Little J Case goes to bed! Yeah!

[Chaz]

For those of you who have been following the case of Pennsylvania's suit against parties who were claiming ownership of what the Commonwealth has established is a navigable river:


As you may recall, last year around this time the Huntingdon County Court decided strongly in favor of the Commonwealth plaintiffs. Judge Kurtz ruled that the Little Juniata River is navigable-in-fact, and therefore the Commonwealth is the owner of the river bed in trust for the benefit of the public. Consequently, the defendants Donny Beaver, Connie Espy, Spring Ridge Club, Paradise Outfitters, et al., lacked any basis for excluding the public from fishing in these waters, and the Court issued an injunction to that effect.



Since that time, Mr. Beaver and his co-defendants appealed the matter to the PA Commonwealth Court. They filed their brief in November 2007. In January, th! e Commo nwealth filed its comprehensive brief in response. On the day this week that Beaver et al. were to file their reply brief, they informed the other parties that they were instead withdrawing their appeal. Thus ends this saga, and the Commonwealth remains victorious.



This was a cooperative effort among the PA Dept. of Environmental Protection, the Fish & Boat Commission, and the Dept. of Conservation & Natural Resources. Also significantly involved for many years has been Allan Bright, owner of Spruce Creek Outfitters, as well as some stellar witnesses on behalf of the Commonwealth, most notably a professional historian who provided remarkable insight to a fascinating time in our nation's history.

 

[littlejuniata]

Great news Chaz, I am sure all REAL fly fishermen will be delighted!! Now if we can just get a name change for Beaver Stadium, maybe the guy will move. Or am I just being mean?

 

[dryflyguy]

Yes, so nice to finally see this completely settled now.
This saga started for me back in spring 1990, when I drove 2 and a half hours to fish the Espy farm, - only to find it posted!
Rumor had it then, that you could still fish it, as long as you stayed within the high water mark, but I didn't want to push my luck. I sure never thought it would take 17 years to prove it!

 

[littlejuniata]

Man that would have been a bummer, you should try the lower end, bigger fish, but the Espy stretch is beautiful,

 

[dryflyguy]

Even before the Espy Farm stretch first got posted, I was hiking and fishing down into the gorge.
Then I started fishing down by Baree and below.
I do think you're right - even with all the pellet fed hogs in the Espy stretch now, I'll still take the lower river anyday.

 

[rrt]

Chaz-
Are you certain? If so, then this is wonderful news. Now, if we could only figure out some way to prevent the evil empire from getting more water and/or to get the evil empire to open its presently posted water to public fishing. Anyhow, for the LJR, this is great news if you are sure.

 

[Chaz]

I got the information from a reliable source

 

[Squaretail]

http://www.post-gazette.com/pg/08039/855825-85.stm

 

[littlejuniata]

I would really like to meet that lady, too bad she isn't running for President. (Deb Wiesberg) Thanks for the link

 

[Rolf]

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Member #15927
1666 posts
Southeastern Pa

Re: Little Juniata case comes to a close (Buzzard) 1:36 PM 2/7/2008


Thanks for sharing the good news. I had the pleasure to meet Mr. Bright at the Somerset Show a couple of weeks ago and made it a point to thank him for his efforts. Unfortunately, Mr. Beaver has taken his act to other locations. I have been told he has an operation is in the Erie area and I know he has opened up an exclusive club membership to an area on Fishing Creek in Benton, Pa., (Logan Outfitters). I understand the Becks decided to part with some of their private water.

Rolf

"Discontinuing the appeal keeps Judge Kurtz's decision legally binding only on the Little Juniata, according to John D. Echeverria, executive director of the Georgetown Environmental Law and Policy Institute at Georgetown University.

"Beaver has prevented the case from turning into legal precedent that would have binding effect across the state," he said, "although it nonetheless represents a persuasive authority with regard to other cases."

 

[troutbert]

It is good news.

I'm hoping we can report similar good news on the Spring Creek Canyon land case, sometime in the future.

 

[rrt]

Yes, God love Deborah Weisberg. And, thanks, Chaz, for posting this. It is really good news for this one river.

 

[fly_flinger]

I guess this must have ticked ol' Donny off a little as I got an advertisement this weekend for his new fishing club with water in Colorado.

 

[schrec]

Definitely great for the Little J but there always seems to be a "but" with Beaver isn't there? So the "but" is because Beaver withdrew the appeal, he also stopped any chance that this case may be used as a legal precedent in other similar cases? Say perhaps in other riparian land he's buying around the state?

 

[Rolf]

You got it schrec! That's why I'm not exactly jumping up and down in "complete" joy right now. As I said, he has already moved into Columbia County, (Logan Outfitters). By not challenging, he has left the door open for other opportunities.

Rolf

 

[JackM]

I think it still merits being happy.

The Little J case turned specifically on the facts and history of the Little J. Very Little, if any, new "law" was made by the case, so whether it would be binding authority in other cases at the trial court level is a practical irrelevancy. Any other case brought under the navigability theory of the public trust doctrine will also turn on its peculiar facts and history.

The important upshot of the withdrawal of the appeal is that the determination of the right of the public to wade anywhere within the river known as The Little Juniata River cannot be challenged.

In addition, for those cheering on Mr. Bright, the fact of navigability, which is an important aspect of his civil lawsuit should be foreclosed from further litigation. With any luck, they will settle soon and the price of splitshots will hold steady for a few years.

 

[Rolf]

Jack it took you long enough damn it. I've been waiting to hear you chime in on this. I am an IDIOT when it comes to law. That said, my fear is, every chaallenge posed by Mr. Beaver will require a court action and in the interim, he continues to reap the benifits. Would the burden of proof, (Navigability), fall on Mr. Beaver or the state? Please e-mail me when you have the chance, I have something that might be of interest. rjacobsen13@comcast.net

Thanks,
Rolf

 

[JackM]

Rolf, I sent you an e-mail.

On the point, I think it is a safe bet that Mr. Beaver's operations will continue to acquire land along streams and post them against trespass. Even if the stream/river is arguably "navigable," the posting will discourage 95% of the anglers from encroachment.

I'm not sure who has the burden of proof, but it is usually the plaintiff. That said, if "navigability" is raised as an "affirmative defense," then the defendant could have the burden. I'll leave the in depth legal research to the lawyers earning a fee on the case.

 

[David]

Weren't there threats of physical injury to people who walked down from spruce creek or up from Barree even though it was legal? Is that still a concern for this stretch?

 

[littlejuniata]

I have heard Spruce was navigable, that would be fun. There were forges and mills along the stream I believe. Jack have some fun, we will elect you President. There were also mills along Penns Creek and probably Yellow Creek.