The evil empire strikes back

[rrt]

Mainly for Jack M. -- I did not mean to impugn the integrity of all lawyers; I imagine that the majority of lawyers and judges are honest people. I do hope that the judges of the Commonwealth Court are ones who possess unimpeachable integrity and that the evil empire cannot bribe them in any way. Having said that, I am sure the unscrupulous empire will use any method available to it, legal or illegal, to gain what it wants. My post was not intended to be a slam against you; if you felt insulted, I apologize. I was trying to let people know that the evil empire and its evil emperor have not given up on their attempts to steal the Little Juniata River.

 

[JackM]

I appreciate your clarification rrt, and I hope you see that your post gave courage to a few others to pile on. In any case, as I noted, there are lawyers representing the side of the equation you and they find themselves on as well as government employees, politicians, judges, and probably a few cornchuckers, too.

 

[CRB]

Jack M.
My remarks did not imply ALL Lawyers are corrupt but rather DB will use whatever he can to win. Just look at the PA Landowner ***., One spent a lot of money and time just to end paying in the end.
I believe your right about civil penalties and that the case had to be appealed.

C

 

[OhioOutdoorsman]

Well, too be honest, I wonder if all these appeals will deal with larger constitutional issues on whether the high water mark laws are actually constitutional or not. I think DB is probably hoping that the navigable water laws will be declared unconstitutional......and not being a lawyer, I would say that it might be in the realm of possibility.

And laws can be changed, whether they be state or federal statutes.....I guaruntee there will be plenty of property owners lobbying for changing the laws so that every Tom, ****, and Harry can't come charging up the river along your property.

As a sportsman, I agree that I think its wrong for DB to close his water, but as an American citizen, I also think it should be his right to do so. Could I go on your land and hunt deer or graze cattle for free? Fishing just doesn't seem to justify this eminent domain the same way interstate commerce did when the law was first made.

 

[Will]

Ohio: Like a lot of folks on both sides of this issue, you're assuming your own conclusion when you talk about DB closing "his water." The issue the court decided was whether the water, or more specifically the streambed under it, was "his" or not under PA law. The court found that it was not "his". If it had found the other way, DB would have been free to close "his" water. Supporting property rights is all well and good, but it doesn't eliminate the need occassional need for courts to decide who owns what.

 

[FarmerDave]

OhioOutdoorsman wrote:
Well, too be honest, I wonder if all these appeals will deal with larger constitutional issues on whether the high water mark laws are actually constitutional or not. I think DB is probably hoping that the navigable water laws will be declared unconstitutional......and not being a lawyer, I would say that it might be in the realm of possibility.

And laws can be changed, whether they be state or federal statutes.....I guaruntee there will be plenty of property owners lobbying for changing the laws so that every Tom, ****, and Harry can't come charging up the river along your property.

As a sportsman, I agree that I think its wrong for DB to close his water, but as an American citizen, I also think it should be his right to do so. Could I go on your land and hunt deer or graze cattle for free? Fishing just doesn't seem to justify this eminent domain the same way interstate commerce did when the law was first made.

We have been through this hundreds of times in the past, so i will try to kep this short. I'm not a lawyer, but the way i see it ...

As a land owner (and even if i wasn't a land owner), I support the right of landowners to control who is allwed access to their land, and who isn't. However, in this case, Beavers was trying to control who had access to public land.

1. The ruling will stand up to any constitutional test. It is consistant with both federal and Pennsylvania State navigability laws.

2. Eminent domain had absolutely nothing to do with it. Navigable waters are held in public trust. Therefore, Espy never owned the stream bottom.

I'm not saying the law is fare or not in todays world. One could argue that the laws are antiquated, but it is what it is. Navigable stream beds are still public land held in trust by the state. Therefore, the state cannot just give it to the owners of adjacent lands because the law is antiquated.

I believe the original 13 all have basically the same laws when it comes to navigable waters, which is consistant with federal, which was barrowed from English navigability laws and modified to fit the new land. In England, the term "high water mark" refers mostly to high tide because most of the navigable waters are influenced by tide. In the Colonies, where there were/are large inland waters, the term "high water mark" refers to ordinary flow, which does not include flood plane. Many newer stated have very different laws.

For example: I believe Ohio's laws are different. The landowner can own the stream bottom of navibable streams (for example, the Grand River). In this case, the river can still be used for navigation (commerce or pleasure). However, the landowner can restrict other activities, such as fishing. In other words, as soon as you stop and fish, you could be breaking the law. I believe that to be the case, but I can't prove it.

