# I got a walleye today...then some more a few days later. 11/3 11/4/18.



## twistedcatfish1971 (Jul 21, 2013)

Berlin spillway...mid afternoon today. I had the whole spillway to myself lol...fished it hard for 3 hours and caught 14 fish...all smalls with nothing over 10 inches. 3 white bass 3 smallmouth 5 crappie 2 walleye and 1 channel cat. All fish caught off jig and plastic/hook and worm and slow rollin a homemade harness. Good times wading around down there in the rain...love it!

...good times and tight lines OGF!

Don.


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## rhaythorn (Oct 27, 2007)

Didn,t know you could fish there. It was closed to fishing for a while because of all the trash people left there.


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## snag (Dec 27, 2005)

It’s off limits a bit downstream from the dam, used to be a cable going across, below cable was closed off . Many years back I fished all the way downstream past the big rock, then it slowly got littered up bad and the owner had it shut down.


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## twistedcatfish1971 (Jul 21, 2013)

...don't know what's up with the sponsored content? ...pretty cool.

...anyway you can fish there...it is limited and somewhat hard to get down there...very difficult if it is raining. In my opinion if there are 8 people fishing that spillway its 4 to many lol.

...and I'm not kidding. There are signs posted but some are very old. I've fished it 15 times since march... and 6 times seen and or talked to rangers...never asked for license though just how I'm doing. It's a tight spot down there but effective when timing is right...alot of local fisherman down there during summer hours...and I've seen plenty people fishing past the colum (illegal)...

...and of course those are the times when no enforcement around. The picture was taken from center of river right at the invisible legal line across river.

Don.


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## Lewzer (Apr 5, 2004)

I was at Greenbower, Bonner and SR224 yesterday. I thought about stopping at the dam but kept going on my way to West Branch. I got to WB and the skies opened up.

Good Job.


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## guitar csar (Apr 8, 2018)

Lewzer said:


> I was at Greenbower, Bonner and SR224 yesterday. I thought about stopping at the dam but kept going on my way to West Branch. I got to WB and the skies opened up.
> 
> Good Job.





snag said:


> It’s off limits a bit downstream from the dam, used to be a cable going across, below cable was closed off . Many years back I fished all the way downstream past the big rock, then it slowly got littered up bad and the owner had it shut down.
> 
> 
> Sent from my iPhone using Tapatalk


Your license gives you the right to fish any navigable waterway. They can keep you off their property, but if you're wading I don't think they can stop you.


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## joebertin (Mar 26, 2010)

I've been told that if your floating, you're legal. If your feet are on the ground
you are trespassing. This was in a discussion about Little Beaver Creek.

If there is an expert out there, let us know...


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## snag (Dec 27, 2005)

guitar csar said:


> Your license gives you the right to fish any navigable waterway. They can keep you off their property, but if you're wading I don't think they can stop you.


You better check the laws! The landowner owns out to the middle if your wading. If it’s posted above that area , that’s what it means . Now if your in a boat you can go all over. But that particular area below Berlin does get shallow and rocky.


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## twistedcatfish1971 (Jul 21, 2013)

...I've asked rangers this year in the parking lot back in April about fishing down there @ the Berlin spillway and was told no fishing wading or from shore beyond the rock column. I said ok cool and down the hill I went.


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## twistedcatfish1971 (Jul 21, 2013)

And I then proceeded back up the hill with 4 eyes! 

Lol.

Don.


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## Pooka (Jan 30, 2012)

guitar csar said:


> Your license gives you the right to fish any navigable waterway. They can keep you off their property, but if you're wading I don't think they can stop you.


An issue near and dear to my heart.

