Cole Konopka 

This Note argues that the enactment of the newly proposed Pennsylvania House Bill 2357 (HB 2357) will significantly alter the rights of private riparian landowners by unconstitutionally taking private land and opening it up to the public.

On June 14, 2014, Pennsylvania House of Representatives’ Dan Moul proposed Bill 2357, an amendment seeking to increase fishing opportunities for the public.[1] The amendment states that “[a]ny water in this Commonwealth stocked with fish furnished by the commission, including water areas where stocked fish may migrate into, shall be open to the public for the purpose of free lawful fishing.”[2] Currently, because waters in Pennsylvania are deemed non-navigable unless decided otherwise via the court system, landowners bordering waters popularized by angling can restrict access or demand additional payment.

Anglers in Pennsylvania must purchase a license from the state to fish its waters.[3] However, private landowners also have the unique ability of charging additional fees or requiring separate licenses to fish waters flowing through their property.[4] The amendment seeks to eliminate this “loophole” in the current regulations. By doing so, the amendment will take ownership of streambeds away from private landowners. If enacted, HB 2357 will open more waters for public use at the expense of private landowners.

Focusing on Colorado and Montana’s respective water laws, the Note focuses on specific aspects of Pennsylvania’s water laws that need updating. Pennsylvania can avoid riparian landowner lawsuits against the state and the potential clogging of the court system by abandoning HB 2357 altogether and adopting a modern navigability-in-fact test. If Pennsylvania were to follow the “recreational” test for navigability used in Montana, the Commonwealth could achieve its goal of granting more public access to waterways and avoid the issue of unconstitutional takings.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1] See Memorandum from Rep. Dan Moul on Proposed Legislation to All House Members (Mar. 27, 2014) (on file with author) (discussing his intent to propose House Bill 2357 to the House of Representatives in the upcoming months).

[2] H.B. 2357, 2014 Gen. Assemb., Reg. Sess. (Pa. 2014) (emphasis added).

[3] See Pennsylvania Fish & Boat Commission, Frequently Asked Questions: Fishing Licenses, http://fishandboat.com/faqlice.htm#1 (last visited Mar. 30, 2015) (“Do I need a license to fish in Pennsylvania? Yes. A current Pennsylvania fishing license, signed in ink and displayed [], is required of persons age 16 and over to fish or angle for any species of fish.”).

[4] See generally Fish Erie, Descriptions of Pennsylvania Streams in the Lake Erie Watershed, http://www.fisherie.com/Stream-Descriptions (last visited Mar. 30, 2015) (discussing that the public can pay a fee to park and fish on a private stretch of Elk Creek).