GILBERT ZEPEDA

Deputy Forest Supervisor

1474 Rodeo Road

PO Box 1689

Santa Fe, NM 87504-1689

505-438-7840

505-438-7834 (fax)

Chris Napp,

Natural Resource Planner,

PO Drawer 429,

Pecos, NM 87552

505-757-6121 (phone)

505-757-2737(fax).

RE: Boating Coverage in the Draft Pecos Wild and Scenic River Management Plan

Dear Deputy Forest Supervisor Zepeda and Mr. Napp,

I am writing on behalf of American Whitewater (AW) and our members in regard to the proposed boating ban described in the Draft Pecos Wild and Scenic River Management Plan.  This proposal appears inconsistent with Forest Service Policy, the Wild and Scenic Rivers Management Act (WSR), the National Environmental Policies Act (NEPA), and New Mexico’s navigability laws. Many of our members have had the pleasure of rafting or kayaking on the Pecos through the National Forest, and we strongly encourage the Forest Service not to “Prohibit the use of rafts, boats, or other conveyances to float down the river” and to continue to allow the use of rafts, kayaks, and canoes on the Pecos.

The upper Pecos reaches flow through wooded high mountain canyons; the lower reaches flow through barren tablelands with bluffs and rugged rock formations.  One of the best means for visitors to enjoy this scenery is by floating down the river on a raft, kayak, or canoe. 

American Whitewater is a national 501.c.3 non-profit, representing about 8,000 members and an additional 80,000 whitewater boaters through our club affiliates. We are dedicated to conserve and restore America’s whitewater resources and enhance opportunities to enjoy them safely.

It is not Forest Service policy to ban recreational boating.  At present there is only one recreational boating closure on a Wild & Scenic River. That closure is on the headwaters of the Chattooga River.  American Whitewater is taking legal action to rectify this decision, which was made outside of NEPA and was based on undocumented social issues related to fishing.  The decision is also being reviewed concurrently by the Agency and is expected to be resolved to allow seasonal boating access.  There are a handful of other limited seasonal closures on Wild and Scenic Rivers, which are based on clearly defined and researched issues related to protection of threatened or endangered species.  The decision to recommend a complete ban on boating on the Pecos does not meet the Agency policy to protect recreation and traditional historic access to America’s rivers and streams; nor is it warranted for any identified environmental reasons.

WILD & SCENIC RIVERS

The Forest Service has to provide a rational process and document the reasons for banning boating on the Recreational segment of the Wild and Scenic Pecos River.  This decision cannot be arbitrary and capricious.  The standard for banning boating must be uniformly applied to other recreational uses, such as fishing and wading, which are encouraged in the proposed plan.  The current analysis of boating on the Pecos and the proposal to ban float use is inadequate and does not meet the standard of analysis for such a ban.

The Wild & Scenic Rivers Act describes Congressionally designated Pecos River as:

“The 20.5 mile segment from its headwaters to the townsite of Tererro; to be administered by the Secretary of Agriculture in the following classifications: (A) The 13.5 mile segment from its headwaters to the Pecos Wilderness boundary, as a wild river; and (B) the 7-mile segment from the Pecos Wilderness boundary to the townsite of Tererro, as a recreational river.”

The current Forest Plan states that the management goal for the Wild and Scenic River is to: “Manage the… Pecos… recommended for inclusion in the National Wild & Scenic Rivers System to maintain or enhance the values for which [it was] included. Maintain the rivers’ free-flowing character while providing quality water-based recreation opportunities, wildlife habitat improvement, and other resource management, consistent with the intent of the 1968 Wild & Scenic Rivers Act” (USDA-FS, 1987b: p. 19). The Forest Plan also provides standards and guidelines for managing the WSRs, such as “Manage these rivers in such a manner as to protect and enhance the values for which they were classified as eligible. In order to maintain these characteristics, manage the river corridors in accordance with the guidelines set forth in Chapter 8 Section 8.2 of Forest Service Handbook 1909.12”.

A ban on recreational boating appears to violate the intent of both the current Forest Plan and the Wild and Scenic Rivers Act. The Pecos River Wild & Scenic eligibility status was based on several Outstanding and Remarkable Values (ORVs) including recreational opportunities.  The National Park Service Rivers and Trail Program, which maintains the National Rivers Inventory (NRI) of eligible Wild and Scenic Rivers describes the ORV for Recreation: “Recreational opportunities are, or have the potential to be, popular enough to attract visitors from throughout or beyond the region of comparison or are unique or rare within the region. Visitors are willing to travel long distances to use the river resources for recreational purposes. River-related opportunities could include, but are not limited to, sightseeing, wildlife observation, camping, photography, hiking, fishing and boating.”

The Draft EA does not include a copy of the Wild & Scenic Rivers eligibility analysis language for the Pecos. If boating, canoeing, rafting, floating, or kayaking use of the Pecos River are mentioned in the eligibility document or in the ORVs, then it is unlikely that a legal argument for banning their use can be made. Even if they are not explicitly mentioned in the eligibility document, then a careful review must be made of whether the ban meets the management objectives for the Wild and Scenic River and whether the ban is consistent with Forest Service Policy.

The proposed draft plan acknowledges that “Some reaches of the WSR would support a small raft, kayak, or canoe during certain times of the year when the river is running high.”

The plan continues “The river however, crosses a number of barriers that would make floating these scattered reaches difficult, if not impossible.” American Whitewater is aware of some of these barriers that are man-made such as wing dams for fishing, and some that are natural, such as rocky riffles; however, none of these barriers in fact make floating these reaches impossible or overly difficult and any balanced survey of the recreational boating opportunities on the Pecos would reveal that these natural and unnatural barriers are normal features of any free-flowing river segment and are regularly encountered by rafters and kayakers without difficulty.  