"... Established in _Kaiser Aetna v. United States_, 444 U.S. 164, 100 S. Ct. 383,62 L. Ed. 2d 332, the tests ask whether the body of water (1) is subject to the ebb and flow of the tide, (2) connects with acontinuous interstate waterway, (3) has navigable capacity, and (4) is actually navigable. Using these tests, courts have heldthat bodies of water much smaller than lakes and rivers also constitute navigable waters. Even shallow streams that aretraversable only by canoe have met the test...."
https://legal-dictionary.thefreedictionary.com/Navigable+Waters


"...
(a)Jurisdiction over entire bed. Federal regulatory jurisdiction, and powers of improvement for navigation, extend laterally to the entire water surface and bed of a navigable waterbody, which includes all the land and waters below the ordinary high water mark. Jurisdiction thus extends to the edge (as determined above) of all such waterbodies, even though portions of the waterbody may be extremely shallow, or obstructed by shoals, vegetation or other barriers. Marshlands and similar areas are thus considered navigable in law, but only so far as the area is subject to inundation by the ordinary high waters.

(1) The “ordinary high water mark” on non-tidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the presence of litter and debris; or other appropriate means that consider the characteristics of the surrounding areas.

(2) Ownership of a river or lake bed or of the lands between high and low water marks will vary according to state law; however, private ownership of the underlying lands has no bearing on the existence or extent of the dominant Federal jurisdiction over a navigable waterbody...."

https://www.law.cornell.edu/cfr/text/33/329.11

The long and short of all that is if a stream (and in some cases a lake/pond) is navigable in fact then it is navigable in law and that there exists a public right of way that extends up to the normal high water mark. Dropping anchor or wading, and in many cases standing on the bank if you have legally accessed it, does not constitute trespass. 

If you are, or are considering becoming, a waterfront owner that is something you need to be aware of.


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## Mikj8689 (May 13, 2018)

Pooka, so are you saying that by federal laws you can indeed travel(fish) areas up to the original high water mark on foot/waders? From reading that, that’s what I have picked up unless I’m misunderstanding ? I’ve seen the debate over this many times. Going both ways, but came to conclusion that as snag stated, it is considered trespass. Is that only based off state law ?


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## Morrowtucky Mike (May 2, 2018)

Mikj8689 said:


> Pooka, so are you saying that by federal laws you can indeed travel(fish) areas up to the original high water mark on foot/waders? From reading that, that’s what I have picked up unless I’m misunderstanding ? I’ve seen the debate over this many times. Going both ways, but came to conclusion that as snag stated, it is considered trespass. Is that only based off state law ?


If you are touching the ground wether in the water or not you will get a trespassing fine. Seen it happen several times and have been told by several different wildlife officers. Was told to me the state owns the water but the private property owner owns the land it’s running on. I wouldn’t take my chances and push my luck unless your willing to spend more on a lawyer than what the fine cost. Just my 2cents.


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## Pooka (Jan 30, 2012)

Mikj8689 said:


> Pooka, so are you saying that by federal laws you can indeed travel(fish) areas up to the original high water mark on foot/waders? From reading that, that’s what I have picked up unless I’m misunderstanding ? I’ve seen the debate over this many times. Going both ways, but came to conclusion that as snag stated, it is considered trespass. Is that only based off state law ?


I am saying that is what Federal law and the SCOTUS says. 

State laws and the understanding of the Federal precedents unfortunately vary. 

Education or land owners and LEOs is better than litigation but if you wanted to push it far enough in court you should be able to win. 

The question you have to ask yourself is, How passionate are you about your rights?


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## Pooka (Jan 30, 2012)

Morrowtucky Mike said:


> If you are touching the ground wether in the water or not you will get a trespassing fine. Seen it happen several times and have been told by several different wildlife officers. Was told to me the state owns the water but the private property owner owns the land it’s running on. I wouldn’t take my chances and push my luck unless your willing to spend more on a lawyer than what the fine cost. Just my 2cents.



Yes, the reality of it is that many LEOs are grossly misinformed as to what the Federal law is.

LEO's in most all cases are not lawyers and their training in the law beyond revenue generation is often lacking. (but they will sure tell you different! LOL)


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## Pooka (Jan 30, 2012)

This is what the Ohio Stream Management Guide has to say about it. 

