The National Rivers Website, Rivers of Colorado:

The following news is assembled from postings from various sources, as a public service. The sponsors of this website do not assume responsibility for accuracy. Always double-check information before relying on it, especially when your safety is involved!

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STATEWIDE ISSUES:

NEW!! New disputes over river access in Colorado

Battle over Clear Creek Water

Award to Glenwood Canyon Highway

State Officially Waffles on Access

Animas-La Plata Dam Gets Congressional Nod

Pig Pollution Closes Farm

River legislation proposals in Colorado

"Menacing" Landowner Arrested

New hatchery to restore aquatic species

Animas-La Plata History 101

Great Sand Dunes could dry up water fight

No planes in Rocky Mountain National Park

Opponents voice objections, reasons for stance on Animas-La Plata reservoir

Clash over proposed reservoir

Citizen concerns over burgeoning user fees

Plants that filter water pollution

New Disputes Over River Access in Colorado

In early June, four kayakers were arrested and cited with criminal trespass on the South Platte River about ten miles upstream from Cheesman Reservoir. Gordon Banks and Dave Eckardt, authors of the popular guidebook Colorado Rivers and Creeks, and their companions were kayaking on the river through a fishing club called Sportsman's Paradise when they were arrested by local sheriff's deputies.

Also in early June, riparian landowner Yosi Lutwak filed suit against Cannibal Outdoors rafting company, seeking to prevent the company from conductiung raft trips through his ranch on the Lake Fork of the Gunnison River.

• Click here to go to the Denver Post front-page article of June 14, titled River users wade into battle.
• Click here to go to the Denver Post article of June 16 on the Float-in on the Lake Fork of the Gunnison.
• Click here to go to the new NORS river law folder, Boating Rights on Rivers in Colorado, which explains public rights to canoe, kayak, and raft in Colorado, including scouting and portaging, and riparian landowner rights to build cattle fences and irrigation diversion dams, as long as they provide a boat chute or portage route around any structures they build.

Water Conservation Board to Golden: Don't Play with Your Water!

Clear Creek is in high demand these days, and it threatens to tear apart the small mountain communities that rely on its water for a multitude of purposes.

Golden wants to ensure levels of water flow to support its new kayak course, helping to support a tourist industry there that it estimates brings in some $4 million.

Upstream communities like Georgetown and Idaho Springs, however, worry that setting water levels for Golden today could negatively impact their own growth in the future. Ranchers and farmers object to losing valuable water for their ventures to what they see as a playground for boaters. Conservation groups are also concerned about the impact the Golden drain might have on fish stocks and other biological factors during a particularly hot summer or following a dry winter.

The Colorado Water Conservation Board has proven wary of the Golden proposal and is recommending against the proposal.

Award to Eco-Minded Canyon Highway

Interstate 70 is pretty much a highway like any other, until it enters Glenwood Canyon, and then it becomes an environmental, architectural, and engineering award-winner.

The highway winding through Glenwood Canyon received the Presidential Design Award 2000 for its attention to environmental concerns as well as basic traffic considerations. Completed in 1991, the road was specially designed to accomodate the delicate balance of life within the canyon walls while still serving as a major commercial route that bisects Colorado. Civil engineers study the 12.5 mile stretch today to apply its lessons to other new construction projects.

Glenwood Canyon nearly lost its beauty under an original design plan that would have destroyed much of the canyon and the river that flows through it. NORS joined with other organizations to play a key role in pressing developers to come up with an environmentally sound plan that could coexist with economic needs.

Streamside sign raises questions, answers none

Representatives from state and federal land management groups and conservation and public rights advocates met in Denver on January 8, 2001, to discuss the language of a sign to be posted at access points to various rivers in Colorado. NORS strongly opposes the sign because it undermines federal law by suggesting that public rights to navigate are in doubt in Colorado.

The sign will be posted in areas of high visibility like river put-ins. Backed by the Colorado state seal, the sign warns boaters that paddling through private lands could get them in trouble:

"ATTENTION: PRIVATE PROPERTY AHEAD The rivers of Colorado are used by many people. When these rivers flow through public land managed by local, state, or federal agencies, they are generally open for a wide variety of recreational uses.

