Newly Posted Section of Elk Creek

[turkey]

^this

Dave and Pat, you guys should exchange numbers and talk it out ;-)

 

[inthedrift]

StarvinMarvin wrote:
All these ideas, are absolutely idiotic. If a water is nursery, it has to be used that way, so theres a no go on that one. .

I don't think the "nursery water" reg fits this situation, but I don't think your statement is the truth. Here's the reg:

67.1. Nursery waters and exhibition areas.
(a) The Executive Director, with the approval of the Commission, may designate waters as nursery waters or exhibition areas to which the penalties of section 2106 of the code (relating to fishing in hatchery or nursery waters) applies. The designation of waters as nursery waters or exhibition areas shall be effective upon posting of the waters after publication of a notice that the waters have been so designated in the Pennsylvania Bulletin.

Nowhere does it say that the water has to be used for these purposes. I haven't read the entire section of the Code that deals with this, so there could be something else hiding in there, but I just wanted to point that out. That being said, I don't think that's the answer.

I think there would need to be a specific regulation to address this situation. The bottom line is that this is a fishery that wouldn't sustain itself (as we know it) without the public funds. Does anybody really think that there would be such a high demand for this fishery if the stockings/runs were cut by, say 60%? I don't think so.

I don't support cutting off a landowner's access to use the resources on his own land, whether they are paid for by the public or not. It's their land, and they can do what they want. In the same thought, I do support the idea that if a landowner/guide wishes to profit from this publicly supported resource, then he should pay his fair share to support the fishery and those fish that he is restricting access to. How a "fair share" would be determined is beyond me, but this could help alleviate the problem of PFBC being outbid by these private entities.

Another thought I've had is that maybe a non-profit organization (i.e. PA Steelhead Association) could help raise funds? Sell buttons and have fundraisers, much like 3CU, to acquire funds that could be used towards acquiring new access, maintaining existing access points, or helping landowners that keep their property open. Maybe they already do this to some extent, but if the state is stuck in the mud, this could at least help a bit.

I for one, wouldn't mind seeing the program nixed if access becomes so limited. PFBC has plenty of it's own problems to handle, and maybe the funds would be better spent elsewhere instead of getting into bidding wars over rustheads. I can't imagine what this would do to the local hotels, shops, and restaurants though.

 

[PatrickC]

turkey wrote:
^this

Dave and Pat, you guys should exchange numbers and talk it out ;-)

Ha! 2 engineers arguing have about as much chance of resolving something as 2 politicians :-D

 

[pcray1231]

inthe,

Yes, the PFBC and private entities alike are indeed aquiring funds and paying landowners to keep their lands open. They are good programs.

I like the rest of your ideas. If you want to post, fine, we have no issue with that. But if you want to lease it out, either you or the guide has to pay. As for what a "fair share" is, you simply come up with a figure, in dollars per mile. I'd ask the PFBC what they pay to stock the streams, and charge them the appropriate % of that. i.e. if 60% of a stream winds up posted under such a program, then 60% of the cost would be incurred by the landowners/guides. The public pays 40% of the costs, and gets access to 40% of the water. Fair.

I'd be in full support of this in principle. But I'm not sure whether the PFBC has the legal authority to implement something like that. It might have to be through local government in the form of zoning or local taxes or something. In which case, you then have to figure out a way that the PFBC gets the appropriate funds. Else you're re-imbursing someone other than who incurred the cost.

I'm also confident it would end up in court. And landowners would probably have a better case against this than they would against the PFBC simply saying "no fishing".

 

[FarmerDave]

pcray1231 wrote:

However, the land owner is entitled to his own land (tittle, deed, whatever). You are not entitled to it without his blessing and that my friend should never change.

Here's what it boils down to. I agree with the above. But the fish in question and the water they swim in are NOT his property in any manner whatsoever, other than that he's one member of the "public" which does indeed own them. The landowner has every right to exclude me from doing anything on his land. And the public has every right to exclude him, me, or everyone, from doing anything to the water or fish held within.

I have not denied any of that, however one thing that you seem to be missing over and over again is is that the fish is not considered ANYONE'S property while it is swimming in the river. Once it is released into the water, it is not anyone's "property" anymore until it is in someones possession again. Then it is the property of whoever is in possession.

Since the fish and the water are "owned" by the public, the landowner owns just as much of that fish and water as you do. The land IS the only thing in question in this equation and you do not own it.

So, what you are proposing is using a resource management tool to punish someone for exercising a right that is undeniable. The landowner right to control who accesses HIS property.