"...On navigable streams there is a public right of navigation, spelled out originally in the Northwest Ordinance, which states that navigable waters shall be common highways, forever free to the people of the United States. On such streams, boaters have the right to navigate on the stream, regardless of who owns the land beside it. Because of this, some have claimed that the owners of land beside a navigable stream do not own the land beneath it. But Ohio courts have long held that the owners of the land on the banks of a navigable stream are also owners of the beds to the middle of the stream, as in the common law.4..."

That is obviously in conflict with Federal law (Fed law trumps State law) and SCOTUS precedent but will likely be the default POV of Ohio LEOs.


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## Mikj8689 (May 13, 2018)

Thanks pooka. Just checking to see I understood your post correctly. I do not intend to just push my luck on the issue. Hypothetically though, should a person end up in questionable area and be confronted, maybe they would get off with a warning showing how the two conflicting laws caused some confusion. Lol. Worst case scenario a pricey life lesson. Lol. Many many times while fishing from shore I find myself wandering to new areas in search of that spot not many are willing to venture to


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## Pooka (Jan 30, 2012)

Mikj8689 said:


> Thanks pooka. Just checking to see I understood your post correctly. I do not intend to just push my luck on the issue. Hypothetically though, should a person end up in questionable area and be confronted, maybe they would get off with a warning showing how the two conflicting laws caused some confusion. Lol. Worst case scenario a pricey life lesson. Lol. Many many times while fishing from shore I find myself wandering to new areas in search of that spot not many are willing to venture to


I took no offence, I hope it did not come off sounding that way.

I just wanted to be clear about what the "realities on the ground" are. -Yes you legally can but Local and State authorities often don't see it that way. --Our older 2nd Amendment advocates will be familiar with this kind of a legal mess. 

I think the simple way to look at it is to view it as a road right of way. Here in WV the State claims 16ft from the center line of one or two lane road as an ROW. In practical terms that means that the public can use (non destructively) a portion of your property that is adjacent to the road. 

Same difference with navigable waters (highways in common law that predate land titles) except the easement extends to the ordinary high water mark. Which makes sense as while under water that area becomes navigable, at least in theory. 

I know that some riparian land owners claim this amounts to a "taking" of their property but the reality is that they never had exclusive rights to that portion of the land.

--I own and pay taxes on 200 ft of non navigable creek however I am also legally restricted in what I can do with it without a permit. I cannot legally dam, bridge, dredge, alter, or even clean debris from the bank, channel, or streamflow. That is just the legal reality. 
If I do any of those things without a permit and my downstream neighbors are in some way harmed on account of it, then I am liable for their damage as well as civil and possibly criminal penalties. -- 
Point being, no one "took" that from me, it is what I bought when I purchased the land with a creek.

Anywho, the ROW on navigable water exists and anyone who prevents you from using it is taking your rights. 
Any outdoors person (not just anglers) should be upset about that just the same as any 2nd Amendment advocate should be upset about a taking of their right to carry a firearm in public.

I apologize to the OP for the thread hijack but I am passionate about the issue of water access rights and I hope others will become so as well.


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## twistedcatfish1971 (Jul 21, 2013)

...11/03/18 and 11/04/18 update with my weekend of fishing/catching @ Berlin spillway.

11/03/18...fished the spillway from 3:45 pm to 5:45 pm. Water 51° and river height at time was around 2.60 according to Google river gauge. Water high and moving pretty good...I could not wade to other side so stayed down below ledge by the " pipe" ...some of you know where I'm talking about lol. 3rd and 5th cast got 2 walleye. Both smalls 9-10" alittle later 2 more short eyes @ 14". Shortly after wading down to legal/illegal spot slammed 2 more eyes...again short fish @ 12" and 10". Not too bad a day as all fish were eyes. All fish came from 1/8th to 1/2 oz. jigs with 3" plastic bodies. Actually 1 fish I got off a 4" KEITECH swing impact in white. <ribbed bodied >

