afishinado
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pcray1231
Well-known member
afish, again, the landowner's argument is that the Montana case in 2012 opined by the U.S. federal supreme court negates the 1999 case you are discussing.
I don't know if there's been another case regarding the Lehigh post 2012. The landowner might have a point. I'm not a lawyer and there are a lot of details to decipher. i.e. yes, I think per the latest case the reasoning behind the 1999 decision has probably been overturned. Because the court in 99 Lehigh case said that a stream navigable in part is navigable in whole, and refused to take a piecemeal approach to the question of navigability. The Supreme Court of the U.S. in 2012 said that this approach is not correct, and that streams/rivers must be examined on a section by section basis.
That said, it doesn't make the landowner right on a number of points.
1. Precedence. The 2012 case said was a specific Montana case. If there hasn't been a subsequent case in PA, then I think the 99 decision still holds until further notice. In 99 the decision said that the entire river is navigable. So that's the status quo. I think this landowner may have a legit argument and probably could get the court to re-examine this particular section. And upon review, PA courts would have to abide by the Federal section by section guidelines stemming from the 2012 case. Still, though, a court has to actually review the section in question, and rule in favor of the landowner, before there's any change of the status quo? Has that happened? i.e. has there been any cases post 2012 regarding this section of the Lehigh? ?
2. Even if the landowner succeeded in getting it back in court to re-examine his section, and even if this particular stretch deemed not navigable, and the stream bed given back to the landowner. Even if all that happened, I'm still not sure whether he has the right to post it. I'm not sure. Not saying he does or doesn't. Just that it's not as simple as yes navigable or no navigable. The river as a whole would still be considered navigable, even if that section in particular is not. The 2012 Supreme Court opinion, to my non-legal mind, seems to separate navigability for the sake of determining monetary ownership (must be examined piecemeal for taxes, rent payments, mineral rights, etc) and navigability for the sake of public recreation rights. i.e. that section could be non-navigable and thus privately owned, while still part of a greater, navigable waterway where the entire length grants public rights.
I don't know if there's been another case regarding the Lehigh post 2012. The landowner might have a point. I'm not a lawyer and there are a lot of details to decipher. i.e. yes, I think per the latest case the reasoning behind the 1999 decision has probably been overturned. Because the court in 99 Lehigh case said that a stream navigable in part is navigable in whole, and refused to take a piecemeal approach to the question of navigability. The Supreme Court of the U.S. in 2012 said that this approach is not correct, and that streams/rivers must be examined on a section by section basis.
That said, it doesn't make the landowner right on a number of points.
1. Precedence. The 2012 case said was a specific Montana case. If there hasn't been a subsequent case in PA, then I think the 99 decision still holds until further notice. In 99 the decision said that the entire river is navigable. So that's the status quo. I think this landowner may have a legit argument and probably could get the court to re-examine this particular section. And upon review, PA courts would have to abide by the Federal section by section guidelines stemming from the 2012 case. Still, though, a court has to actually review the section in question, and rule in favor of the landowner, before there's any change of the status quo? Has that happened? i.e. has there been any cases post 2012 regarding this section of the Lehigh? ?
2. Even if the landowner succeeded in getting it back in court to re-examine his section, and even if this particular stretch deemed not navigable, and the stream bed given back to the landowner. Even if all that happened, I'm still not sure whether he has the right to post it. I'm not sure. Not saying he does or doesn't. Just that it's not as simple as yes navigable or no navigable. The river as a whole would still be considered navigable, even if that section in particular is not. The 2012 Supreme Court opinion, to my non-legal mind, seems to separate navigability for the sake of determining monetary ownership (must be examined piecemeal for taxes, rent payments, mineral rights, etc) and navigability for the sake of public recreation rights. i.e. that section could be non-navigable and thus privately owned, while still part of a greater, navigable waterway where the entire length grants public rights.
salmonoid
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OP - this is a good article to read, as it helps set the stage for what you might face. You may be 100% in the right, but be prepared for what might be a lengthy ($$) legal battle to prove it, again. Only you can decide if it is worth the fight, for access to a few fish.
afishinado
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Staff member
THE COURT RULED ON THE CASE THREE YEARS AFTER THAT ARTICLE WAS WRITTEN.
I posted a link to the court ruling and the interpretaion of the law twice.
Here is the info I posted.
Further, a ruling by a separate court does not necessary or automatically void any law or court ruling. Just as the plaintiff had to bring their case to court in 1999, a party now must bring their case to a court to prove the precedent set by another court applies to their case.
Good luck with that. That's why we have so many lawyers running around.
Also, think about it....if a court makes a certain ruling contrary to past rulings than all our laws would change daily / weekly based on the latest rulings.
Long and short, the Lehigh River is designated as a navigable river by court ruling and accessing it to the high water mark is legal. It will remain that way unless and until another court overturns that ruling.
Further, I read the Supreme Court ruling from Montana. The ruling stated only that navigability should be proven for (in this case) the section of river in question.