"When rivers flow through private land, though, the situation changes. Whether or not you may float through private property is an uncertain aspect of the law.

"Please observe these signs:

"[blue square] -- public use allowed

"[red circle] -- private land -- do not trespass

"Respect private property."

To object to the posting of such signs, contact the Colorado Department of Natural Resources and the Colorado State Parks Division. If you live in Colorado, contact your state legislators.

Be sure to stress that although these rivers are located in Colorado, they are held in trust for all the public, under federal law.

Opponents to carry on fight

The newest Congressional spending bill includes a provision for creating the Animas-La Plata dam in southwestern Colorado. Proponents of the dam include developers and many of the 3,000 member Ute Indian tribes in the area. Opponents consist largely of conservationists.

The construction of the dam would divert water from the Animas River to a reservoir. The use of those waters has not yet been determined, although some would almost certainly be used to encourage development in the area, including golf courses, housing, and industrial park development. The benefits realized by the sale of the water and the subsequent development is intended to improve the economic status of area tribes, though opponents point out that over a third of the water would go to non-Indian users, while many of the direct water sales or rights from Ute tribes must also go to non-Indian interests.

Violations cause state to crack down on National Hog Farm

The owner of the state's largest hog farm defied Colorado law regulating the manner in which agricultural waste is stored and disposed of when he built his open-air manure lagoon at National Hog Farms. He has also faced state disciplinary action resulting from his use of hog effluent. The farm is located west of Greeley in north-central Colorado near the South Platte River.

William Haw had been warned that, unless he complied with Amendment 14, the state would shut down his operation and require him to remove all hogs from the property. Amendment 14 dictates maximum levels of odor and emissions and sets guidelines for the storage and disposal of hog effluent.

River legislation proposals in Colorado

The Department of Natural Resources for the State of Colorado has been holding meetings of a "River Surface Recreation Forum" every six weeks or so for about the past year. The next meeting is Monday October 30, 2000, from 2 to 5 p.m., in downtown Denver at 1313 Sherman Street, seventh floor. (This is just south of the gold dome of the state capitol building. There are various parking options a couple of blocks south.) The meeting is open to interested river runners and fishermen. There are no requirements to become an official member of the forum--just show up. Most of the people who show up tend to oppose river access. They include representatives of landowner groups, cattlemen, farm bureau, etc. The state government has been sort of neutral so far. The governor and the state attorney general seem to lean towards allowing the public on major rivers (such as the ones with lots of commercial rafting traffic) but not on other rivers.

The subject of the next meeting will be options for state legislation, or for state purchase of easements on rivers. The following memo discusses those issues, and will also update you on what the previous meetings have been discussing. For those of you in other states, please note that most of the following is about federal law that applies nationwide. These are not just Colorado state issues--Colorado just happens to be hosting a forum at the moment. For example, it applies to public rights in the Grand Canyon, in ways that we look forward to explaining in writing in the near future. (Legally, the Colorado River through the Grand Canyon is more than just another feature in a National Park.) Many thanks to all of you who have supported NORS over the years and thereby made the following possible.

To: All participants in the River Surface Recreation Forum.
From: Eric Leaper, Executive Director, the National Organization for Rivers.
Re: Options for legislation and for easements.
October 10, 2000.

Dear Forum Participants:

The chairman of the forum has asked us to discuss options for state legislation, and for state purchasing of river easements.

On both subjects, we could start by defining the legal problem that we are trying to solve.

Some forum participants seem to think that there is a lot of disagreement about what the law is on this issue. Over the past several meetings, what has actually emerged is agreement about most legal matters. Regarding state law, we agree that there were three relevant state decisions from 1977 to 1983: The State Legislature redefining "premises" for trespassing purposes in 1977, the Colorado Supreme Court saying "the public has no right to the use of waters overlying private lands for recreational purposes" in 1979, and the Attorney General saying in 1983 that the Legislature's 1977 action gave the public the right to boat on the surface of rivers "without touching the beds or banks." C.R.S. 18-4-504.5, People v. Emmert, Colo. 597 P.2d 1025 (1979), Attorney General opinion NR AD AGALA (1983).

