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Judge to decide fishing case

A property rights issue certain to impact landowners and anglers across the state is now in the hands of Huntingdon County Judge Stewart Kurtz following closing arguments Wednesday in the civil case of a Spruce Creek fishing club claiming a stretch of the Little Juniata River as a private waterway.
Testimony in the week-long trial by judge took place in June. The court reporter then had to compile a complete record of the case before attorneys returned to the courthouse for their final arguments. Kurtz will rule within 90 days.
The state Fish & Boat Commission, Department of Environmental Protection and Department of Conservation and Natural Resources filed suit against the Spring Ridge Club in June 2003. The agencies are seeking an injunction to keep the club from prohibiting public fishing of 1.3 miles of prime trout waters .
Club members fly fish the river just downstream from the confluence with Spruce Creek and on other streams where the club holds property leases. Club owners maintain the stream is not navigable and that property leases include the stream bed. The club is now operated under the name Rural Conservation Partners LP.
Commission regulations hold that anglers can fish navigable waters and walk the bank between the high and low water marks, so long as they entered the stream bed at a public access point or over private property with permission. Access to non-navigable waterways is determined by the landowner.
“This definition of ‘navigable’ has a great impact on property rights,” Kurtz said.
Kurtz said in June that what is landmark about the case is the completeness of the record that has been compiled for appellate courts on the topic of navigability and public highways.
Much of the trial centered on the views of two historians called as witnesses to testify about the use of the Little Juniata for commerce between the Revolutionary War period through 1850. Attorneys focused on whether or not the stream is or was “navigable” in Wednesday’s two-hour appearance before Kurtz and raised the issue of “ordinary flow.”
“The commonwealth owns the bed of the river, in trust for the public,” said Dennis Whitaker, DEP supervising attorney and lead counsel.
He surmised that the river was used for commerce during periods of high flow.
How land grant procedures were carried out in the earliest days of the commonwealth comprised a large part of the argument Wednesday for each side. Whitaker also pointed to a 1794 appropriation (by that period’s equivalent of the General Assembly) for a survey of the Little Juniata — in order to grant a petition for a public highway declaration. He said the declaration is evidence of “navigability at law.”
Whitaker said that record shows Juniata Valley farmers and mill operators were looking to move their goods downstream, mostly to Baltimore, and wanted protection against impediments such as dams and fisheries. Whitaker said the trial showed there have been three public highway declarations for the Little Juniata.
“This was a river that was the lifeline of the valley and had to be used,” said Stanley Stein, an attorney representing Spruce Creek tackle shop owner Allan Bright.
Bright’s case against the club was consolidated into that of the state.
The attorneys representing Spring Ridge Club owners Donny Beaver, Stanley Hostler and Camp Espy Farms are Tim Reed of Pittsburgh and Charles Bierbach of Huntingdon.
Reed challenged that letters and newspapers from the 19th century are secondary and tertiary sources for the court although historians consider them primary and secondary sources. He said an 1800s newspaper advertisement about the platting of Birmingham and a building of a wharf there “can’t be relied on as truth” in court.
“It’s an ad,” he said. “It’s not admissible to prove what’s said therein occurred.”
Reed told the court the test for navigability and to show that a waterway was used as “a broad highway of commerce” includes the quantity of goods moved as well as travel by persons.
“It has to be trade and travel,” he said. “It has to be at ordinary flows.”
Reed said there is no evidence from the trial that there was upstream travel on the Little Juniata or of goods being warehoused before going to market. Whitaker stated that surplus goods were warehoused at that time to await high water transport.
“It’s just nice after five years to get our day in court,” Beaver told The Daily News. “It’s the uncertainty that’s the difficult part.”
Beaver said the case is significant for private landowners across the state.
“This is sort of a beginning for them,” he said. He said in the 368 instances mentioned in court where the state has claimed ownership of stream beds, landowners don’t have the rights they thought they did.
Whitaker told the court citizens were verbally harassed by the club and said the club had erected cables across the stream with “no trespassing” signs. He said even if the club voluntarily ceased those actions (as Reed reported) they could be repeated. Therefore, he said, the commonwealth seeks relief by means of an injunction. The club does permit canoeists and others to boat through the section of the river but prohibits them from stopping in the stream.
Whitaker said a DEP report shows there are 64,000 streams in Pennsylvania (86,000 stream miles) but there have been just 368 public highway declarations.
“The commonwealth is not asserting we own every river and stream (bed),” he said.