One AW member described his experience on the section of the Pecos that has been threatened with closure, “I have kayaked this section several times.  It is a fast moving class III+ usually runnable in May.  It is unusual for New Mexico because it is forested with clear water.  Its character is more like what would be expected of a Colorado creek.”

ACCESS & NAVIGABILITY

The proposed draft plan states that “There are no good launch sites for floating, and patchwork ownership in the Recreational segment prevents floating any distance.”  American Whitewater disagrees.  The issue of access points and ownership of the river’s banks must be viewed separately, and neither is adequately analyzed in this Environmental Assessment to justify a complete ban on recreational boating opportunities. 

First, public access to the river does exist via both public (State Park and Forest Service property) and private property; however no analysis is made of these points, though  in our members’ experience the access points are suitably remote from each other to provide a positive recreational experience for rafters and kayakers.

Second, the river is legally navigable, thus the issue of riparian ownership has no bearing whatsoever on whether the public can make recreational use of the waters.

The Constitution of New Mexico declares water in a stream to be public.

The public has the right to use this water for recreational purposes, subject to the right of appropriators to remove water from the stream (e.g. for irrigation). So, in New Mexico, you can float any stream for which there is legal access.  

New Mexico, a state that follows the doctrine of prior appropriation, has taken a somewhat unique approach to determining public rights in streams where the streambed is privately owned. New Mexico is one of the few states that have used the appropriation doctrine, and not common law navigability tests, to determine which waters are public. In New Mexico, while title to streambeds may be held by a private entity, appropriators hold only a usufructory right in the water, and title to the water remains in the state[[1]]. All unappropriated waters from every natural stream, perennial or torrential, are public waters in the public domain.[[2]] In fact, navigability is but one criterion in determining whether there exists public rights to use a body of water. While no case or law has carefully defined the criteria for distinguishing public and private waters, the most liberal of tests distinguishing public and private waters is consistent with Red River Valley. Red River Valley defined public waters very broadly, and expressly condoned recreational uses of public waters.[[3]] The only clearly important factor to distinguishing public from private streams is whether the public has legal access.[[4]] Red River Valley recognized a general expansion in the public water doctrine.[[5]] The public has a right to use these waters for a beneficial use,[[6]] including recreation and fishing.[[7]]

No case or statute discusses portaging on private land around obstructions in the stream. While the public doctrine gives the public the right to use the zone between the high and low water marks, the New Mexico attorney general’s office expressed doubts about the right to portage above this zone.[[8]] The letter cited the trespass statute, which says “knowingly entering or remaining upon posted private property without possessing written permission from the owner or person in control of the land,” or “knowingly entering or remaining upon the unposted land of another knowing that such consent to enter or remain is denied or withdrawn by the owner or occupant thereof. Notice of no consent to enter shall be deemed sufficient notice to the public . . . by posting the property at all vehicular access entry ways.”[[9]] The letter did not discuss portaging as being a necessary incident to the right to navigate.

Red River Valley, however, does provide evidence that portaging may be accepted. The court looked to the laws of the Partidas, which were the prior existing Spanish laws in New Mexico that the New Mexico constitution is based upon.[[10]] The court cited the following law of the Partidas: “And although the banks of rivers are, so far as their ownership is concerned, the property of those whose lands include them, nevertheless, every man has a right to use them, by mooring his vessels to the trees, by repairing his ships and sails upon them, and by landing his merchandise there; and fishermen have the right to deposit their fish and sell them, and dry their nets there, and to use said banks for every other purpose like those which appertain to the calling and the trade by which they live.”[[11]] This language is tempered by another quote later in the opinion that states, “The small streams of the state are fishing streams to which the public has a right to resort so long as they do not trespass along the banks.”[[12]] This latter statement is not dispositive because it can be argued that use of the bank incident to navigation is not a trespass, and that the court was referring to trespass as it relates to access.

The Federal Government (i.e., Forest Service) certainly has the power to "regulate conduct on non-federal land when reasonably necessary to protect adjacent property or navigable rivers.[[13]]"  This applies to locations such as the riverbed of the Pecos, which is state, rather than federal, land. However, the Agency’s claim in the Draft EA that “There are no good launch sites for floating, and patchwork ownership in the Recreational segment prevents floating any distance,” does not rise to the level legitimizing a ban on float use of the Pecos.  The proposed ban is neither necessary to protect adjacent property or navigability on the Pecos. Adjacent property is protected through state property laws and trespassing or damages may be enforced or mitigated as described earlier.

NEPA

A ban on boating, which is an existing historic and traditional use of the Pecos, rises to the level of a significant action under the National Environmental Policy Act (NEPA) affecting the human environment. As such, the decision should be made based on an analysis through an Environmental Impact Statement (EIS) rather than an Environmental Assessment (EA).  The proposal to ban boating should be included among a range of alternatives including a “no change” alternative, which would continue to protect this traditional recreational experience.  The decision to ban a traditional activity should not be made through the EA process.

The Agency has a duty to represent the public who desire to make use of the nation’s Wild and Scenic Rivers.  A ban on recreational boating does not reflect the careful and appropriate exercise of the Agency’s powers and authorities; nor does it demonstrate that it has fulfilled its duties.

Please contact American Whitewater to discuss these issues further.

Sincerely,

Jason Robertson

Access Director

American Whitewater

1424 Fenwick Lane

Silver Spring, MD 20910

301-589-9453

May 27, 2003