Regarding federal law, we agree that in the 1980s and 1990s federal courts ruled that rivers in other states that are usable for canoeing, kayaking, and rafting, or that were historically used to move logs or railroad ties, are legally navigable. (Navigable for purposes of allowing the public to boat on them, not necessarily navigable for other purposes. We could refer to this as "navigable for public passage purposes," which is the issue in this forum.) In 1982 federal courts said the Jackson River in Virginia is navigable because "canoeing experts consider the Jackson to be a very fine canoeing stream, except for troubles with landowners along the river," and because it was used in 1884 to transport railroad ties. Also in 1982, they said the McKenzie River in southern Oregon (not the Mackenzie in Canada) is navigable, because it is used for guided fishing trips, and because historically it was used for log drives for a couple of seasons, with difficulty. In 1990 they said the Gulkana River in Alaska is navigable because it is usable for modern-day raft trips. In 1997 they said the Dog River in Georgia is "navigable under federal law because of the ability of kayaks and canoes to travel down the river, and for Sparks and the School of Kayaking to travel down the river with students for pay." (Mr. Sparks was a local canoe instructor.) In each case, attorneys argued that navigation by larger boats is necessary to make a river legally navigable. In each case, the court disagreed. Kayaking was enough. Loving v. Alexander, 548 F.Supp. 1079 (1982). Oregon v. Riverfront Protective Assoc., 672 F.2d 792 (9th Cir. 1982.) Alaska v. Ahtna, Inc., 891 F.2d 1401, (9th Cir. 1989), cert. denied, 495 U.S. 919 (1990). Atlanta School of Kayaking v. Douglasville County Water, 981 F.Supp. 1469 (N.D.Ga. 1997).

A key issue is whether these federal court decisions apply to rivers in Colorado. The navigability advocates at this forum say that they do apply, so that the rivers in Colorado that are navigable (in the ways that the Jackson, McKenzie, Gulkana, and Dog rivers are navigable) are legally navigable under federal law (at least for public passage purposes.) The U.S. Supreme Court has repeatedly ruled that "rivers that are navigable in fact are navigable in law." No official designation is necessary to make a river navigable in fact, and therefore navigable in law.

The landowner attorneys say that those federal decisions don't apply to rivers in Colorado, because Colorado courts said in 1912 that "the natural streams of this state are, in fact, nonnavigable" in the water-rights case of Stockman v. Leddy, 55 Colo. 24, 129 P. 220 (1912), and because of People v. Emmert. They say that state law is controlling, not federal law, on this issue.

The State Attorney General's office says that whether federal navigability law applies to rivers in Colorado hasn't been decided yet.

Let's look at what the Colorado Supreme Court said in 1982 when Denver Water Board attorneys, citing Stockman v. Leddy, claimed that state law, not federal law, applies to rivers in Colorado. The Court first said, "The proposition advanced by Denver was for many years an article of faith throughout the West and was adopted by this Court in Stockman v. Leddy." The Court then quoted the passage in Stockman v. Leddy that claims that the rivers in Colorado are nonnavigable. (The same passage that landowner attorneys have cited in this forum.) The Court then said, "Under the Supremacy Clause of the United States Constitution, however, it is our duty to adhere to the principles of federal law that have been enunciated by the United States Supreme Court." The Court noted that the Supremacy Clause states that the law of the United States is "the supreme Law of the Land," and that "the judges in every State shall be bound thereby, anything in the Constitution or Laws of any State to the contrary notwithstanding." (U.S. Constitution art. VI, cl. 2.) Finally, the Court said, "To the extent that Stockman v. Leddy conflicts with our disposition, we overrule it." United States v. City and County of Denver, Colo. 656 P.2d 1 (1982).

Note that federal law applies in all fifty states, even without confirmation by a particular state. The above finding by the Colorado Supreme Court is not actually necessary for federal law to apply to rivers in Colorado, it is simply a further affirmation that it does indeed apply. The issue has already been decided.

