The Sandoval Signpost

An Independent Monthly Newspaper Serving the Community since 1988


Watch the river flow: in Colorado, a national park wins a water claim

The Black Canyon of the Gunnison needs a good scrubbing. Ever since 1965, when the first of three dams blocked the Gunnison River upstream of the western Colorado national park, the two-thousand-foot-deep canyon has missed the regular spring floods that are necessary for its ecological health. Tamarisks and other plants have taken over sandbars that were once swept clean every year or two. “You can actually date some of the trees down there to right when one of the dams was put in,” says park ranger Danguole Bockus.

But more regular spring cleanings are on the way. Thanks to a mostly-finalized agreement between the National Park Service, the state of Colorado and environmental groups, the Black Canyon will get an annual peak-flow event—a one-day man-made flood—plus eighty-five days of high flow timed to coincide with spring runoff. The rest of the year, the river will have a minimum flow of three hundred cubic feet per second to help sustain its world-class trout fishery.

The agreement is the product of more than three decades of litigation hinging on one of the most contentious questions in Western water law: Does the federal government have the right to water for federally-owned lands? The water-rights struggle between states—the traditional arbiters of water disputes—and the federal government—which often needs water to accomplish its land-management goals—has lasted more than a century. But over the past few decades, the federal government has become increasingly willing to cede control over water to the states. And water-rights compromises on measures designating new national monuments and wilderness areas may mean that, in the future, conservation groups will have fewer options for protecting in-stream water flows than they did in negotiations over the Black Canyon. The battle over state versus federal control of water makes, as Boise environmental lawyer Jeff Fereday puts it, “a long and interesting tale.”

In 1908, the U.S. Supreme Court ruled that the federal government, in creating a reservation for Montana’s Gros Ventre Tribe, had also given the tribe enough water to farm its reservation. Sixty years later, the court extended the principle, stating that when the federal government put land under the control of a federal land agency, it implicitly gave that agency a claim to enough water to accomplish its management goals. These federal water rights dated to when the government first set aside the land, an important detail in Western states, which have “first in time, first in right” water regimes.

The high-water mark for federal water rights came in 1976, when the Supreme Court ruled that Death Valley National Monument had the right to enough water to sustain its population of endangered desert pupfish. Two years later, though, the Court held that since ecological preservation was not the “primary purpose” of Forest Service land, the national forests had no right to water for ecological purposes. National parks, monuments, and wildlife areas could still claim water for recreation or wildlife, but the Forest Service and Bureau of Land Management could claim it only for timber production, livestock watering, or channel maintenance.

But the biggest blows to federal water rights have been legislative rather than judicial. A 1952 federal law established that federal agencies must claim water rights through state court systems and can appeal to federal courts only in extraordinary cases. The result has been a patchwork of state-by-state legal precedents. The Idaho Supreme Court, for example, does not recognize water rights for wilderness areas unless the bill designating the wilderness explicitly claims water. More and more, federal water rights have become the subject of open legislative debate. “The era of silence is over,” says John Leshy, professor of water law at the University of California’s Hastings College of the Law. “Both sides have now come to the view that we have to address these things in legislation.”

Over the past two decades, bills creating national parks, monuments, or wilderness areas have been explicit in asserting or denying a federal claim to water. A recently introduced bill to protect Idaho’s Owyhee wilderness, for example, renounces a federal claim to water for the wilderness and limits the water claimed for the area’s wild and scenic rivers.

The Black Canyon’s newly guaranteed flows, expected to get final approval by late summer, rest on the fact that Herbert Hoover did not sign away the canyon’s water when he designated it a national monument in 1933. As a result, the park (upgraded from monument status in 1999) has an implied federal water right that formed the basis for thirty years of negotiation over the canyon’s water. Anglers and environmentalists pushed for higher flows; ranchers and hydropower operators wanted to keep water behind the dams. When a 2003 backdoor agreement between the state and the Interior Department forfeited the park’s claim to peak and shoulder flows, conservation groups challenged it in federal court.

In 2006, Judge Clarence Brimmer voided the agreement, saying that it had been made without adequate environmental analysis and represented an unlawful disposal of federal property. “They were able to persuade a federal judge that a very valuable public resource had been given away,” says hydrology consultant Dan Luecke (a High Country News board member).