 

[FarmerDave]

pcray1231 wrote:

Like I said, what you're angling towards is a complete withdrawal from the PFBC. You haven't said that, but you haven't offered a single other solution.

Apparently you thought I was lying when I said I wasn't angling for anything.

There are tons of suggestions out there. All I am saying is that using a resource management tool for the sole purpose of punishing, harassing, or causing harm, economic or otherwise to a hand owner is the wrong thing to do, and is likely unconstitutional.

1. Have the state offer him a property tax break in exchange for public access.
2. Form a conservancy group and they can pay the guy for a recreational easement.

All kinds of ides short of marshal rule.

I don't know that the best answer is, but yours is likely not even legal.

And your latest (add another fee) isn't much better.

 

[pcray1231]

I have not denied any of that, however one thing that you seem to be missing over and over again is is that the fish is not considered ANYONE'S property while it is swimming in the river.

You're partially right. The fish is in the water. It's no longer "owned" by anyone, but nor is on the landowners property (the streambed). It's legally "over" their property, like an airplane. Again, the surface water is truly "owned" by the public, and that one has been resolved in court. For instance, I could legally swim or float in said water, so long as I got there without crossing posted property and I never touch the bottom. I recognize that's ridiculous, and I don't intend to try, nor suggest anyone else should do so. I'm just clarifying ownership. The only time when that really comes into play is for larger waters where people want to float through posted property. If you can do so without scraping bottom, you have that right. And that's not just on "navigable" streams, that's on all streams. If it's navigable, then you don't even have to worry about scraping bottom as that would be legal.

Said fish, while perhaps no longer owned, per se, are indeed under the control of the PFBC. 100%. They can specify if, when, and how anybody, landowner or otherwise, may fish for them. Contrary to your assertion, the right to fish is not undeniable. There is no "right to fish", for anyone, anywhere. It's a privilege, granted by the PFBC. I suppose you could say you can't be denied the right to "fish" FROM your property. You can lawn cast all you want. But the water itself is clearly not owned by you, and you do not have a "right" to fish IN that water. You may be allowed to, but it's not a right.

Now, I tend to error on the side of allowing that privilege. But in most cases, there's no "harm" to the public by allowing it. This case is a little different. I'm not stating we're past the line where different actions must be taken. But I'm questioning where that line is, and nomatter where it is, we're clearly moving in it's direction.

As for your "options", both 1 and 2 exist.

1. = easement.
2. PFBC and private entities are indeed doing this.

I fully support both. They seem to merely be slowing the demise of public access to the fishery. In many cases, these efforts are being outbid by private interests.

So sitting here, as a member of the public which is funding this fishery, without any of the "special options", my choices are to

1. Outbid those interests, and have this fishery get more expensive as time goes on, while still losing access, albeit at a slower rate.
2. Continue paying the same, and lose access faster.
3. Stop paying, and instruct the PFBC to stop stocking fish. Landowners can stock their own fish if they so choose.

Now, 1 and 2 may be fine for a little while longer. But they are ultimately a losing battle. Unless you add additional options, option #3 will eventually become the preferred choice for the public. By refusing all "special" programs, that means you pick #3. And that's fine.

I offered an option #4. On the previous page, an option #5 was presented. Both of which I'd think would be preferable to option #3 for landowners and public alike. The ONLY landowners those options would hurt is those who wish to turn a higher profit by excluding the public while still taking advantage of a publicly provided resource.

 

[tomitrout]

For instance, I could legally swim or float in said water, so long as I got there without crossing posted property and I never touch the bottom. I recognize that's ridiculous, and I don't intend to try, nor suggest anyone else should do so. I'm just clarifying ownership. The only time when that really comes into play is for larger waters where people want to float through posted property. If you can do so without scraping bottom, you have that right. And that's not just on "navigable" streams, that's on all streams. If it's navigable, then you don't even have to worry about scraping bottom as that would be legal.

Gonna assume you're not making a blanket statement here and you're only speaking of how it is in PA, but I'm pretty sure there was a big case down in Virginia on the James where this is no longer the case.

 

[pcray1231]

Yeah, I'm speaking of how it currently is in PA. As with anything, my legal understanding is subject to change based on future court cases. But based on past ones only, this is the PA status quo. It's equated with flying over somebody's land.

 

[FarmerDave]

First let me say, please read my avatar once again and stop stating what you think I think or what you think I mean. That is reference to 107. It is getting annoying.

I'm just trying to state facts while leaving emotion out of it.

You might even call it playing devils advocate, but I prefer to look at it as I am looking beyond one specific property and being a realist.

pcray1231 wrote:
Yeah, I'm speaking of how it currently is in PA. As with anything, my legal understanding is subject to change based on future court cases. But based on past ones only, this is the PA status quo. It's equated with flying over somebody's land.