Furthermore, Colorado state court decisions do not currently conflict with federal navigability law. People v. Emmert addressed only nonnavigable rivers, and the comment about navigability in Stockman v. Leddy was subsequently overruled by the Colorado Supreme Court as shown above.

Options for legislation:

For the above reasons, the public's right to navigate the navigable rivers in Colorado that flow through private land is not in some sort of "limbo" status, waiting to be confirmed or denied by the State Legislature. The public does have the right to navigate such rivers under federal law, as it has since territorial days. Consequently, the claim that boaters are trespassing on those rivers, in either a criminal or civil sense, is moot. New state legislation that tries to curtail navigation rights on those rivers would be unlawful. For example, the Legislature can't declare that there aren't any navigable rivers in Colorado. Under federal law, which is controlling on this matter, there are many navigable rivers in Colorado. For the same reason, the Legislature can't designate a short list of popular rivers as navigable, and designate the rest as private. Under federal law, all the rivers that are "navigable in fact" must be "navigable in law."

What could the Legislature do? Any of the following:

1. Navigable rivers: The Legislature could confirm the public's right to navigate rivers that are navigable under federal law. (This would simply be a confirmation of existing federal law, as discussed above.)

2. Arguably navigable rivers: The Legislature could confirm the public's right to navigate rivers that, arguably, may not be navigable under federal law. The Legislature already did this in 1977, although the landowner attorneys claim that only criminal trespass, not civil trespass, was addressed at that time. A number of states recognize a "floatage easement" of some kind. (Oregon, California, Idaho, Montana, Wyoming, New York, etc.) Such an "easement" conveniently side-steps the need to distinguish between legally navigable and nonnavigable streams, in effect opening all streams to navigation. (When large rivers flood onto adjacent farms and towns, it also allows the public to boat around on the temporary water without worrying about who owns the underlying land.) Landowner attorneys claim that clarifying or extending public rights in this fashion is a "taking," but federal courts have consistently upheld state decisions to recognize these sorts of floatage easements. The Legislature could further clarify these public rights, reconfirming its 1977 action. Perhaps it could specify that both criminal and civil trespass issues are covered.

3. Scouting and portaging: The Legislature could confirm the public's right to set foot on the beds or banks of rivers, as necessary for scouting and portaging around rapids or obstacles, on rivers that are navigable under federal law. (This would simply be a confirmation of existing federal law, which has always recognized the rights of boaters to set foot on the beds and banks.)

4. Scouting and portaging on arguably navigable rivers: The Legislature could clarify the public's right to set foot on the beds or banks of rivers, as necessary for scouting and portaging, even on rivers that, arguably, may not be navigable under federal law. This was the essence of the boater "safety act" that died in committee a couple of years ago. At the time, some sheriffs said the "choice of evils" statute allows boaters to scout and portage as necessary, but the Legislature could confirm that boaters do indeed have that right. Some of the states mentioned above do specifically allow scouting and portaging, and courts have said that states can lawfully clarify or extend navigation rights in this fashion without involving a "taking."

5. Fishing on navigable rivers: The Legislature could confirm the public's right to stand on the beds or banks of rivers while fishing, on rivers that are navigable under federal law. (This would simply be a confirmation of existing federal law. Federal courts have held that the public can use navigable rivers for fishing and other non-destructive recreation, not just for boating.)