If I were the attorney, I would look at the Lehigh ruling that states "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." I would argue that the section of the Lehigh in question was deemed navigable in court and thus the ruling brought by the Supreme court is moot.
I posted a link to the court ruling and the interpretaion of the law twice.
Here is the info I posted.
Further, a ruling by a separate court does not necessary or automatically void any law or court ruling. Just as the plaintiff had to bring their case to court in 1999, a party now must bring their case to a court to prove the precedent set by another court applies to their case.
Good luck with that. That's why we have so many lawyers running around.
Also, think about it....if a court makes a certain ruling contrary to past rulings than all our laws would change daily / weekly based on the latest rulings.
Long and short, the Lehigh River is designated as a navigable river by court ruling and accessing it to the high water mark is legal. It will remain that way unless and until another court overturns that ruling.
Further, I read the Supreme Court ruling from Montana. The ruling stated only that navigability should be proven for (in this case) the section of river in question.
If I were the attorney, I would look at the Lehigh ruling that states "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." I would argue that the section of the Lehigh in question was deemed navigable in court and thus the ruling brought by the Supreme court is moot.
afishinado
Moderator
Staff member
Below is an article that appears on the PFBC site giving a detailed history of the case, if you care to read it.
http://www.fishandboat.com/Fish/Documents/publicAccessDocs/lehighhh.pdf
http://www.fishandboat.com/Fish/Documents/publicAccessDocs/lehighhh.pdf
Z
Zak
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This one interesting read!! I am overly eager to hear how the weekend goes. Please please please report back.
foxtrapper1972
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Is there a law against posting land you do not own or running people off public water and pretending you own it?
Yeah npaszko please challenge this idiot and video it and get back with whatever you find out.
Yeah npaszko please challenge this idiot and video it and get back with whatever you find out.
pcray1231
Well-known member
The date on your link is 1999. I was looking for something post 2012, after the U.S. Supreme Court case, as that seems to be what this particular landowner was arguing. To be fair, if there isn't anything post 2012 for PA, then I'd think 1999 holds and it's the landowner that needs something post 2012 to support his side.
Also, the PFBC link doesn't work for me...
afishinado
Moderator
Staff member
Here is what I posted.....lol. Did you read it?
The landowner must take his case to court to change the ruling. What more can I say.....
I just don't want some guys to muddy the waters and carry tales. It's clear that all the hard fought cases in PA opening up our waterways on the Lehigh, Little J and others have not been overturned by any other court.
pcray1231
Well-known member
Ok, so the answer then is that no PA case has occurred since the Supreme Court ruling of 2012. Thus, the letter of the law remains the 99 case unless it is retried. That does make sense. What I was trying to figure out is whether there were any cases post 2012. This landowner reportedly was screaming about new cases, and before I put something out on a public message board, I wanted to make sure there hadn't been subsequent cases. Re-iterating the 1999 decision does not indicate if there has been anything since that.
PA had previously held that a river navigable in part is navigable in whole. Our courts, like Montana's, had always refused to break up rivers piecemeal and make separate rulings for each individual section. They made a ruling on an entire river and that was that. The 2012 Supreme Court ruling essentially says that, for the purposes of streambed ownership, courts must determine individual sections. Thus, there could be an opening for someone out there to go out and challenge the navigability of individual sections of the Lehigh or anywhere else. The river would still be navigable as a whole, but certain spots may not be.
However,
1. If the entire river was previously deemed navigable, then that is the legal status quo. If a landowner believes a certain portion is non-navigable, then he or she must take it to court and get a court to agree. Until that happens, it's ALL navigable.
2. The Supreme Court case also seemed to separate navigability in terms of streambed ownership vs. navigability for the purpose of public recreation. Remember the previous verbiage of PA's cases? If navigable, the public owns the streambed to the LOW water mark. The landowner owns all above that, however, there is a public access easement in place to the high water mark. The way I understand the Supreme Court opinion is that, if the river itself is navigable, but a particular stretch is not, then the landowner does own the entire streambed for the purposes of taxes, improvements, and so forth, but there is still an access easement in favor of the public up to the high water mark.
PA had previously held that a river navigable in part is navigable in whole. Our courts, like Montana's, had always refused to break up rivers piecemeal and make separate rulings for each individual section. They made a ruling on an entire river and that was that. The 2012 Supreme Court ruling essentially says that, for the purposes of streambed ownership, courts must determine individual sections. Thus, there could be an opening for someone out there to go out and challenge the navigability of individual sections of the Lehigh or anywhere else. The river would still be navigable as a whole, but certain spots may not be.
However,
1. If the entire river was previously deemed navigable, then that is the legal status quo. If a landowner believes a certain portion is non-navigable, then he or she must take it to court and get a court to agree. Until that happens, it's ALL navigable.