I think you are making some assumptions here. Try flying your plane over someones private land at less than 1000 feet with the numbers clearly visible and see how quickly your license is revoked. Maybe you should also study real estate.

But I am willing to accept your assertion as correct for the sake of argument, because in practicality, it JUST DOESN'T MATTER. You cannot practically float the creek without touching bottom, and even if you could, you couldn't stop and fish unless the stream is "navigable," and the stream bed was held in public trust. Therefore, you (plural) cannot physically fish there without landowner consent. That is fact.

So please, no more long dissertations on that. I am once again acknowledging that theoretically you should be allowed to float that creek but in reality you can't fish there without landowners consent. Assuming fishing is actually legal at the time.

Right?

One is a privilege the other is a right. We agree on that.

Since there is no way around that "right," you propose that the Governing body for fishing use a resource management tool to punish said landowner by taking away the privilege of fishing SPECIFICALLY to just his property with the hopes that he capitulates.

Good luck with that.

Marx would be proud.

I'm not up on guide licenses. No idea if they are required in PA. Go ahead and charge guides more money, or even declare that a landowner must purchase a guide license if he is allowing people to fish his property for a fee. In a way, he is guiding. That does make quite a bit of sense. But using a resource regulation as a punishment or extortion tool? Not so much.

You want less property posted? Convince anglers to stop being such slobs and ****heads. Start a conservation group or use an existing one to police the stream for abuses kind of like a neighborhood watch. Try to improve relations with land owners. Problem is, nobody wants to be bothered. They just feel entitled to fish.

Many of us pick up after others, but how many of you have the nads to do something right when they see someone doing wrong.

The stories I could tell you, and one of them was actually on Elk.

We both know that some people suck. We are both good at numbers. The more people you have the more likely it is that some of them suck, right? Those are the enemies, not the land owners. Well, some landowners suck too, but we both know where the real problem is.

 

[afishinado]

FD,

I'm for landowner rights, but when landowner rights morph to business owner rights, things change. The BUSINESS is charging a fee to fish.

The scenario here is rather unique. Since the funds for hatcheries and stocking come from anglers license dollars and from federal excise tax on sporting equipment, the FBC decides to stock or not stock a stream based public access. That's fine in most cases. The stream along the posted land would not be stocked.

In this case, the stocked fish are migratory. A landowner certainly has the right to post his land, but charging anglers to fish for the fish they paid for is kinda outlandish. It would be like if the Ohio DNR stocked your pond and stocked pheasants on your land and you charged a fee for fishing and hunting!.....Farmer Dave's Cast and Blast. :roll:

If a pay-to-fish operation is set up, some sort of fee should be paid by that business owner and those dollars would be used to contribute to the stocking and access efforts of the FBC.

BTW, PA has a guide license fee of $200 / year. That small of a fee would a joke.

 

[PatrickC]

afishinado wrote:
BTW, PA has a guide license fee of $200 / year. That small of a fee would a joke.

$100/year for PA residents
$400/year for non-residents

But yea, I like your idea of having a fee of some sort for posted land that is then used for profit on the fishing.

 

[pcray1231]

FD,

I'm not trying to attack landowner rights. In fact, I'm quite in support of them.

I'm trying to find an amenable solution to an existing problem, short of having the PFBC back out totally, which would not serve landowners wishes, and isn't the preferred solution for the public either.

Fishermen being slobs and all that. Yeah, I get it. But that's a separate discussion. None of the discussion even proposed preventing a landowner from excluding the public if he so wishes. That obviously MUST always remain an option for the landowner. And some do post for this reason, and I have no beef with them, I might even do the same in their shoes.

But land that's being posted for that reason isn't what's at issue here. It's when the motivation is to make lots of money from guides and/or private clubs. Even that wouldn't be bad if it weren't a publicly provided fishery, but it is. And for me, and lots of fishermen, the idea of using public money to create a fishery that we can't access, but serves merely to make someone else money, is just not acceptable.

We've tried/are trying tax breaks, paying landowners for access, etc. I support that, but ultimately, it becomes a bidding war. And sooner or later, the public is gonna lose that war, these efforts merely push it towards "later".

Absent some special provision of using PFBC regulation, lease fees for landowners, or something of that nature, the PFBC will indeed back out sooner or later. And I'd think that NO landowners want that, regardless of their reason for posting. I was looking for discussion on possible options. Some good ones were given. You can oppose any option you want, I've got no problem with that. But doing none of them means the PFBC eventually backs out, IMO.

