kayakfun
New member
I agree and on top of that I have seen Tobyhanna listed as a public highway so even the streambed should be legal, if one were to get stuck and need to stand up.
Tobyhanna Creek public access
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kayakfun
New member
I thought I was replying to you directly, but answered your questions in a reply to another member.
Not true. Bad advice to members on here. Please read the posts in this thread as well as the actual law itself.
Any of the streams on the list of are not valid unless or until a court case about navability of the stream is won before ownership is deemed to be public.
That's why the court case about the navability of Lehigh River was recently adjudicated as well as the Little Juniata.
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bingsbaits
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A question on the navigability law to some of you better informed.
The court has to rule the stream navigable.
Does one have to be arrested for Trespass and then fight it in court to get a stream deemed navigable ??
Or could some one with deep pockets and good lawyers take it to court without a plaintiff ??
The court has to rule the stream navigable.
Does one have to be arrested for Trespass and then fight it in court to get a stream deemed navigable ??
Or could some one with deep pockets and good lawyers take it to court without a plaintiff ??
I don't think anyone was arrested in either the Little Juniata or Lehigh River case.
Police are reluctant to arrest anyone in these cases, because it is not known whether the person is breaking the law or not.
On the Little Juniata River, a few years before the court case, there was a "fish in" below the village of Spruce Creek. Several fishermen fished the posted stretch. A state policeman watched the whole thing but did not arrest anyone. And for good reason. It was not clear whether or not they were breaking the law.
At that point the navigability status of the LIttle Juniata was unknown.
At this point, the navigability of Tobyhanna Creek is unknown.
kayakfun
New member
So how do you reconcile that statement to this...
Attachments
From your highlight above "See note on page 6" which explains publicly owned streams must be litigated in court to become valid.
It's an opinion by DCNR. That is a different thing from law.
Does the Fish and Boat Commission determine which waters are navigable and therefore public?
No. Only a court can decide. No agency, including the Fish and Boat Commission, is authorized to determine navigability by administrative action.
Public / Private Access
Information about public and private access, landowners and more.
www.pa.gov
vealboy
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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..........
There was an arrest in the Lehigh River case for trespassing,and it took 5 years settle.A Mr Andrajuski (not sure on the spelling) vs whatever club owns the water downstream of Rt 115.I think it was the Dream Mile Club or Lehigh Falls.I'm old and don't remember things like I used to.
Tigereye
Well-known member
I have a question... the Lehigh river is settled case law and a destination river for many white water enthusiasts. Why poke the bear on the Toby? Is it just a bucket list thing or are you willing to risk the expense and years of mental turmoil to prove a point? If you are, Godspeed we appreciate your efforts.
Again, i am not a member of any club, have no property in the area, nor any vested interest other than seeing a court rule in favor of public access to PA waterways. You are free to do what pleases you.
Again, i am not a member of any club, have no property in the area, nor any vested interest other than seeing a court rule in favor of public access to PA waterways. You are free to do what pleases you.
lars
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fwiw, the 5 mile section of the toby that is "owned"/ posted by the pocono lake preserve community starts coming out of the lake (which they also own) from a large dam. not sure how you would get access as the community is gated. i suppose you could get in from adjacent neighborhoods dragging your kayak thru the woods. that would definitely require trespassing on the land.
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jeffroey
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I'll throw a little fuel on this fire. I think the "DEP'S LISTS OF STREAMS SUBJECT TO
THE SUBMERGED LANDS LICENSE PROGRAM" sums it up perfectly . . . the definitive answer to your question is a solid "maybe."
According to this document (marked DRAFT by the way) "Tobyhanna creek, in the county of Monroe, from the river Lehigh to the junction of the Tunkhanna" was historically declared a "public highway" and therefore used for commerce since April 16, 1838. The Pennsylvania Department of Environmental Protection (DEP) leverages that designation as evidence of Commonwealth ownership of the submerged stream beds under the Dam Safety and Encroachments Act.
Before the OP drops a few hearts on this post, the document's introduction states plainly that the table of waterways contained within it are not a final legal determination of whether a stream is navigable under federal or state law. So, like @afishinado already said, in Pennsylvania, a definitive legal declaration of navigability can only be made by a court.
You're not going to get a more solid, unambiguous, crystal clear "Maybe" from any other published source IMO.
I guess if I wanted to start legal proceedings to turn a maybe into a definitely (one way or the other), I'd first be looking here to see if the stream in question was listed and decide my next steps from there.
It probably wouldn't be walking in with a rod strung up quite yet but you may be able to float down it in a canoe 🙂
THE SUBMERGED LANDS LICENSE PROGRAM" sums it up perfectly . . . the definitive answer to your question is a solid "maybe."
According to this document (marked DRAFT by the way) "Tobyhanna creek, in the county of Monroe, from the river Lehigh to the junction of the Tunkhanna" was historically declared a "public highway" and therefore used for commerce since April 16, 1838. The Pennsylvania Department of Environmental Protection (DEP) leverages that designation as evidence of Commonwealth ownership of the submerged stream beds under the Dam Safety and Encroachments Act.
Before the OP drops a few hearts on this post, the document's introduction states plainly that the table of waterways contained within it are not a final legal determination of whether a stream is navigable under federal or state law. So, like @afishinado already said, in Pennsylvania, a definitive legal declaration of navigability can only be made by a court.
You're not going to get a more solid, unambiguous, crystal clear "Maybe" from any other published source IMO.
I guess if I wanted to start legal proceedings to turn a maybe into a definitely (one way or the other), I'd first be looking here to see if the stream in question was listed and decide my next steps from there.
It probably wouldn't be walking in with a rod strung up quite yet but you may be able to float down it in a canoe 🙂
kayakfun
New member
We are talking about different sections of the creek. I am talking about the section along 940 that runs in from the Austin Blakeslee Natural Area. Very public entry... heading down to Walters Dam. If I wanted to access the area you describe, I would enter the lake off 940 just past Bradys Lake... but that was not my goal.
kayakfun
New member
Can anyone tell me about these, I assume "bridges" in the dream mile club? Could they be navigated under in a kayak? Any insights appreciated. If I can pass through these waters on a boat, which I believe I can, I would hate to have to get out to port around them, thus creating an opportunity for tresspassing.
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bingsbaits
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It says "In a court of Law"".. How high up of a court does it have to be ?
Could a fella with deep pockets go after say ""Oil Creek" and shop for a willing judge ??
Would not be hard to prove Oil Creek at all.. Actually lots of photos.
Could a fella with deep pockets go after say ""Oil Creek" and shop for a willing judge ??
Would not be hard to prove Oil Creek at all.. Actually lots of photos.
wildtrout2
Well-known member
IDK, but wouldn't it be much simpler to choose a waterway where you KNOW access isn't a potential issue? All of the back and forth regarding navigability would take the fun out of it for me. Is fishing the Toby that good?
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SBecker
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Big stockers, duh.
wildtrout2
Well-known member
Plenty of Keystone Select Waters with big stockers, where potential trespass isn't an issue.
tomgamber
Well-known member
First one looks like an actual bridge. Second one looks like a causeway. Would require a portage.