Brimmer’s decision forced a resumption of negotiations that resulted in the current compromise agreement. The agreement does not guarantee peak flows in the driest years, but attorney Bart Miller, who represented environmental groups in the negotiations, says it’s a big improvement over the 2003 deal, which would have provided “just enough to keep the backs of the fishes wet.” The Black Canyon agreement is “an enormous victory” for stream preservation, says Luecke. But in the new water-rights era, the decision to limit or permanently give up the federal claim to water often happens before a national monument or wilderness area is even created. And that means that the Black Canyon case may turn out to be one of the last of its kind.


Two weeks in the West: solar flip-flops and fish stories

Summer in the West‘s deserts always feels a bit chaotic. This summer, it’s more than just the seasonal wildfires and strange cactus blooms—it’s also obvious in the federal government’s waffling on energy policy.

Clean-energy advocates were stunned on May 29, when the Bureau of Land Management (BLM) announced that it would not accept any more proposals for new solar power plants on millions of public acres in California, Arizona, Nevada, Utah, New Mexico, and Colorado. Not only do solar plants make electricity without global-warming emissions; the BLM’s deserts are the solar industry’s sweet spots. The BLM said its bureaucracy is overwhelmed by more than one hundred solar applications, and it needed a two-year time-out to process those proposals and study the potential environmental impacts of solar developments. Other green groups, such as The Wilderness Society, praised the agency for its cautious approach.

Meanwhile, the BLM continued to expedite a great deal of natural gas and oil drilling. Its new 1,603-page final environmental impact study for an expansion of Wyoming’s Pinedale Anticline gas field, for example, will permit 3,700 new wells, despite the agency’s acknowledgement that this could cause further reductions in deer and sage grouse populations. Some of the West’s most powerful politicians—including Nevada Senator Harry Reid, the U.S. Senate majority leader, and Colorado Representative Mark Udall—saw the imbalance and responded by pressuring the BLM into a flip-flop on solar. On July 2, the agency announced that it will continue to accept new applications for solar plants even as it studies their environmental impacts. Rhone Resch, head of the Solar Energy Industries Association, called for the BLM to get moving: So far, he said, the agency’s ten thousand employees “have yet to approve a single solar energy project.”

Meanwhile, Congress and President George W. Bush have yet to renew the federal tax credits for solar and wind developers. Those credits are due to expire at the end of this year, making the developers—and all those who are worried about climate change—nervous.

So the Western Governors’ Association had plenty of reasons to focus on energy and climate policies during a late-June meeting in Jackson, Wyoming. The group’s outgoing president, Wyoming Governor Dave Freudenthal, repeated his call for the federal government to “monetize” carbon through a new tax or cap-and-trade system on carbon emissions. Keynote speaker Jeff Immelt, CEO of General Electric—a leading manufacturer of wind turbines—said that regulating such emissions would help the economy by stimulating entrepreneurs. Clean energy, he predicted, “will be the biggest growth industry” for the next forty years.

Other risks of fossil fuels were evident in late June: Two men were killed in accidents on Wyoming drilling rigs over a two-day span. The victims were Sam Aurther, age fifty-six, and Eric Tuscan-Rice Jr., age twenty-four. The Wyoming Occupational Safety and Health Administration is investigating.

There was mysterious good news in the Northwest: Unexpectedly huge numbers of sockeye salmon migrated from the ocean up the Columbia River system. By the 26th of June, 157,486 sockeye had been counted at Bonneville Dam east of Portland, Oregon—ten times as many as had migrated by that day last year. Biologists credited better-than-anticipated mountain runoff and ocean conditions, but they admitted to scientific uncertainty; earlier this year, their prediction that runs of spring chinook salmon would be good didn’t pan out.
A federal spokesman told the Idaho Statesman, “It’s part of a remarkable cycle that’s not fully understood and over which we have no control”—not entirely true, since the feds do have some control over the dams that impede salmon traffic.

Even the good salmon news wasn’t entirely good: Almost all those sockeye salmon stay in the main channel of the Columbia. Only a few hundred are expected to make it past dams on a tributary—the Snake River—to reach the Salmon River system in central Idaho. Other chinook and coho salmon runs in Oregon and California have been a “disaster” this year, the Statesman reported, and the sockeye remains Idaho’s most endangered species.



“Funnison” in Gunnison

For the past several years, we have piled family, dogs, clothes, and equipment into our vehicle and for four or five days each summer headed north. Through Santa Fe, Espanola, and Ojo Caliente we press onward, until we reach the Colorado border. We snake through town after town, each one a little smaller than the last, until we reach our destination of Gunnison.

