REVISE: Court Ruling Favors the State in Decade-Long Dispute Over Little Juniata River

Sheila Berninger

Civil Case REVISE

Huntingdon County, Pennsylvania-Judge Stewart Kurtz of the Huntingdon County Court of Common Pleas Monday ended a property dispute that has lasted more than ten years between three Commonwealth of Pennsylvania agencies and several owners of land adjacent to the Little Juniata River.

In a 56- page opinion, the judge ruled in favor of the Commonwealth, stating that the river is state-owned property and accessible to the public.

“This decision confirms that the Little Juniata River is a water to which the public is entitled to access for use and enjoyment,” Meg Murphy, Assistant Counsel, Office of Chief Counsel, DEP, said of the judge’s ruling in favor of the state. However, Donny Beaver, Jr., operator of the Spring Ridge Club, who argued on behalf of the defendants, says that private ownership of the waters will be more likely to preserve them.

On January 21, 2006, Beaver was quoted in The New York Times as saying, “Our goal is to save these trout streams from being sprawled into another shopping mall, like the one that got built near the headwaters of the Little J (Little Juniata River). They’re better off in our hands.”

Beaver and the other defendants may not be quick to abandon their views in spite of Judge Kurtz’ decision.

“It is not clear at this point whether Mr. Beaver or the other defendants intend to file an appeal,” Murphy said.

Beaver’s attorney, Charles A. Bierbach, could not be reached for comment.

The state, Department of Environmental Protection (DEP), Department of Conservation and Natural Resources (DCNR), and Fish and Boat Commission (FBC) first filed suit in June 2003 against a group of Huntingdon County residents and a fishing club who claimed that they had ownership rights to the Little Juniata River. The complete list of defendants includes property owners Connie L. Espy, Camp Espy Farms, Donald L. Beaver, Jr., Hidden Hollow Enterprises, Inc., Paradise Outfitters, Legacy Conservation Group, LLC., Spring Ridge Club, Angling Fantasies, LLC, and Bellwood-Antis Enterprises, Inc.

The Little Juniata River, considered by residents to be a renowned Pennsylvania fishery, is approximately 32 miles long. It is situated on the north side of the city of Altoona and flows through Huntingdon County. Spruce Creek flows into the river.

In its initial complaint to the court, the state agencies claimed that the defendants verbally and physically harassed members of the public who fished or waded in the 1.3 mile section of the river adjacent to their properties. The defendants also hung cables with “No Trespassing” signs at the upstream and downstream ends of their property and on the riverbanks.

The state made several complaints about the landowners behavior before filing suit last year. Local law officials claim that they received complaints about the landowners trying to restrict the public use of the river since the 1990s. Several people who tried to access the river testified that the landowners filmed or photographed them, claiming that they would report them to the authorities for trespassing. Others claim that the landowners cursed at them and threw rocks.

Up to that point, the river had been known as a great fishing spot. In response to the public’s complaints, DEP sent two letters, one on March 27, 2002, and another on June 17, 2002 notifying the landowners that the river is state-owned and open for public use.

The state first filed complaint against the owners of the land adjacent to the river in June 2003. The landowners responded in January 2004 by presenting an argument declaring their right to ownership to the river in common pleas court. The state contended that the landowners had right to the land, but not the river itself. A nonjury trial was held in Huntingdon County Court of Common Pleas from June 12-16, 2006. A decision was not reached at trial and the court ordered on September 21, 2006 that both parties must submit written reports supporting their arguments to the court by November 20, 2006.

To back up its case, the state cited the Pennsylvania constitution which mandates that “Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come.” The state also argued that owners of land along navigable banks of bodies of water like the Little Juniata River do not have exclusive rights to use of the river. This law was enforced in an 1826, Shrunk v. Schuylkill Navigation Co., in which a navigable waterway was defined as any waterway that can transport goods or serve as a mode of travel.

According to state law, a navigable waterway cannot be privately owned. In addition, the state argued that navigability must be evaluated through the eyes of the 18^th and 19^th century America, prior to the invention of modern day modes of transportation, because that is when the river was used as a significant route of commerce.

The plaintiffs cited historical evidence about the Little Juniata River from Huntingdon Gazette newspaper articles dating back to the 1700s, which purportedly moved that the river was used to transport goods from grist mills, saw mills, distilleries, a nail factory, tan yards, and a forge.

Cathleen Curran Myers, Department of Environmental Protection Deputy Secretary for Water Management, testified that the Little Juniata River is in fact a navigable river. Myers also testified that the defendants and everyone supporting their actions violated of the Dam Safety Act because they strung cables across the river and hung signs. The Dam Safety Act prohibits people from crossing a stream with any material, such as cables or a sign. Dr. Judith A. Heberling, a professional historian for 30 years, testified that the Little Juniata River was transportation highway for commercial and agricultural products during the 18^th and 19^th century, thus making it a navigable waterway and public property.

The defendants’ historian, Nancy Shedd, investigated the historical use of the river as a highway of commerce for people and goods. She found that the river was only useful to transport people and goods when the waters were at flood level. In her testimony, however, she acknowledged her “somewhat unconventional training…in history”, according to the state’s report filed with the court. Other testimony delivered by the defendants supported conclusions about the current geological state of the river, not its history, according to the state’s report.

History played a huge role in the Judge Kurtz’ decision. Based on the state’s argument, Judge Kurtz found that the Little Juniata River meets the test for historic navigability. He also found that the landowner’s titles are limited to the shores of the river by virtue of the 1794 public highway declaration, which states that the river is for public use. The declaration went into effective nine years before the landowners’ predecessors acquired their properties. In light of the major focus on preserving nature in the present day U.S., this case could symbolize a crossroads between the freedom to natural resources that this country has enjoyed since its beginnings and the property ownership and privacy frenzy that has taken hold nationwide.