Tobyhanna Creek public access

FishLips

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Hello all. The topic of public access to the Lehigh River has been discussed here and at this point it's pretty clear that the water and the stream bed up to the high water mark is publicly owned (obviously while the public has the right to fish and boat on these "navigable" waters, this does not grant permission to trespass across private property to access them).

According to two online sources the Tobyhanna is also classified as a publicly-owned stream, same as the Lehigh.

1. ARCGIS map of PA navigable waters: https://www.gis.dcnr.state.pa.us/agsprod/rest/services/BOF/Nav_waters/MapServer

2. PA DCNR list of publicly-owned streambeds (PDF): https://share.google/MzjnWJkPRYUxNeczg


Here are some relevant excerpts from Pennsylvania's guidelines.

So which waters are considered to be public?


Public waters include the great or principal rivers of the Commonwealth. The Pennsylvania Supreme Court in Shrunk v. Schuylkill Navigation Company in 1826 defined the great rivers to be the Ohio, Monongahela, Youghiogheny, Allegheny, Susquehanna, and its north and west branches, Juniata, Schuylkill, Lehigh and Delaware. Public waters also include "legally navigable" rivers, streams and lakes.


What makes a river, stream or lake navigable for legal purposes?


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.

Does that mean that a waterway must currently be used for commercial purposes in order to be navigable?


No. The test for navigability is not a contemporary test. It's a historic test that goes back to when William Penn was granted charter to Pennsylvania. Pennsylvania courts place particularly emphasis on a waterway's use during the late 18th and early 19th centuries – prior to the invention of modern modes of transportation and at a time when the only significant routes of travel, trade and commerce were on waterways.


What if a water that was used for commerce during the late 18th and early 19th centuries is no longer used for commercial purposes today?


It doesn't matter. The test of navigability is rooted in its historical use.


Does significant recreational use make a waterway navigable?


No. Only commercial use is considered by the courts.


Who owns public waters?


The title to the beds of public waters is held in trust by the Commonwealth of Pennsylvania for the benefit of the public. In case of rivers and streams, the Commonwealth's ownership extends to ordinary low water mark, and the adjacent riparian landowner owns above the high water mark. An easement exists in favor of public between high and low water marks. That easement includes the right to fish. In case of lakes, Commonwealth's ownership encompasses the mean pool of lake.


How much of a navigable waterway does the Commonwealth own?


When it comes to navigable waters, Pennsylvania courts have said that the Commonwealth's ownership extends to the ordinary high water mark, and the adjacent riparian landowner owns above the ordinary low water mark. An easement exists in favor of public between the high and low water marks. That easement includes the right to fish.

The courts have defined the low water mark in this context as the height of water at ordinary stages of low water unaffected by drought and unchanged by artificial means. The best advice is to tell the public to stay as close to the water as possible or if they want to be safe to stay in the water. If they don't venture on to upland properties, they'll be OK. The fact that a waterway is deemed navigable does not give the public unfettered access to people's riparian lands nor permission to trespass in order to gain access to a waterway.


What rights does the public have in public waters?


The rights of the public in public waters are quite broad and extend to fishing, boating, wading, floating, swimming and otherwise recreating.
 
So if I'm reading this correctly. I could go in at the Blakeslee nature area and technically fish all the way to the Lehigh proper as long as I'm in the stream bed itself.
 
Just cause you can doesn't mean you should. I have no dog in the fight; however, the landowners, Sportsman's clubs etc will certainly call you out. The ensuing yelling, arguments, confrontations with DCNR, PaFBC, PaSP, Sheriff, and ongoing legal procedures/expenses to confirm your rights will take years to come to fruition.

Juice ain't worth the squeeze.

Not fair but it is reality.
 
The Lehigh's navigability was determined in court, so that is rock solid.

I don't think that is the case with the Tobyhanna. The DCNR is just expressing their OPINION, but that does not have the force of law.

Until there is a court decision, or an act of the state legislature, the navigability status of the Tobyhanna is unknown.
 
The Lehigh's navigability was determined in court, so that is rock solid.

I don't think that is the case with the Tobyhanna. The DCNR is just expressing their OPINION, but that does not have the force of law.

Until there is a court decision, or an act of the state legislature, the navigability status of the Tobyhanna is unknown.
Exactly right ^

Good advice not to assume the Toby is public water unless you plan to trespass in a private held section of the stream, get arrested for trespassing, and try to settle the case in court by hiring an attorney to prove it's "navigable" water based on its history.....and win the case!
 
So if I'm reading this correctly. I could go in at the Blakeslee nature area and technically fish all the way to the Lehigh proper as long as I'm in the stream bed itself.

Yes, according to the two sources which I posted as well as the ARCGIS map posted by KMS.
 
Just cause you can doesn't mean you should. I have no dog in the fight; however, the landowners, Sportsman's clubs etc will certainly call you out. The ensuing yelling, arguments, confrontations with DCNR, PaFBC, PaSP, Sheriff, and ongoing legal procedures/expenses to confirm your rights will take years to come to fruition.

Juice ain't worth the squeeze.

Not fair but it is reality.
Exactly. From a legal/financial standpoint, it's not worth testing the water. Pun intended.
 
Watching.jpg
 
Just cause you can doesn't mean you should. I have no dog in the fight; however, the landowners, Sportsman's clubs etc will certainly call you out. The ensuing yelling, arguments, confrontations with DCNR, PaFBC, PaSP, Sheriff, and ongoing legal procedures/expenses to confirm your rights will take years to come to fruition.

