Public Fishing Access On Posted Land, NO ONE KNOWS THE RULES!

bigjohn358

bigjohn358

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Joined
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Williamsport
It comes up all the time about fishing private waters when accessing from public land. The officials don't even know the rules it sounds!

PFBC officials gear up for trout season; some streams taken off the stocking schedule

As anglers patiently await opening day of trout season, the Pennsylvania Fish & Boat Commission is preparing to roll out its stocking trucks to place millions of fish into streams and lakes across the state. Officials appearing at the February meeting of Susquehanna Chapter of Trout Unlimited...
www.sungazette.com www.sungazette.com

Quoted from the article: "Anglers normally have every right to fish in posted sections of streams if they access them from public areas and remain in the water, according to officials.
However, they noted state laws are not completely clear on the issue.
As the Fish and Boat Commission website states: “Public rights to and on the water is a complex area of Pennsylvania law. In Pennsylvania, the public’s right to fish in a particular stream depends in large part on whether the stream is ‘navigable.’ In general, the public has the right to fish in a navigable waterway. The accepted test of navigability is whether the waters are used, or are susceptible to being used, in their ordinary condition, as highways for commerce. If the water met the navigability test at any point in its history, it remains a legally navigable waterway. There is no single published listing of all the navigable waters in Pennsylvania.”"

So how can ANYONE ever get in trouble for fishing on private waters if there are no clear rules? Not even the officials know the rules! There is no listing of naviable waters and if you believe in Noah's Ark and the Bible at one time ALL waterways would have been navigable because it mentions at ANY TIME IN HISTORY. If you don't have a complete list of navigable waters then I don't see how this rule can even exist because its always going to leave a gray area!
 
"Anglers normally have every right to fish in posted sections of streams if they access them from public areas and remain in the water, according to officials."

That's wrong. There is no such law in PA.

That came from the writer of the article, not from the PFBC people.

He says "according to officials." What officials? He doesn't say. Because he made that part up.
 
troutbert said:
"Anglers normally have every right to fish in posted sections of streams if they access them from public areas and remain in the water, according to officials."

That's wrong. There is no such law in PA.

That came from the writer of the article, not from the PFBC people.

He says "according to officials." What officials? He doesn't say. Because he made that part up.
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You are reading it EXACTLY how I was reading it!
 
From what I was told. If the land owner owns both sides of the stream he can post the water, doesn't matter about access above or below, you can't fish with out permission. If the land owner owns one side he can post that side only to the middle, can fish the other side, if not posted. If the water is navigable, you can wade or walk below the high water mark. A judge has to decide if it is a navigable water way. Ask Al Bright from Spruce Creek Outfitters, he's the one who went to court to open up the Little J.
 
bigjohn358 said:
The accepted test of navigability is whether the waters are used, or are susceptible to being used, in their ordinary condition, as highways for commerce. If the water met the navigability test at any point in its history, it remains a legally navigable waterway. There is no single published listing of all the navigable waters in Pennsylvania.
Click to expand...
Here's a source of one of those incomplete lists referenced in the article:


The note at the bottom of this particular list states:

"The waterways identified herein as having publicly-owned streambeds have been compiled by the Commonwealth over time from varioussources. Identification is based upon information believed to be reliable and persuasive evidence of such ownership. The identification of a waterwayas 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 publiclyowned. The Commonwealth reserves the right to add or remove waterways identified as having publicly-owned streambeds as additional informationbecomes available."

. . . Which for me translates to still clear as mud. Regardless, this was the most complete list I've ever come accross from a couple of years ago when a fishing access dispute from a state out west ended up in a high court. Interested me enough to pull a few threads for PA at that time.
 
tomgamber said:
Not anymore. The ruling in yesterday case read," if it's navigable in fact, it's navigable in law".
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What was yesterday's case? Do you have a link to the story?
 
What case was “yesterday’s case?” And how did it differ from what the PFBC says in the link provided by Lyco, which in part reads, “‘Waterways must be regarded as "navigable in law if they are navigable in fact." According to the United States Supreme Court in The Daniel Ball in 1870, waterways are "navigable in fact" when they are used or are susceptible of being used in their ordinary condition as highways for commerce over which trade and travel are or may be conducted in customary modes of trade and travel on water.”’
 
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lycoflyfisher said:
Some links for clarity due to poorly written article

www.fishandboat.com

Public / Private Access

www.fishandboat.com www.fishandboat.com

https://nsglc.olemiss.edu/SandBar/SandBar6/6.2publicaccess.htm

Other than the great rivers, I am only aware of the Little J and Lehigh river cases. There is an ongoing case with Fishing Creek in Columbia Co.

