams are not "approved trout waters." Would I have written it differently? 0f course.

Switch the two halves of that sentence around and you will see what I mean.

"As used in this subpart, the term ‘‘approved trout waters’’ means designated waters that are stocked with trout [color=CC0000]and[/color] contain significant portions that are open to public fishing."

OK, it looks even worse that way, but you can see what I mean. The fishing regs are full of misleading statements. However, in a correctly written compound statement, both halves should be able to stand on their own. For the engineers out there, read it as two sentences with a logic AND.

I'm no lawyer, but I'll bet my paycheck against yours that if you are fishing for suckers or catfish in Tionesta Creek above the dam and below the "approved" waters, and not harvesting any fish out of season, you won't get ticketed. And if you do, it won't hold up in court as long as you don't do something else stupid like get into a big argument with the WCO.

Bottome line: If an entire stream is listed, then you can't fish it right now unless it is one of the excetions. If boundaries are listed, then you can't fish within the boundaries and can fish outside those boundaries.

 

[muskylund1]

Though I no longer live in PA, I have always understood the PA regulations to mean that fishing for trout in waters that are not Approved Trout Waters at any time other than during the open season is not lawful, even if trout are immediately released. This is probably hard to enforce on streams where other gamefish species are present, however, fishing a small unstocked native streams (where no other game fish are likely to be found) with trout tackle in Fall, Winter or early Spring would seem to be a clear violation.

I know that many in the flyfishing community including a past PA TU Vice President who told me so feel that it is lawful or at least a gray area, but as many times as I have read the regulations book I just cannot understand that viewpoint. I also figured that the extended trout season gave everyone the opportunity to catch stocked trout on a "nearly" year basis, but the most likely reason for closing the un-stocked streams during the rest of the year was to protect stream bred fish, redds and eggs during the spawning season.

Am I way off here? I always confined my Fall, Winter or Early Spring trips in PA to either to Approved Trout Waters if in the extended season or to Special Regs (open all year) areas during the closed season. I used to read the Pennsylvania Angler magazine, which is published by the PA Fish Commission, for over 20 years and can't recall a single instance in which fishing unstocked streams during the closed or extended season was sanctioned or mentioned as a legal fishing option.

Tom

 

[JackM]

"I'm no lawyer, but I'll bet my paycheck against yours...."

That doesn't seem quite fair, does it? 😛

I have mentioned before when this was discussed that where the ATW is "designated" as a section with upper and lower boundaries, you might have a better argument to fish outside those boundaries, but I wouldn't want to take this chance the way the regs read. If you are willing to chance it, be my guest. Just hold onto the paycheck you want to bet me because you may need it for the fine.

 

[JackM]

tom, the regulations and the PFBC commentary that has been made public establishes pretty clearly that ONLY ATW are "closed to fishing" from March 1 to opening day and ONLY ATW's and downstream areas are involved in the "extended season" from Labor Day to the end of February. This leaves other areas "open to fishing." Fish caught out of season must be released immediately unharmed. I do agree that fishing a creek that has no other fish besides out of season fish species creates a risk of violation, but I don't think the risk is great. Just take the 5th-- there are chubs everywhere and they can be quite sporting.

 

[tomgamber]

Frankly. I'm more likely to take the lawyers interpretation. But even after having this discussion, in the past, on here and already knowing JackM's point of view I went for a simpler answer. I asked the guy who would have to write me the citation. Actually I asked two. And both PAFBC Conservation officers told me the same thing.


It is legal for me to say, find wild brookie stream, in which NO part is an ATW and catch and release trout all year. And general season limits apply between the Opening day and Labor Day. Between the day after labor day and opening day it is NO kill, catch and release and as they say...immediately release any trout they catch unharmed to the waters from which taken. That is what the FBC told me the rules are to my face. Now, he also added that the wording that involves "anglers must immediately release any trout they catch unharmed to the waters from which taken" is there so that "at their discretion" they could still cite someone who they believe is doing harm to the fish or moving these fish to another body of water. he explaned that the latter would be doing them harm which is why they have the "to the waters from which taken" part in there. The other example he used was... on every strike, flinging the little brookies right out of the water over the fisherman's shoulder and onto the bank behind him.