Now, it’s not that we don’t have fabulous scenery or fishing here in New Mexico, but Gunnison is different. The town was established in 1874 and is centrally located in the state of Colorado, two hundred miles from Denver and 180 miles from Colorado Springs. It is nestled thirty miles west of the Continental Divide in a sprawling valley, where the elevation is 7,703 feet. Gunnison serves as the eastern gateway to Curacanti National Recreation Area and the Black Canyon of the Gunnison National Park, and the southern gateway to Crested Butte, a year-round resort only twenty-eight miles to the north.

While Gunnison is the home to Western State College and destination for a countless number of visitors lured by its beautiful setting, recreational opportunities, historical tours, museums, children’s attractions, golf, and more, those are not the reasons we make the yearly drive. We are here for one reason—because Gunnison County’s population is mostly fish.
This area provides some of the finest fishing in North America. Surrounded by pristine wilderness and abundant open lands, the cold, clear, clean water runs down from the high mountain ranges and is ideal for numerous species of fish. The Gunnison area provides a variety of waters for anglers of all persuasions. Small streams, big rivers, alpine lakes, and big reservoirs offer numerous fishing opportunities. Not only do you find diversity of waters, but also a variety of fish—there are brown, rainbow, cutthroat, brook, and mackinaw (lake) trout, as well as kokanee salmon, to name a few.

Our visit this time seems to echo past excursions. We arrive at the cabin and unpack the vehicle, which usually leaves me sweating and ready for a nap, but it is nearly impossible to stay inside with the Gunnison River’s siren call beckoning just thirty yards away. It is mesmerizing. The deep, rumbling water has already lured other family members and gradually, the competition begins.

Not only have a number of family members from New Mexico made the trek, but our family residing in Denver always joins the party, and as it is with many families, there is a healthy competitive spirit involved in the angling pursuits. While some people are visiting and catching up, others seem to disappear without a sound, only to reappear hours later dressed in fly-fishing gear or with spinning tackle in tow. The objective of the competition, of course, is to land the biggest fish, and everybody on the trip is silently pondering their strategy. As we sit around our campfire, eating, drinking, and talking of itineraries for the next few days, somebody will eventually say the magic words: “Black Canyon.”

The Black Canyon is where you head when Blue Mesa Reservoir (which is Colorado’s largest body of water, and host of the largest kokanee salmon fishery in the United States), Morrow Point Reservoir, and Crystal Reservoir just don’t seem adventurous enough. The Black Canyon of the Gunnison’s unique and spectacular landscape was formed slowly by the action of water, sand, and stone scouring down through hard Proterozoic crystalline rock. No other canyon in North America combines the narrow opening, sheer walls, and startling depths offered by the Black Canyon of the Gunnison. Both rims of Black Canyon offer beautiful views without going too far from your car. The South Rim Drive is paved and offers twelve viewpoints along the way. Some are right on the road and others involve short strolls on well-maintained trails. The North Rim Drive is a road less traveled. Many prefer the relative solitude that this drive offers. It is a dirt road open generally from late March through mid- to late-November, depending on the weather. The North Rim Drive offers stunning vistas and six dramatic overlooks of the canyon, most of which are along the road. But, for our family, we take a different path altogether.

The dirt road we take begins after an hour-long drive to the west. The gentleman at the sporting goods store refers to this as the “locals’” road, and he’s not kidding. After the customary wrong turns and u-turns (because there are no signs or markers), we pass fishing and rafting guides who tell us to turn around because we’re headed for a dead end. Bingo, now we know we’re going the right way.

Ten minutes more on the rough and rocky road, and we’ve arrived at the parking lot at the trailhead. The single-track trail is steep and winding, but for the dedicated fishermen in our group, it is well worth it. Each of us know that the ”big one” is in the river below just waiting to be hooked. It is difficult not to marvel at the beauty of this place. The routes are steep, unmaintained, and unmarked, but the scenery is spectacular. The wildlife and fish are everywhere, but the humans aren’t. With so much publicly-accessible prime fishing, everyone can have his own private fishing spot. This year it was my brother-in-law’s turn. He nabbed the “big one,” and his smile let all of us know it.

The few days seem to come and go all too quickly. We all fish, mingle, and tell the tales of the previous trips that bring tears of laughter to our eyes. Next year, there will be a few more to add around the campfire. Once again, the cars are loaded, hugs and kisses are passed out, and the journey home begins. For most of the drive, we will talk about next summer’s trip and the smile that still rests on my brother-in-law, Andrew’s, face.






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