Forest Service Threatens to Close Wild & Scenic Pecos to Rafts and Kayaks (NM)

By Jason Robertson

The Forest Service is threatening to close new Mexico’s Wild and Scenic Pecos River to rafting and kayaking in the new Draft Pecos Wild and Scenic River Management Plan. Comments are due today, May 27, 2003.

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. It’s character is more like what would be expected of aColorado creek. They have done quite a bit of modification at thebeginning of the run with wing dams to create pools for fisherman. BelowTerrero there is private property and fences. I have heard of problems butmy experience with landowners is that we have been very welcome and fencesare directed towards fisherman. Terrero is an old mining town and thereare mining issues (tailings were used to construct some of the trails intothe wilderness). – Tom Robey, AW Member

Read the Plan at:

www.fs.fed.us/r3/sfe/projects/projects/pecosWSR/index.html

Comments from AW Member, Tim Scofield:

cnapp@fs.fed.usDear Mr. Napp,

I recently read the preposed management plan and environmentalassessment for which you are collecting comments.

I noticed that the plan is trying to close the Pecos River to boatingwithout a good reason (To enhance fishing is NOT a good reason).Your organization is supposed to protect this portion of the river forALL users, not just for the fishermen. The plan states that closing theriver to boating would “not be expected to displace many users.” Forthis reason alone there should be NO RESTRICTIONS placed on boating thePecos river. Boating the river results in almost NO environmentalimpact. The only real impact comes from getting to and from the river,and in those areas where we get out of out boats to scout. Thefishermen’s trails to, from, and along the river are a much greaterimpact, especially considering the fact they are the majority user ofthe river. Typically we would only boat the river during high flows (youalso state this in the EA), which is when my fishermen friends try toAVOID the river. The fishing is typically not very good during thisperiod and it’s hard for them to wade and walk along the river. Becauseboating and fishing often occur at different times, the comments in theEA that prohibiting boating “would enhance fishing within the corridor”are spurious.

If you want to discourage what the EA refers to as “floating” what youshould do is prohibit fishing from any conveyance used to float down theriver. This should include carry fishing poles in any such conveyance.If there are so many fisherman that the occasional, rare boater woulddisturb them, I would argue that you have too many fisherman, and youneed to institute a permit system to control the number of fishermen.

If the Santa Fe Forest Service uses such spurious logic to prohibitboating along the Pecos River Wild and Scenic Corridor, I will try toconvince the Adobe Whitewater Club, and other organizations, to takelegal action to prevent the Forest Service from prohibiting boating.

Sincerely,
Tim Scofield

American Whitewater Comments

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: BoatingCoverage in the Draft Pecos Wild and Scenic River Management Plan

Dear Deputy Forest Supervisor Zepeda and Mr. Napp,

Iam writing on behalf of American Whitewater (AW) and our members in regard tothe proposed boating ban described in the Draft Pecos Wild and Scenic RiverManagement Plan. This proposal appearsinconsistent with Forest Service Policy, the Wild and Scenic Rivers ManagementAct (WSR), the National Environmental Policies Act (NEPA), and New Mexico’s navigability laws. Many of our members have had thepleasure of rafting or kayaking on the Pecosthrough the National Forest, and we strongly encourage the Forest Service notto “Prohibit the use of rafts, boats, or other conveyances to float down theriver” and to continue to allow the use of rafts, kayaks, and canoes on the Pecos.

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

American Whitewater is anational 501.c.3 non-profit, representing about 8,000 members and an additional80,000 whitewater boaters through our club affiliates. We are dedicated toconserve and restore America’s whitewater resources and enhance opportunities toenjoy them safely.

It is not Forest Service policy to ban recreational boating. At present there is only one recreationalboating closure on a Wild & Scenic River. That closure is on the headwaters of the Chattooga River. AmericanWhitewater is taking legal action to rectify this decision, which was madeoutside of NEPA and was based on undocumented social issues related tofishing. The decision is also beingreviewed concurrently by the Agency and is expected to be resolved to allowseasonal boating access. There are ahandful of other limited seasonal closures on Wild and Scenic Rivers, which arebased on clearly defined and researched issues related to protection ofthreatened or endangered species. Thedecision to recommend a complete ban on boating on the Pecosdoes not meet the Agency policy to protect recreation and traditional historicaccess to America’s rivers and streams; nor is it warranted for anyidentified environmental reasons.

WILD & SCENIC RIVERS

The Forest Service has toprovide a rational process and document the reasons for banning boating on theRecreational segment of the Wild and Scenic Pecos River. This decisioncannot be arbitrary and capricious. Thestandard 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 Pecosand the proposal to ban float use is inadequate and does not meet the standardof analysis for such a ban.

The Wild & ScenicRivers Act describes Congressionally designated Pecos River as:

“The 20.5 mile segment fromits 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 boundaryto the townsite of Tererro,as a recreational river.”

The current Forest Planstates 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 tomaintain or enhance the values for which [it was] included. Maintain therivers’ free-flowing character while providing quality water-based recreationopportunities, 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 formanaging the WSRs, such as “Manage these rivers insuch a manner as to protect and enhance the values for which they wereclassified as eligible. In order to maintain these characteristics, manage theriver corridors in accordance with the guidelines set forth in Chapter 8Section 8.2 of Forest Service Handbook 1909.12”.

A ban on recreationalboating appears to violate the intent of both the current Forest Plan and theWild and Scenic Rivers Act. The Pecos River Wild & Scenic eligibilitystatus was based on several Outstanding and Remarkable Values (ORVs) includingrecreational opportunities. The NationalPark Service Rivers and Trail Program, which maintains the National RiversInventory (NRI) of eligible Wild and Scenic Rivers describes the ORV for Recreation: “Recreationalopportunities are, or have the potential to be, popular enough to attractvisitors from throughout or beyond the region of comparison or are unique orrare within the region. Visitors are willing to travel long distances to usethe river resources for recreational purposes. River-related opportunitiescould include, but are not limited to, sightseeing, wildlife observation,camping, photography, hiking, fishing and boating.”