6. Fishing on arguably navigable rivers, and nonnavigable rivers: The Legislature could confirm the public's right to stand on the beds or banks of rivers while fishing, even on rivers that, arguably, may not be navigable under federal law, and also on nonnavigable rivers. This was the essence of the attempted ballot initiatives in Colorado by fishing advocates. Although boating and fishing rights are often dealt with together in law and politics, there is ample legal foundation for recognizing fishing rights separate from questions of navigability. The ancient "Law of Nature," which American courts have called "the only true foundation of all the social rights," recognized public rights of access to nonnavigable as well as navigable streams. The U.S. Supreme Court has held that the public has a "liberty of fishing in the sea, or creeks, or arms thereof, as a public common of piscary," and has recognized this right to fish in "places, creeks, or navigable rivers," not limiting it to only those streams that are navigable. See Martin v. Waddell, 41 U.S. (16 Pet) 366, 10 L.ed 997 (1842), and subsequent federal "Public Trust Doctrine" cases. Some of the states mentioned earlier specifically recognize fishing rights, separate from navigation rights. The constitutions of several states specifically assert the public right of access to nonnavigable as well as navigable streams. (Oregon, for example.) The Colorado Constitution echoes such language by asserting public ownership of "the waters of every natural stream." Colorado courts have taken the unusually narrow view that this passage only allows for irrigation diversions, not for fishing and boating, but federal law is controlling on the issue anyway. The Colorado State Legislature actually did confirm public fishing rights on streams crossing private land in 1903, "on every stream stocked at public expense." Historical accounts, and the fact that the Legislature passed such a law, indicate that public rights to fish on streams crossing private land were widely accepted in Colorado and other states at the time. In 1906 Colorado courts said these fishing rights were invalid because they were a "taking," but they cited nothing to support the claim that public fishing rights had passed into private ownership, and federal law is controlling anyway. In sum, the Legislature could confirm that the public does have the right to fish in natural streams crossing private land. Perhaps the Legislature could specifically declare that it does not find this to be "taking," because public fishing rights are protected by federal law, and they were never conveyed to private ownership previously.

No legislation is really necessary:

While any of the above clarifications or extensions of public rights might help to reduce confusion about these issues, no action by the State Legislature is really necessary. Federal law appears to be sufficient to confirm public rights on the rivers in dispute. For example, federal courts have consistently held that historical use of a river to transport wood products such as railroad ties is sufficient to make the stream legally navigable, even if this transportation was short-lived and not particularly successful. (For example, see Loving v. Alexander and Oregon v. Riverfront, cited earlier.) Historical accounts of the settlement of Colorado contain a number of references to such use.

For example, since the landowner attorneys attending this forum have specifically claimed that rivers in the Gunnison area are not navigable, it makes sense to check historical accounts from that area. The Gunnison Country, a hefty volume by Duane Vandenbusche, a professor of history in Gunnison, describes the use of rivers and creeks in that area to transport railroad ties: "To supply the thousands of ties needed on the Lake City extension, the builders turned to the great tie cutter of the Gunnison country, Captain James La Count. La Count had worked in the Gunnison country for a decade, supplying ties for the always ravenous South Park and Rio Grande Railroads. He employed over 100 men who turned out an average of 200,000 ties per year. Camps were located up Soap Creek, near the head of Elk Creek, on the Cochetopa, along the Cimarron, and along the banks of the Taylor River. But in 1889 and 1890 they were mostly located in the Cebolla-Powderhorn region. There, La Count's lumberjacks ran 25,000 ties down the Cebolla into the Gunnison River for use on the Lake City branch of the Rio Grande." (The Gunnison Country, 1980, page 160.)

This use of rivers and creeks to transport railroad ties in Colorado was more voluminous, more sustained, and more integral to the development of the region than that described in Loving v. Alexander and Oregon v. Riverfront. Due to this historical use, under federal law these rivers and creeks are navigable (at least for public passage purposes.)

Since the West was sparsely inhabited in frontier times, federal courts have also held that where there is no historical account of a particular river or creek being used for such purposes, the fact that it was "susceptible" of being used (capable of being used) in those years is sufficient to make it navigable, for public passage purposes.

In sum, the creeks in Colorado that early lumberjacks did use, or could have used, to send railroad ties downstream to construction crews are navigable for public passage purposes. Note that the narrow-gauge railroad ties in those days were smaller than today's usual railroad ties. Modern-day kayakers, whitewater canoeists, and cata-rafters, (even the more adventurous ones,) would not want to attempt to navigate some of the smaller, steeper creeks that were historically used for these railroad ties. For example, modern-day boaters are not interested in running some of the creeks mentioned above (Soap, Elk, Cochetopa, Cimarron, and Cebolla creeks,) even though they are navigable under federal law. In other words, the definition of "navigable" for public passage purposes, under federal law, appears to be broad enough to cover the rivers and creeks that modern-day river runners would want to navigate.