To the OP, you have been around long enough to have seen this info before.
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Oh I remember the Little J case...I'm not saying I agree with ANY of this article! I'm just saying how can something that seems like it should be so simple end up being so complicated? Why can't they just create some legit laws that make sense and can't be interpreted however the heck someone wants to interpret them? The article even says its "not completely clear"...well make it clear! Fix the law and make something official!
 
jeffroey said:
Here's a source of one of those incomplete lists referenced in the article:


The note at the bottom of this particular list states:

"The waterways identified herein as having publicly-owned streambeds have been compiled by the Commonwealth over time from varioussources. Identification is based upon information believed to be reliable and persuasive evidence of such ownership. The identification of a waterwayas 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 publiclyowned. The Commonwealth reserves the right to add or remove waterways identified as having publicly-owned streambeds as additional informationbecomes available."

. . . Which for me translates to still clear as mud. Regardless, this was the most complete list I've ever come accross from a couple of years ago when a fishing access dispute from a state out west ended up in a high court. Interested me enough to pull a few threads for PA at that time.
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Decisions on navigability are made by the courts. Agencies like DCNR do not have that power. So, DCNR is just expressing their opinion with that document. It has no legal force.

It appears that they named that document "Navigable Waterway List." That is not accurate, because the paragraph you posted makes it clear that they do not know whether the streams on that list are navigable or not. Or whether other streams may me navigable, but aren't on the list.

So it would have been more accurate to title it something like "Some Streams That DCNR Thinks Should Be Listed as Navigable Streams."
 
troutbert said:
Decisions on navigability are made by the courts. Agencies like DCNR do not have that power. So, DCNR is just expressing their opinion with that document. It has no legal force.

It appears that they named that document "Navigable Waterway List." That is not accurate, because the paragraph you posted makes it clear that they do not know whether the streams on that list are navigable or not. Or whether other streams may me navigable, but aren't on the list.

So it would have been more accurate to title it something like "Some Streams That DCNR Thinks Should Be Listed as Navigable Streams."
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There are other regulatory implications from that data than just public access Troutbert. You likely may have heard of a Submerged Lands license for example. For waterway encroachments and obstructions there are submerged lands agreements required for structures or utilities that occupy commonwealth land. That DCNR list is one of the resources recognized and used in that determination process.
 
troutbert said:
What was yesterday's case? Do you have a link to the story?
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Must have been a spell correct thing. No idea where "yesterday" came from but I was referring the Little J case. And that snippet Mike made reference to being the heart of the states case. Basically if you can run a boat on it in a normal manner it's navigable. Big fingers, little phone.
 
tomgamber said:
Must have been a spell correct thing. No idea where "yesterday" came from but I was referring the Little J case. And that snippet Mike made reference to being the heart of the states case. Basically if you can run a boat on it in a normal manner it's navigable. Big fingers, little phone.
Click to expand...

Sure if you want to test out that theory in court and you have the money for the lawyers we would all really appreciate it. Can you please start with yellow creek. There is a lot of water there I would love to explore.
 
HopBack said:
Sure if you want to test out that theory in court and you have the money for the lawyers we would all really appreciate it. Can you please start with yellow creek. There is a lot of water there I would love to explore.
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That literally what they used to make the little j ruling.
 
HopBack said:
Sure if you want to test out that theory in court and you have the money for the lawyers we would all really appreciate it. Can you please start with yellow creek. There is a lot of water there I would love to explore.
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Exactly my point...also what's considered a boat? Is my kayak with a trolling motor on it considered a boat? I can take that thing in a lot of skinny waters and I have to have it registered like a boat.
 
tomgamber said:
That literally what they used to make the little j ruling.
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The little J ruling is only good for the little J. It doesn’t apply to any other streams in PA. Now they could use it as a case reference if another body of water in PA is challenged.

That’s where you come in Tom. If you have the money for the lawyers all of us would appreciate our favorite streams opened up.
 
stashe said:
From what I was told. If the land owner owns both sides of the stream he can post the water, doesn't matter about access above or below, you can't fish with out permission. If the land owner owns one side he can post that side only to the middle, can fish the other side, if not posted. If the water is navigable, you can wade or walk below the high water mark. A judge has to decide if it is a navigable water way. Ask Al Bright from Spruce Creek Outfitters, he's the one who went to court to open up the Little J.
Click to expand...
My understanding is that if one is "float fishing", as long as they stay in the boat, they can legally fish a stream in which land owner owns the property on both sides. Once you step foot in the stream, you are illegal.
 
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