Juice ain't worth the squeeze.

Not fair but it is reality.
I know what your saying. It just feels like the bully's win again. And as we've seen recently, courts can change their minds.
 
i've fished on some of the private waters on the Toby. pocono lake preserve has 5 miles of the stream that they have posted and i do not believe you can legally fish it.
 
Exactly. From a legal/financial standpoint, it's not worth testing the water. Pun intended.
I am on a mission to kayak. The 3 streams that lead to Walter's dam. I've completed the Lehigh. I am looking to do the Tobyhanna creek, and at some point I'd like to take on Bear Creek, very curious about this conversation because I recognize kayaking, a slightly different from a legal perspective for going through private lands, every conversation I've had with the indicates I should be able to kayak on the creek, but at the same time, the dream mile club was all kinds of signs, claiming they would not allow it. I'm very open to any thoughts you'd have on kayaking Vesus fishing down the Tobyhanna, creek through that area.
I am on a mission to kayak the 3 tributatires to Walter Dam. (Understand I am not a high end kayaker. I own sit on topbkayaks and just like being in the water that moves.). I've completed the Lehigh from Thornhurst. I am looking to do the Tobyhanna creek, and at some point I'd like to take on Bear Creek, very curious about this conversation because I recognize kayaking, a slightly different from a legal perspective for going through private lands, every conversation I've had with the indicates I should be able to kayak on the creek, but at the same time, the dream mile club was all kinds of signs, claiming they would not allow it. I'm very open to any thoughts you'd have on kayaking Vesus fishing down the Tobyhanna, creek through that area.
 
Curious on how the float was on lehigh from thornhurst. What month did you float and how many times did you have to get out of kayak to maneuver around obstacles?

With regards to floating the Toby through private stretches, you could probably get away with it without anybody noticing just choose the right months and time of day.
 
As I understand it,the state owns all flowing water.As long as you don't touch the streambed you are legal regardless of who owns the streambed.
 
As I understand it,the state owns all flowing water.As long as you don't touch the streambed you are legal regardless of who owns the streambed.
Is there a law that states this? If so, post it up.

Chapter 105 SLLA Regulatory Authority​

All water in all streams in Pennsylvania are “owned and held in trust by the Commonwealth for the benefit of the public.” A subset of all streams are streams where the Commonwealth also owns the streambed because the streams were historically navigable and were declared “public highways” by the General Assembly in the late 1700s and early 1800s. This subset of streams is identified as the Navigable Waters of the Commonwealth..........

 

Chapter 105 SLLA Regulatory Authority​



The webpage contains a link to "DEP'S LISTS OF STREAMS SUBJECT TO THE SUBMERGED LANDS LICENSE
PROGRAM" which is described as "a starting point for determining if a stream is subject to the SLLA requirements under the Dam Safety and Encroachments Act and as a listing of those streams for which the Commonwealth may claim ownership of the associated submerged lands."

Page 24 of the document (printed page 157) specifies the Tobyhanna.
 
The webpage contains a link to "DEP'S LISTS OF STREAMS SUBJECT TO THE SUBMERGED LANDS LICENSE
PROGRAM" which is described as "a starting point for determining if a stream is subject to the SLLA requirements under the Dam Safety and Encroachments Act and as a listing of those streams for which the Commonwealth may claim ownership of the associated submerged lands."

Page 24 of the document (printed page 157) specifies the Tobyhanna.
Not valid unless or until a court case is won before ownership is deemed to be public....
 
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As I understand it,the state owns all flowing water.As long as you don't touch the streambed you are legal regardless of who owns the streambed.
I have done the Lehigh multiple times now. My primary option enters the water in Thornhurst at a very small section of Pinchot State forest that has Lehigh access. I exit just before 115 at the water measurement site at Stoddartsville (left side down stream). That section alone takes a few hours depending on water levels, and size / quality of paddlers

I have done it w levels as low as .6 (I do not recommend) there is a lot of scraping. .9 and up provide for decent flow and little scraping. Get to 1.2 and over and you get some good kayaking. (Relatively speaking) all my kayaks are sit on top low-cost models. I grew up doing a lot of canoeing and have done that section in a canoe as well.

I have done the lower half from Stoddardsville to Walters a few times but the falls complicates that journey and the last hour is paddling the still water of the dam.

Tobyahanna Creek I have done entering at Blakeslee preserve, porting the falls on the right (public lands) but we aborted at 940. I was w an inexperienced kayaker and the "private" signs of the club dissuaded us from continuing. (I also recognized how long it would take w an inexperienced paddler so I was ok abandoning in that situation.)

I have seen (Google maps) what appear to be 2 obstacles in the Dream Mile Club that may complicate the journey. A red bridge type structure (walking?) and another ?bridge? just beyond it that appears to be for cars. If we can't float under them, it would complicate the legal questions of tresspassing.

The Dream Mile club signs which can be read from 940 I believe explicitly address boats "tresspassing" but I do not believe they have legal authority to back their claims. I also have no idea if they have a local p.o. who is connected to the club and would throw their weight around if called out. Tobyhanna is listed as a public waterway and should be legal as I would be passing through, entering and exiting at legal points. My biggest concern is those "bridges" if anyone has insights.
 
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