The State Legislature doesn't particularly need to confirm all this, although it could if it wanted to. On the other hand, the Legislature does not have the authority to deny the public's right to navigate these rivers and creeks, in conflict with federal law.

Some participants in this forum are concerned about setting some sort of limit regarding which rivers and creeks are subject to the public right of navigation. The legal test of navigability has always been a "people test," rather than a "stream test." The courts have never come up with requirements for width, depth, flow, gradient, length of season, or other physical characteristics that qualify a stream as legally navigable. The legal question has always been whether people can make use of the stream for transportation, or whether they did so in the past, even with rapids, waterfalls, logjams, or other impediments.

But there is indeed a limit to navigation: A natural limit, which could be called the "not worth it" limit. Many of the smaller rivers and creeks in Colorado are "not worth it" from a boater's or lumberjack's point of view, because of rocks, logs, and brush. They aren't worth using for transportation, so they aren't legally navigable. That is the limit.

Who determines whether a particular stream is "worth it" for navigation? The courts have always recognized the judgement of the people who did use it, or could have used it, or would use it now, for navigation or transportation--the lumberjacks, canoeists, fishing guides, kayakers, rafters, etc. (See the cases cited earlier.) Whether a stream is "worth it" for navigation or transportation has never been something to be decided by landowners who own land along the stream. Courts have also rejected testimony by geologists, hydrologists, and other "experts" claiming that a river is not navigable, when boaters say that it is. The boaters' judgement prevails.

Regarding fishing rights, federal law recognizes fishing rights independent from navigability, as discussed above. But navigability alone appears to be sufficient to confirm fishing rights in Colorado. On a number of creeks in Colorado, the water is too low for navigation during the seasons when people normally fish, but it is high enough for navigation during the spring thaw. Federal law allows fishermen to stand and fish along navigable rivers and creeks, year round. Consequently, navigability under federal law appears to be broad enough to cover the rivers and creeks in Colorado that modern-day fishermen want to fish in, or at least the ones that are in dispute. For example, it certainly covers the Taylor River and the Lake Fork of the Gunnison, both of which have carried plenty of railroad ties. Fishermen have the right, under federal law, to walk up and down these rivers while fishing, even where the river flows through private land (getting to and from the river at public access points.) On both of these rivers, present-day landowners use fences and signs to exclude fishermen, but they do so unlawfully.

The State Legislature could pass something to confirm fishing rights, but it doesn't really need to. There may be a few fishermen who want to fish in creeks that are too tiny, even at high water, for kayaks and railroad ties, but the fish in those creeks would seldom be of catchable size. Such creeks would be "not worth it" from the fisherman's point of view, so there would not be an issue worth addressing by the Legislature.

Legislation could cause new problems:

Action by the State Legislature could cause more problems that it solves. The various proposals for legislation, and the resulting brouhaha over fishing and boating rights, would tend to give many landowners the mistaken impression that the public does not presently have such rights. Most people hearing about the process would get the erroneous notion that the State Legislature has the authority to define fishing and boating rights without regard for federal law. The piece of legislation finally passed by the legislature could still be unclear about fishing and boating rights on a number of streams, and it could conflict with federal law, resulting in lengthy court appeals and disputes, and increasing confusion.

In particular, if the legislation were to declare that the public has different rights on navigable as opposed to nonnavigable streams, this would tend to trigger endless case-by-case appeals about which streams are navigable. The resulting confusion would most likely be much worse than the present-day state of affairs. This is why other Rocky Mountain states (Idaho, Montana, Wyoming,) have side-stepped the question of navigability and more or less confirmed public fishing and boating rights on all rivers and creeks. This is what the Colorado Legislature already did, sort of, in 1903 for fishing, and in 1977 for boating, as discussed above.

A more helpful alternative:

For the above reasons, we doubt that new legislation would reduce confusion (although we would still look at someone else's proposals.) On the other hand, it would be very helpful to further educate the public about existing law. This is why we favor the distribution of a printed folder that discusses existing law. Such a folder (and a similar web site) would go a long way towards reducing the confusion, rather than increasing it.