I'd honestly propose we do it now. Just stop with this circus. I'm still in the minority, but every new piece of posted property puts a few more in my camp.

 

[pcray1231]

How would this be? Maybe a little overcomplicated, but I'm thinking it's fair. Kind of combining the approaches.

1. If a landowner leaves his land open to the public, he recieves a property tax break.

2. If a landowner wishes to post, he may. Expand the "farm pond" rule. i.e. the landowner and all immediate family members may fish, but nobody else, and the landowner cannot recieve any compensation for it.

3. If the landowner wishes to lease his land to guides, he may, but he has to pay a fee. The fee can be structured "per mile", and will match that % of the water. i.e. if he leases 10% of Elk Creek to private interests, then the fee will be 10% of what it costs the PFBC to stock steelhead in Elk Creek. The public then pays only the portion of the costs equal to their ability to access it. Landowners who are motivated to post for profit likewise would pay what it costs to create their private fishery, and can charge the guides for it.

This fee would have to be a special "Erie fee", as it would not apply to landowners leasing land elsewhere (for hunting or fishing purposes). Kind of like the Erie stamp on your fishing license, only this one is for landowners.

Supporting details: "Posting" means only stream frontage miles, below the high water mark. i.e. a landowner can prevent parking, or prevent the public from accessing portions of their land which do not include stream frontage, and still have the land deemed "open". i.e. they could then still get the property tax break, they could lease prime parking spots without paying the "fee", etc.

 

[FarmerDave]

afishinado wrote:
FD,

I'm for landowner rights, but when landowner rights morph to business owner rights, things change. The BUSINESS is charging a fee to fish.

Not necessarily. There is this thing called income tax. Most small business income is handled as personal income rather than a separate company.

The scenario here is rather unique. Since the funds for hatcheries and stocking come from anglers license dollars and from federal excise tax on sporting equipment, the FBC decides to stock or not stock a stream based public access. That's fine in most cases. The stream along the posted land would not be stocked.

True.

In this case, the stocked fish are migratory.

And this is the landowners fault in what way? Once the fish are in the water, they are nobody's property until they are in somebody's possession again.

A landowner certainly has the right to post his land, but charging anglers to fish for the fish they paid for is kinda outlandish.

Would you feel better if I came right out and said I agree with that? OK, I agree with that. It is outlandish. A lot of things are outlandish. The fact that Warren Buffet paid a lower effective tax percentage than me is very outlandish.

It would be like if the Ohio DNR stocked your pond and stocked pheasants on your land and you charged a fee for fishing and hunting!.....Farmer Dave's Cast and Blast. :roll:

No, it would be as if ODNR stocked the stream that flows through my property and stock pheasants that flew or walked onto my property and then I charged a fee...

If a pay-to-fish operation is set up, some sort of fee should be paid by that business owner and those dollars would be used to contribute to the stocking and access efforts of the FBC.

I don't have a problem with that and I believe I even said it has merit in my last one. But the extortion with "nursery water" idea simply has none in a free society.

BTW, PA has a guide license fee of $200 / year. That small of a fee would a joke.

Whatever it is it is, until it changes and them it is what it is then.;-)

Go ahead and raise it.

 

[FarmerDave]

pcray1231 wrote:
FD,

I'm not trying to attack landowner rights. In fact, I'm quite in support of them.

I don't believe I ever said you were attacking landowner rights. You are only trying to figure out a way around them, and the "nursery waters idea was a bad one.

Can we move on? Was there anything else worth reading in that one or was it the SOS. I didn't read the whole thing. TL.

 

[FarmerDave]

pcray1231 wrote:

Fishermen being slobs and all that. Yeah, I get it. But that's a separate discussion.

IMO no it isnt. It is one of the reasons why such places exist, but carry on.

 

[PatrickC]

Pcray wins... int:

Dave, I think we should just go fishin'! (He doesn't really win, but it makes things easier. Sometimes we just gotta say "Nuff said" ;-) )

 

[pcray1231]

IMO no it isnt. It is one of the reasons why such places exist, but carry on.

But not the reason that's the problem, and the proposal(s) didn't prevent posting for this purpose.

 

[afishinado]

If a pay-to-fish operation is set up, some sort of fee should be paid by that business owner and those dollars would be used to contribute to the stocking and access efforts of the FBC.

I don't have a problem with that and I believe I even said it has merit in my last one....

There ya' go....you agree.

Pcray's proposal above is a pretty solid one. The only problem I foresee would be a fee equal to the stocking costs charge based on the percentage of stream being closed. I would guess that to be a lot of coin. But, something could be worked out.