2. The Supreme Court case also seemed to separate navigability in terms of streambed ownership vs. navigability for the purpose of public recreation. Remember the previous verbiage of PA's cases? If navigable, the public owns the streambed to the LOW water mark. The landowner owns all above that, however, there is a public access easement in place to the high water mark. The way I understand the Supreme Court opinion is that, if the river itself is navigable, but a particular stretch is not, then the landowner does own the entire streambed for the purposes of taxes, improvements, and so forth, but there is still an access easement in favor of the public up to the high water mark.
afishinado
Moderator
Staff member
The last paragraph I posted:
If I were the attorney, I would look at the Lehigh ruling that states "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." I would argue that the section of the Lehigh in question was deemed navigable in court and thus the ruling brought by the Supreme court is moot.
I followed the case while it happened at the time, since I grew up in the area and considered it some of my home waters for fishing and realized the ruling would be very important to the future of fishing going forward.
Further, if you read the article I posted from the PFBC site which covers the case in great detail; the parties actually visited the site and ruled on the navigability and history of commercial viability of the river at that point. This renders the Supreme Court ruling moot.
I really do hate to hear guys say they read it on the Internet and PAFF that a Supreme Court ruling has closed off waterways to the public.
Again, there is no new court ruling that gives landowners the right to close off public waters.
If I were the attorney, I would look at the Lehigh ruling that states "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." I would argue that the section of the Lehigh in question was deemed navigable in court and thus the ruling brought by the Supreme court is moot.
I followed the case while it happened at the time, since I grew up in the area and considered it some of my home waters for fishing and realized the ruling would be very important to the future of fishing going forward.
Further, if you read the article I posted from the PFBC site which covers the case in great detail; the parties actually visited the site and ruled on the navigability and history of commercial viability of the river at that point. This renders the Supreme Court ruling moot.
I really do hate to hear guys say they read it on the Internet and PAFF that a Supreme Court ruling has closed off waterways to the public.
Again, there is no new court ruling that gives landowners the right to close off public waters.
T
troutbert
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That's right.
The law on the Lehigh is absolutely clear. The 1999 court case made it clear.
Anglers have a right of access between the mean high water marks.
That's it.
I caution all readers to be alert, on the lookout, for further attempts to "muddy the waters" on this issue.
Swattie87
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Great Falls of the Lehigh Jam - 2017? Who's in?
salmo
Well-known member
I'm no expert, but there may be an issue with sliding down the concrete abutments of a bridge. The question is what section of the bridge is the right of way open to the public? The right of way may only be the regularly traveled road surface and not the remainder of the bridge structure which is built on private land. These issues remain clear as mud. Landowners will say it is public when it comes to maintaining the property and private when it comes to access. That's why I hate to fish in the Poconos. Just too many posted signs. But those posted signs are as contagious as the flu. They keep on spreading. Some of the blame has to be on irresponsible fisherman who are loud, leave trash, and park all over the place forcing landowners to post streams and access. Every story has at least two sides.
Swattie87
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Bingo. While I fully respect landownership, and the landowner's right to post or not post, or whatever on their land, ^that mentality bugs the snot out of me. Can’t have your cake and eat it too on that one. If you want to argue that the bridge abutments, guardrails, gravel shoulders, etc are your private property then you should get to pay to maintain them. Since private landowners don’t, and tax dollars do, those are owned by the public. I'm with the OP, you SHOULD be allowed to slide your butt on that concrete to your heart's content. Whether the courts would see it that way is another matter.
M
moon1284
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I hate seeing posted signs anywhere. The first thought that goes through my head is that the landowner is a jerk.
Swattie87
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I don't like em' either from my own selfish fishing perspective, but it most cases that’s probably just not true. The landowner paid for the land, pays the taxes on it, and pays to maintain it. It should be theirs to do as they wish. Maybe the jerk was the fisherman who turfed the guy’s lawn after getting their 2WD 89 Danger Ranger stuck in the mud on opening day after spilling out a 30 pack of Busch Light empties. Jerks on both sides.
This thread is about landowners who illegally attempt to extend their boundaries to land and/or rights of way that aren’t theirs. That’s a different deal. They are jerks.
foxtrapper1972
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I intend to slide my butt on concrete to my hearts content from here on out.
laurelrun
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I suppose I'm a jerk.
My ground is posted. It didn't stop someone from stealing a game camera from the middle of a ten acre wood lot this archery season. Or of (allegedly) the same guy showing up on my other game cameras taking a cross bow for a walk in the woods well inside the posted property line. Or of the same guy tracking a wounded deer onto my property while I was out in the middle of the night looking for a buck I shot.
I'm a jerk because other people are jerks. A sign doesn't prevent that but it is one of only a few mechanisms land owners have to control access to their private property. And it gives law enforcement some leverage to prosecute without the standard excuse of ignorance used by jerks who trespass.
My ground is posted. It didn't stop someone from stealing a game camera from the middle of a ten acre wood lot this archery season. Or of (allegedly) the same guy showing up on my other game cameras taking a cross bow for a walk in the woods well inside the posted property line. Or of the same guy tracking a wounded deer onto my property while I was out in the middle of the night looking for a buck I shot.
I'm a jerk because other people are jerks. A sign doesn't prevent that but it is one of only a few mechanisms land owners have to control access to their private property. And it gives law enforcement some leverage to prosecute without the standard excuse of ignorance used by jerks who trespass.