What should the folder say? As we discussed at the previous meeting, the folder may need to present three different legal points of view, rather than just one. Some forum participants seem to think that the public can handle only a brief mention of these three legal points of view, but it would be more helpful to give readers enough information to see what the legal dispute consists of. (Without over-complicating the folder, of course.) For example, it would be misleading to publish a folder discussing boating rights without mentioning the fact that federal courts have held a number of rivers to be navigable because those rivers are usable for canoes, kayaks, and rafts, or they were historically used to transport railroad ties. Even if the folder says that those decisions do not necessarily apply in Colorado, it still must mention that they exist. In addition, since historical uses are important in navigability questions, it would be misleading to publish a folder that does not mention that a number of rather small, steep creeks in Colorado were historically used to transport thousands of railroad ties downstream to construction crews. This is part of our state's heritage.

The folder can also explain the landowner attorneys' position, and it can cite the trilogy of state actions on the subject. (Being careful to mention that those actions specifically refer to nonnavigable rivers.)

Such a folder, while not "settling" the issue, would give readers enough information to see what the legal dispute is. Without it, the folder would leave readers in the dark, and would not help to reduce confusion. Readers would simply turn to other sources of information. Landowners would turn to Mr. Hill's seminars and flyers, which claim that "there is no right to float" through private land. Boaters would turn to Colorado Whitewater Association newsletters, and various government flyers such as the B.L.M. flyer, which claim that the public can float, but without touching the bed or banks. Fishermen would read various articles assuring them that many rivers and creeks in Colorado are navigable, so they have the right to walk up and down them through private land (getting to and from them at public access sites.) In sum, no progress. This is why it is so important to give readers enough information to see what the legal dispute consists of.

Would this information confuse the public? We have to ask whether including it would confuse the public, or excluding it would keep the public confused. It seems that some people don't want the public to know about federal navigability law, because they don't have a good reason for why it doesn't apply in Colorado.

Erecting signs to direct the public to existing river access sites:

Before discussing the question of easements, we would first recommend an inexpensive way of making better use of the river access sites that already exist. Where highways parallel rivers, erecting signs that direct the public upstream or downstream to public access sites would help people get to and from rivers without disturbing landowners. For example, where a highway first descends from the hills into a river valley, a sign could say, "River access site, 1 mile ahead." There are a lot of places in Colorado that need such a sign. This would be a very inexpensive way of increasing public enjoyment and reducing conflicts.

Easements to get to and from rivers:

Regarding state purchase of public easements to get to and from certain rivers, we can all agree that this would be a good thing, in certain places, at least on rivers that are clearly public. Obviously people need to be able to get to and from public rivers safely and legally. The first law passed by the first Congress of the United States said that the navigable rivers and "the carrying places between the same, shall be common highways, and forever free." 1 Stat. 50

Public access to and from navigable rivers is therefore a matter of public transportation. The law recognizes a network of public highways and roads throughout the state, and it recognizes a network of navigable rivers, which are public because they are usable for transportation (although the exact components of the river network are disputed.) The network of roads crosses over, or goes along, the network of rivers at numerous points. The law recognizes the public's right to get from public roads to various destinations along the way. (It would be silly to have a public transportation system that didn't allow people to stop once they arrived at their destination.) The taxes that the public already pays for highways and roads entitle the public to park and get to public rivers from public roads. Therefore the state's transportation agencies should provide for the public to park and get to public rivers, where highways and roads cross or go along rivers. The state should erect signs directing the public to these river access sites, as described above. Since this access is to be "forever free" under federal law, the state can't charge motorists extra for parking to get to public rivers.

In those instances where parking and access to the river would be facilitated by an easement over private land, we would certainly favor such an easement, as part of the state's transportation system.

Easements to boat and fish on rivers:

Since the public already has the right to boat and fish on a number of streams in Colorado under federal law, we would tend to oppose plans to purchase public easements for boating and fishing on those streams. In effect, the government would be paying private landowners for rights that the public already owns.