The Draft EA does notinclude a copy of the Wild & Scenic Rivers eligibility analysis languagefor the Pecos. If boating, canoeing, rafting, floating, or kayakinguse of the Pecos River are mentioned in the eligibility document or in theORVs, then it is unlikely that a legal argument for banning their use can bemade. Even if they are not explicitly mentioned in the eligibility document,then a careful review must be made of whether the ban meets the managementobjectives for the Wild and Scenic River and whether the ban is consistent with Forest ServicePolicy.

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

The plan continues “Theriver however, crosses a number of barriers that would make floating thesescattered reaches difficult, if not impossible.” American Whitewater is awareof some of these barriers that are man-made such as wing dams for fishing, andsome that are natural, such as rocky riffles; however, none of these barriersin fact make floating these reaches impossible or overly difficult and anybalanced survey of the recreational boating opportunities on the Pecos wouldreveal that these natural and unnatural barriers are normal features of anyfree-flowing river segment and are regularly encountered by rafters andkayakers without difficulty.

One AW member described hisexperience on the section of the Pecos that has been threatened with closure, “I havekayaked this section several times. Itis 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 beexpected of a Colorado creek.”

ACCESS & NAVIGABILITY

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

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

Second,the river is legally navigable, thus the issue of riparian ownership has nobearing whatsoever on whether the public can make recreational use of thewaters.

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

Thepublic has the right to use this water for recreational purposes, subject tothe right of appropriators to remove water from the stream (e.g. forirrigation). So, in New Mexico, you canfloat any stream for which there is legal access.

New Mexico, a statethat follows the doctrine of prior appropriation, has taken a somewhat uniqueapproach to determining public rights in streams where the streambed isprivately owned. New Mexico is oneof the few states that have used the appropriation doctrine, and not common lawnavigability tests, to determine which waters are public. In New Mexico, whiletitle to streambeds may be held by a private entity, appropriators hold only ausufructory right in the water, and title to the water remains in the state[[1]]. All unappropriated waters from every natural stream, perennialor torrential, are public waters in the public domain.[[2]]In fact, navigability is but one criterion in determining whether there existspublic rights to use a body of water. While no case or law has carefullydefined the criteria for distinguishing public and private waters, the mostliberal 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 streamsis whether the public has legal access.[[4]] Red River Valleyrecognized a general expansion in the public water doctrine.[[5]] The public has aright to use these waters for a beneficial use,[[6]] including recreationand fishing.[[7]]

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

Red River Valley, however, does provide evidence that portaging may beaccepted. The court looked to the laws of the Partidas,which were the prior existing Spanish laws in New Mexico that the New Mexicoconstitution is based upon.[[10]] The court cited thefollowing law of the Partidas: “And although thebanks of rivers are, so far as their ownership is concerned, the property ofthose whose lands include them, nevertheless, every man has a right to usethem, by mooring his vessels to the trees, by repairing his ships and sailsupon them, and by landing his merchandise there; and fishermen have the rightto deposit their fish and sell them, and dry their nets there, and to use saidbanks for every other purpose like those which appertain to the calling and thetrade by which they live.”[[11]] This language istempered by another quote later in the opinion that states, “The small streamsof the state are fishing streams to which the public has a right to resort solong as they do not trespass along the banks.”[[12]]This latter statement is not dispositive because itcan 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) certainlyhas the power to “regulate conduct on non-federal land when reasonablynecessary to protect adjacent property or navigable rivers.[[13]]” This applies to locations such as theriverbed 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 patchworkownership in the Recreational segment prevents floating any distance,” does notrise to the level legitimizing a ban on float use of the Pecos. The proposed ban is neither necessary toprotect adjacent property or navigability on the Pecos.Adjacent property is protected through state property laws and trespassing ordamages may be enforced or mitigated as described earlier.

NEPA

A ban on boating, which isan existing historic and traditional use of the Pecos,rises to the level of a significant action under the National EnvironmentalPolicy Act (NEPA) affecting the human environment. As such, the decision shouldbe 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 ofalternatives including a “no change” alternative, which would continue toprotect this traditional recreational experience. The decision to ban a traditional activityshould not be made through the EA process.

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

Please contact AmericanWhitewater 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

[1] State v. Red River Valley Co., 182 P.2d 421 (N.M. 1946). Noticethat the court in Red River Valley Co.distinguished Hartman v. Treatise, 84P. 685 (Colo. 1905) (a case which applied the riparian rule of deciding onpublic rights by examining the title to the bottom).

[2] Red River Valley Co., 182 P.2d at 430.

[3] 182 P.2d 421.

[4] Id. at 434.

[5] 182 P.2d 421.

[6] N.M. Const. art. XVI, § 2.

[7] Id.

[8] Letter from the Att’y Gen. to Mark Sundin, April 8, 1997.

[9] N.M. Stat. Ann. 1978, § 30-14-1A

[10] Red River Valley Co., 182 P.2d at 429.

[11] Id. at 429.

[12] Id. at 434.

[13]United States v.Lindsey, 595 F.2d 5 (9th Cir.1979). “The fact that title to the land on which the violations occurredwas in the state of Idaho doesnot deprive the United Statesof regulatory control over appellees’ conduct. Article IV, Section 3, Clause 2 of the UnitedStates Constitution provides in part…‘The Congress shall have Power to disposeof and make all needful Rules and Regulations respecting the Territory or otherProperty belonging to the United States.’”