 

[FarmerDave]

http://www.olemiss.edu/orgs/SGLC/National/SandBar/6.2publicaccess.htm

 

[ian_brown]

Jack,

Were constitutional issues raised in the trial court? If not, would the Beave be allowed to raise them on appeal?

 

[JackM]

I only have access to the Judge's decision and it does not address any constitutional question, so I am assuming one was not raised. Generally, issues not raised with the trial court cannot be raised in the first instance on appeal.

 

[troutbert]

Will wrote:
Ohio: Like a lot of folks on both sides of this issue, you're assuming your own conclusion when you talk about DB closing "his water." The issue the court decided was whether the water, or more specifically the streambed under it, was "his" or not under PA law. The court found that it was not "his".

That's exactly right. And assuming his own conclusion was the way DB presented this to the public over and over. He talked about the state taking "his water." But the question from the beginning was, whose water is it?

So any talk about "his water" is a fallacious and dishonest type of argument commonly known as "begging the question." Which means that rather than actually discussing the question in an open and honest way, you pretend that there really isn't a question, and talk about it as if if the matter is already settled, and in your favor of course.

It's very common, people do it all the time. It's a very common tactic. It's good to be able to recognize it.

Here's a simple definition of Begging the Question:

Take for granted or assume the truth of the very thing being questioned.

 

[littlejuniata]

It appears that the Beav is trying to cover his butt from great financial loss plus trying to keep himself from being exposed to all his wealthy clients as a complete wack job? This venture if it fails will be his third of fourth strike, extremely damaging to his ego.

 

[OhioOutdoorsman]

Wow, I really misunderstood this isuue bigtime. I thought the issue was that the navagability provided an easement on land that was definitely owned by DB. This is how it is portrayed in in the press. I mistakenly thought that the lawsuit granted access to land that was clearly owned by DB that he was conducting his business on.

If it was never his land, then I think he's just trying to be a thief and steal from the public. Shame on him.

Thanks for clearing it up for me.

So in hindsight, is the law granting access in Montanna kind of redundent because people already had rights to the water? And is this why the Jackson River, VA issue was lost....because the streamside owners actually owned the river due to the "King's grant"?

In Ohio, you can be on a vessel in the water and fish but as soon as you step out, you're trespassing.

 

[Squaretail]

Most of it wasn't his land anyway. From what I understand, after he got the owners to take his money and give him rights to it, he would claim it was posted land anyway. Which alot of it was, but some of the landowners WOULD give permission if asked before DB got in there. But he would still remind everyone that it was posted like no one was ever was aloud to fish it. A true snake in the grass.

 

[JackM]

Interesting article in today's Pittsburgh Post-Gazette:

Railroad joins Little Juniata River access fight
Exclusive club told to remove fencing, no trespassing signs
Wednesday, August 08, 2007

By Deborah Weisberg, Special to the Post-Gazette



As state attorneys and Donny Beaver prepare to do battle in a state appeals court over access to the Little Juniata River, another matter is unfolding along its banks.

Norfolk Southern Corp. has ordered Mr. Beaver, operator of the exclusive Spring Ridge Club, to immediately remove barbed wire and "no trespassing" signs from railroad property along the stream. If he fails to do so within 10 days, Norfolk Southern will perform the task and might bill him for the work, according to Norfolk Southern attorney Randal S. Noe, who made the demands in an Aug. 3 letter to Mr. Beaver.

Mr. Noe said yesterday that he doesn't know when the barbed wire and signs were erected, but the railroad only recently was made aware of them. The "no trespassing" signs bear the names of the Spring Ridge Club and Legacy Conservation Group, two of several corporations Mr. Beaver has or had an interest in. The barbed wire is strung among dense brush downstream of Spruce Creek.

"We were advised by a third party of [the wire and signs'] existence," said Mr. Noe. "We weren't aware of anything before that. But once we became aware, we got concerned."

Although Mr. Beaver leases a small, relatively narrow strip of land from the railroad along the Little Juniata, Mr. Noe said the signs and barbed wire are beyond the leased section. He also said that while the railroad "does not want to get in the middle of a dispute between the state and Don Beaver ... when [Beaver] allegedly invaded our property, we felt it was our duty to react."

Mr. Beaver declined to comment.

