Pennsylvania Trial Court Preserves Public Access

Pennsylvania v. Espy, No. 03-781 (Pa. Ct. Common Pleas filed Jan. 29, 2007).

Stephanie Showalter, J.D., M.S.E.L.

A pristine river stocked with trout is silent on a beautiful summer morning. One fisherman stands in the middle of the river about to cast his first line. His guide his only company. No cars, no music, just the sounds of nature. Every fly fisherman’s dream, right? A few fishermen have been living that dream in Pennsylvania as members of the exclusive fishing club, the Spring Ridge Club (Club). The controversial Club owns or leases almost ten miles along some of the best trout streams in Pennsylvania for the exclusive use of its members. The dream comes with a hefty price tag, however. It currently costs $95,000 to join the club and members are required to pay annual dues (approximately $4,500) and incur fees for staying or eating at the Club’s lodges. But for some wealthy fly fishermen, the cost is worth it for the benefit of an empty stream.

Although local fly fishermen grumbled about the Club’s existence and what such operations mean for the future of the sport, the wrath of state regulatory agencies was not raised until 2003 when the Club installed two cables, spaced 1.3 miles apart, across the Little Juniata River and posted them with “No Trespassing” and “Private Property” signs. The Little Juniata River, a branch of the Juniata River, flows through Huntingdon County in central Pennsylvania. The Club’s intent to limit public access was undeniably clear. The fact that the trout its members were catching are stocked annually by the Pennsylvania Fish and Boat Commission made little difference to the Club. The Club’s position was that their lease of .60 acres of land along the River included the streambed and they had a right to restrict access.

The Pennsylvania Department of Environmental Protection, Department of Conservation and Natural Resources, and the Fish and Boat Commission (Commonwealth) disagreed. In 2006, the Commonwealth sued the Club and its owner, Donald Beaver, alleging interference with the public’s right to access the 1.3 mile section of the Little Juniata River. The Commonwealth claimed ownership based “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.”1

Public’s Right to Fish and Navigability
“Navigable waterways located in Pennsylvania are owned by the Commonwealth and are held in trust for public use, while the beds of non-navigable waterways are owned by the property owners of the land along the waterways.”2 Riparian owners of land along the banks of navigable rivers “do not have the exclusive right to fish in those rivers; that right is vested in the Commonwealth and open to the public.”3

During the early years of the Commonwealth, extremely poor road conditions and the bulky nature of most goods produced by rural communities (grain, flour, lumber) made overland transport difficult and expensive. Pennsylvania’s abundant rivers and streams provided an alternative transportation network. Many waterways, including the Little Juniata, were used by inland communities to transport goods to the larger cities of Philadelphia and Pittsburgh. Since many of the streams were shallow, arks were often the vessel of choice. Arks “could operate in water as shallow as twenty to twenty-four inches and were able to carry about fifty tons of goods.”4

Navigability is a loose term that varies depending on which state the waterway is located in and which level of government is called upon to make the determination. There is no single published listing of all navigable waterways in Pennsylvania. Except for a few “principal rivers,” such as the Susquehanna, most navigability determinations are made on a case-by-case basis by the Pennsylvania courts. The test for navigability in Pennsylvania is whether a river is navigable in fact.5

Navigability of the Little Juniata River
The primary issue facing the trial court was ownership of the streambed along the disputed section of the Little Juniata River. If the river was non-navigable, title to the streambed was held by the riparian owner. If the river was currently navigable, or had been in the past, the Commonwealth holds the title and the waterway is open to all.

The court determined that the Commonwealth submitted sufficient evidence to support the conclusion that the Little Juniata River was once a highway of commerce for surplus goods. Furthermore, the Pennsylvania Legislature declared the Little Juniata River a public highway in 1974.6

The Spring Ridge Club argued that its lease, which was based on the riparian owner’s deed, granted title to the streambed regardless of the navigability of the Little Juniata. The court disagreed. At the time that the Little Juniata was declared a public highway, the Commonwealth held title to the tract of land in question. The land passed into private hands in 1803 through a series of deeds from the Commonwealth. The court held that the Commonwealth’s original grant of land, coming nine years after the public highway designation, was subject to public highway declaration. Therefore, the property “extends only to the low watermark and not the middle of the stream.”7

Conclusion
In January, Pennsylvania won a significant battle in the war to preserve public access to the state’s waterways. There are many more battles to fight, however. Donald Beaver is expected to appeal the court’s ruling to the Pennsylvania Superior Court and the popularity of private fishing clubs is growing. Public acquisition of land may be the only alternative to lengthy court battles and unsatisfactory settlements.

Endnotes
1. Public’s Right of Access to Little Juniata River wins Critical Protection, January 31, 2007 available at
http://www.fish.state.pa.us/newsreleases/2007/out_dep_littlej.htm .
2. Lehigh Falls Fishing Club v. Andrejewski, 735 A.2d 718, 719 (Pa. Super. Ct. July 26, 1999).
3. Id.
4. Pennsylvania v. Espy, No. 03-781, slip op. at 21 (Pa. Ct. Common Pleas filed Jan. 29, 2007).
5. See Pennsylvania Power & Light co. v. Maritime Management, Inc., 693 A.2d 592 (Pa. Super. Ct. 1997).
6. Espy, slip op. at 23.
7. Id. at 55.

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