11/04/18

7:30 am to 9:30 am...river still same as I left it the day before. Fished same program as Saturday jigs with plastic. This time I used more 4" bodies with larger and more <expensive > jig heads LOL. almost immediately FISH ON...15 1/4 eye...15 minutes later 14" fish. Now the fun begins...around 8:30 the siren on the dam goes off...now I've been through this scenario earlier this past summer. I'm down by the pipe and have all my gear on that rock ledge and I'm in the water up to mid thigh. Within 10 minutes water is up at least 6 inches and is moving strong...I pack everything up and head up to the top. After casting from top and having my jig just float back on top I slide back down by pipe. Water is right up to my waist but doable fishing wise. I fish for about 25 minutes and catch 2 more eyes @ 14" and 16 1/4.

In the end after 2 trips I got 10 eyes with 2 keepers and 2 other eyes that came unbuttoned. I also walked out of there with an amazing sight of 2 mature bald eagles flying up river and over the dam.

...had the whole place to myself both trips. Well I did see 2 workers/rangers walking around the top of the dam today.

...stay twisted...if not I will 4 ya!

Don.


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## johnboy111711 (Apr 7, 2004)

I was fishing main lake. I heard the siren. Always hope everyone can make it to high ground in time! glad you had a few good trips.


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## bdawg (Apr 14, 2009)

Looks like you have some things figured out there! I was fishing a different spillway a month ago for smallies and hooked into a surprise 17" walleye. First one I've caught there. The water was running high and fast that day, but the it was not too murky. Best bait that day was a small vibrating blade bait. Caught the walleye and most of the smallmouth on it. Best thing about these baits is they will get down in those deep holes where the bigger fish stay and the flash and vibration will trigger a strike! Unfortunately, I lost 4 blade baits that day, but I caught fish! Give it a try next time you're down there. My favorite one is the Johnson's thinfisher in silver with blue on the bottom.


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## dlancy (Feb 14, 2008)

What size blades do ya like the best, 1/2 or 1/4?


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## johnboy111711 (Apr 7, 2004)

3/8 to 3/4


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## louisvillefisherman (Jun 9, 2012)

Great story, awesome report and this thread is rich with information.

Last month during the 75th Anniversary tour of the dam, there were some waders fishing that same location.

Then it came time for the dam operator to demonstrate the opening of the flood gates. So they turn off the ring jets and the entire area becomes spooky quiet. Then like a scream in the silence, the siren starts howling and the gates begin to lift creating a flow of Berlin Lake water cascading down the skirt of the dam.

I immediately looked downstream to gauge the reaction of the wader and to my surprise he kept on fishing as if it was no big deal (which it wasn't). Turns out that lifting the gate a total of 6 inches was the equivalent of what the ring jets were outputing therefor not creating a change in flow.

If it were me down there and I had no idea what was about to happen I would have been making for the shore asap LOL! (with a hell of a story to tell my wife when I get home about the time I almost got swept away by the dam <wink>)


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## bdawg (Apr 14, 2009)

I'm not sure of the weight of the blade baits, but I use the smallest one you can buy for low to moderate water levels and the next biggest one for moderate to high water. Hooked a pike once on a 4" long blade bait once though. That was in a pond next to the river. In a river, you don't need to get very deep, and the bigger ones will sink into the rocks and snag easier. They sink much faster than jigs so you have to keep them moving faster. Sometimes, you don't even need to cast. Just jig the blade bait on a long pole in the fast current. Let the current take the blade back and down and then jig it back up. I've had the fish hit the blade on the fall and on the start of the jig back up. The blade baits are great for mining a deep hole with fast current. You hit depths that most people don't reach when drifting a jig thru or casting a spinner or spoon and retrieving. Sometimes you strike gold! 

Last time out, my buddy was jigging a blade and struck into a huge fish, but it got off right away. He reeled the lure in and there was 1 giant fish scale attached to the hook from a carp!


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## twistedcatfish1971 (Jul 21, 2013)

This is the release of water sunday morning after I left. 11/04/18.

Don.


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