In the Aug. 3 letter to Mr. Beaver, Norfolk Southern demanded "the immediate removal of any barbed wire, fencing, barriers, signs or other material placed on our property by you, your employees, or agents." It further stated that the railroad company would inspect the property in about 10 days, remove and dispose of any such material and "reserve the right" to seek recovery of payment for the cost.

Three state agencies, including the Department of Environmental Protection, and local fishing guide Allan Bright sued Mr. Beaver and the club four years ago because they treated a 1.3-mile section of the river near Spruce Creek as members-only water.

Earlier this year, Huntingdon County Common Pleas Judge Stewart Kurtz ruled in the state's favor. Subsequently, Mr. Beaver was ordered not to post or hang signs on the stream, not to "threaten, harass or otherwise attempt to exclude the public" from the water and streambed, and not to advertise the river as private.

In recent months, however, "no trespassing" signs and metal posts with bright orange caps had been posted in and along the Little Juniata on the side opposite the railroad tracks, where Mr. Beaver owns land for the Spring Ridge Club, a private fishing organization that charges up to $80,000 for membership and thousands more in annual fees. The metal posts and most of those signs have since been removed.

Mr. Beaver appealed the judge's decision last month in a case that probably will be argued early next year.

Stan Stein, the attorney for Mr. Bright, who is seeking damages over income he claims he lost for all those years that the club advertised the Little Juniata as private, said the railroad issue "will have no effect on the appeal, but it may have an effect on how and whether the court might be asked to enforce the court order."



--------------------------------------------------------------------------------

Deborah Weisberg is a freelance writer.

 

[FarmerDave]

OhioOutdoorsman wrote:
Wow, I really misunderstood this isuue bigtime. I thought the issue was that the navagability provided an easement on land that was definitely owned by DB. This is how it is portrayed in in the press. I mistakenly thought that the lawsuit granted access to land that was clearly owned by DB that he was conducting his business on.

I did the same thing. I think most people did, or at least most people who support landowner's rights did.

If it was never his land, then I think he's just trying to be a thief and steal from the public. Shame on him.

In fairness, he the Espys probably did think they owned it. I think it was stated that the Espys can trace ownership all the way back to a grant from William Penn, but the link I provided shows the early 1800s when it was granted.

Thanks for clearing it up for me.

So in hindsight, is the law granting access in Montanna kind of redundent because people already had rights to the water? And is this why the Jackson River, VA issue was lost....because the streamside owners actually owned the river due to the "King's grant"?

the laws are different in Montana. I believe in Montana, you can actually own water rights, just like you can own mineral rights in Pa or Ohio without actually owning the land. So, I doubt the law was reduntant, but I am not familiar with it.

In Ohio, you can be on a vessel in the water and fish but as soon as you step out, you're trespassing.

I believe even that is a gray area. the act of getting out of the vessel is not the problem. You can actually legally get out of your "vessel" for portage. Fishing is what makes it trespassing. I don't think you even need to get out to fish to be trespassing. For example, if you drop anchor or ground your "vessel" and fish, you are probably also tresspassing even if you don't get out. Fishing as you float through? Definite gray area. At least that is the way i understand it and I could be wrong. If you think about it, if this were not the case, one could fish from a float tube, and as long as he doesn't get out of the tube ... Nope, I don't think that would float (punn intended).

 

[littlejuniata]

Couldn;t Beaver and the club be fined for disobeying the judges orders because of the illicit signs, stakes, wires etc?

 

[OhioOutdoorsman]

I believe even that is a gray area. the act of getting out of the vessel is not the problem. You can actually legally get out of your "vessel" for portage. Fishing is what makes it trespassing. I don't think you even need to get out to fish to be trespassing. For example, if you drop anchor or ground your "vessel" and fish, you are probably also tresspassing even if you don't get out. Fishing as you float through? Definite gray area. At least that is the way i understand it and I could be wrong. If you think about it, if this were not the case, one could fish from a float tube, and as long as he doesn't get out of the tube ... Nope, I don't think that would float (punn intended).

Well, I've been breaking the law for years then....recently mostly on the clear fork of the mohican and the mad river near dayton, which are stocked with "the people's fish" (fingerling brown trout). There are mutiple canoe liveries on multiple rivers that have allowed fishing on rivers running through private land from vessels. I know a group of guys that fish for steelhead on the Chagrin that do this in toons.....needless to say they get atken for a ride every now and again. In fact, there is group of people planning to float down DB's Conneat property in OH in tubes with snoopy poles in protest. The Ohio DNR has told DB if he closes the river, they will stop stocking the Conneat, and won't authorize him to do it.