If you are still not convinced, this page on the website kind of seals it for me:

http://tinyurl.com/3a7yzt

Please not the "further explanation" at the bottom of the page.

What I have never asked them, and I guess I will if I remember next time, Is... if you can fish upstream of an approved trout stream during the closed season, with the idea that the section you are fishing is listed as something other than an approved trout stream.

 

[Will]

As a matter of construing the written reg, I think FarmerDave has it correct - the reference to a significant portion being open to the public is just a criterion (and a well known one) for a sectino of stream being designated an ATW. And having independently gone looking for the FAQ and finding the same URL as Tom, I am now certain. Look at the bottom where it reads:

"* Those with a particular interest in regulatory interpretation may want a further explanation. Here it is: The season for taking trout from waters other than approved trout waters extends from opening day in April to midnight on Labor Day. During other times of the year, there is no season for trout on waters other than approved trout waters, certain special regulation waters and private waters that apply for and are made subject to the extended trout season under PFBC regulations (58 Pa. Code 65.26). The regulations establishing seasons, sizes and creel limits state that a fish taken out of season from waters where other fishing is lawful is not considered a violation if the fish is "immediately returned unharmed to the water from which it was taken." Thus, it is not a per se violation to catch a trout out of season on Class A wild trout waters as long strict catch-and-release fishing is practiced."

As Dave notes, ATWs are clearly defined with boundaries, and the regs also clearly state that ATWs and areas downstream of them are closed during the spring stocking season. The rest of the state's waters are covered under the analysis quoted above - the season is from Opening Day to Labor Day as per the general trout season regulation, and catching trout "out of season" on those waters is lawful if you immediately release them unharmed.

That said, I would be very careful about encroaching near to ATWs even from upstream.

 

[tomgamber]

I wonder if the fish movement study posted elsewhere might come to play in that eventually.

 

[Fishidiot]

I will admit to being weary of this perennial debate. The PFBC needs to clarity this. I have posted on this topic before that a possible reason they won't do it is to not encourage fishermen to hit wild streams during the off season. Whatever the case - this issue should still be resolved. I will continue to fish non-stocked, ClassA or Wilderness streams on a C&R basis during the off season

 

[dryflyguy]

I remember having this discussion last year at this time - I have in the past fished the class A section of big fishing creek before opening day- between the trophy trout area by Lamar and the ATW area by Mill Hall. This would be upstream of the ATW.
I also talked to a WCO about this specific area, and he told me it was fine, as long as all fish were released unharmed.
But all the talk last year did give me some reserve about it, and I didn't fish there until after opening day.

 

[Buggy]

I will be camping at Greenwood Furnace State Park for the April 14th opener. The dam at the park is ATW, but East Branch Standing Stone Creek below the dam is Class A and unstocked. I wanted to set up camp early on April 13th to fish the stream below the dam.

Since the Class A section is below the dam, would this be considered downstream from an Approved Trout Water?

 

[tomgamber]

Buggy wrote:

Since the Class A section is below the dam, would this be considered downstream from an Approved Trout Water?

Uh, yeah...!?

 

[JackM]

Whatever might be the disagreement in interpreting whether the terms "Approved Trout Water" apply only to the section defined in the listing of ATWs (in the less common situations where a specific section is defined) or whether it applies to the entire stream, the "downstream area" concept has nothing whatsoever to do with defining closed waters in the March 1 to Opening Day period. Once again, with all due respect, the "downstream" concept is only relevant to determining the stream areas that are covered by the "Extended Season" (Labor Day - end of February) on ATW stream sections outside of defined sections.