Wet Boots, Wired Streams and Murky Law

            Nothing kills the enjoyment of an afternoon of fishing more than to encounter a particular section that has been wired off by a landowner.  A “wired” stream is one across which someone has stretched a stout cable or wire, the obvious purpose of which is to prevent passage. Such places are usually posted with a blizzard of signs threatening dire punishment for trespassing, “use thereof,” and a host of other infractions. While not a common practice, such behavior still happens occasionally.  It usually means an abrupt change in the angler’s plans, maybe even packing it in and returning home.

            For most landowners in most of these situations the practice is effective.  How many fishermen are willing to take the time and go to the trouble of challenging the landowner as to the legality of the practice?  Especially when for many years not even the Fish Commission, the courts or the legislature has been particularly clear about the legal status of our waterways, nor have they expended much effort in establishing a clear set of rules that everyone can understand and follow.  Instead, just about every instance of conflict between fishermen, boaters and other recreational water users and property owners has been settled on a case-by-case basis.

            However, a recent case in Hunting County, may give us some hope.  During a week-long trial, the Fish Commission, DCNR, the DEP and a local fishing guide, Allan Bright, were successful in a suit against Donald Beaver and the Spring Ridge Club, a private fishing club.  They asked that the court confirm “that the historically navigable waters of the commonwealth belong to the people of the commonwealth, and no individual or corporation has the right to restrict the public’s access to these waterways.”

            The problem first occurred in 2000 when Mr. Beaver started operating an exclusive fly fishing club on the Little Juniata River.  He and his employees began excluding non-members, the “public,” by stringing cables across the river and posting “No Trespassing” signs at both ends of a 1.3 mile section of water on club-owned land.

            In a press release dated January 31, 2007 the Pa. Fish and Boat Commission said “The commonwealth based ownership of the river on historical evidence of navigation and trade on the Little Juniata River dating from the 1700s, and statutory designations of the river as a public highway dating to 1794, 1808 and 1822.” 

The release goes on to state “Public rights to and on the water is a very 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, [italics mine] it remains a legally navigable waterway. There is no single published listing of all the navigable waters in Pennsylvania. Although the public has the right to fish in a navigable stream flowing through private lands, this does not mean that the public has the right to cross posted private lands to get to the stream.”

            By now you may have figured out that a lot depends on what one means by “navigable,” as the word has already popped up six times in this short discussion.  My view is that a lot of landowners, especially those recently removed here, who may not be familiar with our local history, confuse the word with navigation, i.e., ships and motorized boats and barges and such.  But in the context of Pennsylvania streams and waterways it has a broader meaning.  Locally, even very small streams (Lyman Run, Cross Fork Creek, Oswayo Creek to name a few) that might seem unsuitable for ‘navigation’ were modified with ‘splash dams’ that enabled lumbermen to move thousands of logs downstream in spring thaw by dynamiting the dam.  Ergo, the stream can claim to have been engaged in commerce and is therefore ‘navigable’.  For all practical purposes all of Potter County’s fishable streams are historically ‘navigable’.

            That means that all of our streams are open to public fishing, so long as the fisherman stays in the stream.  It does not mean that one can willy-nilly cross private land to get to the stream.  In the recent Little Juniata case, the state successfully sought specifically to prevent the stringing of piano wire across the stream.  That is a no-no.  Reasonable advice to any fisherman, then, who wants to fish a wired stream, is to keep your boots wet.

            While the Little J decision is good news of a sort, it seems to me that it begs the question: “Why can’t Pennsylvania get its act together and enact suitable legislation to clarify these issues once and for all.”  Dan Tredinnick, spokesman for the Pa. Fish and Boat Commission, has indicated that attorneys are reviewing the decision to determine its impact and whether it might be used to build case law for future disputes over the privatization of natural resources [Deborah Weisberg, writing for the Pittsburgh Post Gazette on January 31].  All well and good, but as it stands the real winners in water use disputes are the lawyers.

            I find it hard to believe in this day of computers and with the resources available to the state that it can’t manage to classify and codify the state’s navigable streams into a straightforward database or look up table for the use of the public and other parties. Currently, the Fish Commission has every stream in the state compiled into one database or another.  How difficult can it be to modify or amend this information to provide the basis for resolving navigability disputes.  The “case law” work seems to have been accomplished.  It’s time that the legislature acted to eliminate the expense to taxpayers – fishermen and non-fishermen – of these pesky court cases.

            Linda Steiner, writing about a similar case involving the Lehigh River in the 2000 July/August issue of Pennsylvania Angler & Boater quotes the then Fish & Boat Commission Chief Counsel, Dennis Guise, as saying “Neither the Fish & Boat Commission or the Department of Environmental Protection is authorized to make navigability determinations.  As a result, parties disputing the navigability of a particular stream or river may have to go to court, which can be an expensive and time-consuming process.” 

Sound familiar?

Sources:

http://www.post-gazette.com/pg/07031/758103-358.stm – “Fishing club can't cast public off river,” By Deborah Weisberg

http://sites.state.pa.us/PA_Exec/Fish_Boat/newsreleases/2007/out_dep_littlej.htm – “PUBLIC’S RIGHT OF ACCESS TO LITTLE JUNIATA RIVER WINS CRITICAL PROTECTION” (press release)

http://sites.state.pa.us/PA_Exec/Fish_Boat/anglerboater/2000/00julaug/lehicort.htm – “Lehigh River Court Case Tests "Navigability" by Linda Steiner

  Copyright Feb. 21, 2007 Thomas P. Dewey