However, historians have noted that it would have been much cheaper, and would have avoided much human tragedy, for the government to buy liberty for the slaves in the United States rather than fighting the Civil War. In that situation, as in this one, title to the "property" in question was not originally conveyed to the "owners" by any court or government. In that situation, as in this one, certain state and local courts subsequently supported the claims of ownership, while national and international law rejected them. So in this situation, if the state of Colorado wants to give landowners the benefit of the doubt and pay them for public rights to rivers and creeks, we would not oppose such a plan.

Nevertheless, we would advise the state government that such a plan would be very hard to implement in actual practice. (This is just advice, not a position opposing such a plan.) Since funds for the program would be limited, only selected rivers could be "purchased." If the state were to buy easements on certain "disputed" rivers, the landowners on other rivers would expect compensation as well. Some of them would erect fences and barriers to boaters, if only to increase their chances of getting paid by the state to take them back down. If the state were to not pay them, they would become much more likely to call the sheriff or shoot at boaters, since the state's lack of payment would seem to be convincing proof that the public has no right to run those rivers. If boaters were to cut through the fences and barriers, there would be endless charges and counter-charges of destruction of property versus navigation rights versus menacing.

Some of the landowners opposed to river navigation are wealthy "second home" ranchers who simply do not need any money from the state. They would refuse to sell, leaving the state with rivers that are open for several miles, then private, then open again. If the state were to obligate the landowners to sell, a basic question of fair value would arise: How do you appraise the right to navigate a river, when there are no sales to compare it to, since nobody pays for the right to run rivers anyway? Would popular rivers be worth more than unpopular ones? How much more? Would scenic rivers be worth more than drab ones?

The state could buy public easements on quite a few rivers, but rivers runners, particularly those from other states, would not accept the claim that only those rivers are open to navigation and the rest are private--such a claim would conflict with federal law. Public navigation rights have never depended on what a state government is willing to purchase from private landowners. Decisions in Denver about which rivers to "buy" from landowners would not govern which rivers and creeks in Colorado are navigable by boaters from New Mexico or Missouri. Organizations such as ours would have to remind landowners that whether the state has paid them or not doesn't make a twit of difference.

State auditors would surely not accept the spending of public funds to acquire navigation rights that appear to be public already. Numerous organizations and politicians who advocate taxpayer rights and reduced government spending would also try to block the program.

If the state were to buy easements on various "disputed" rivers, the landowners on the state's most popular rivers would also expect to be paid. For example, if the state paid the landowners along the Taylor River or the Lake Fork of the Gunnison, the landowners along the Arkansas and the Colorado would expect to be paid also. After all, no court has designated the latter rivers as navigable.

This would become particularly silly on rivers that have been boated by people for many years. For example, the town of Salida has hosted national canoe and kayak races on the Arkansas River for generations, and rafting companies have operated there in large volumes for decades. Imagine the headlines if the state were to now start paying landowners for the right to boat the Arkansas!

This raises a basic question: Are the landowner attorneys at this forum saying that the only way to make kayaking and rafting legal on the Arkansas is to buy easements from all the landowners? Are they actually claiming that all those thousands of kayakers and rafters over the years have been trespassing? If so, when were the rights to navigate eliminated? Are they saying that navigation rights, which had existed since the dawn of time, and which were freely utilized in frontier days, were snuffed out when the first rancher obtained title to a ranch running across the river? Are they saying that designating the Arkansas as navigable, now or in the future, would be a "taking" under the U.S. Constitution? Are they saying that other kayaking and rafting rivers in the U.S., such as the Salmon and the Snake, which also flow through numerous ranches, are open to boaters only due to the largesse of the state courts or legislatures in those states? If so, how did those states affirm boating rights on those rivers without committing a "taking?" How indeed, if not due to the existence of a "right to float" in the first place? And what would be the source of that "right to float," if not federal statutes and case law (based on the ancient Law of Nature) affirming the right to navigate on rivers that are "navigable in fact" in kayaks and rafts? Is the Arkansas not navigable in kayaks and rafts?

On the other hand, if the landowner attorneys admit that the public does have the "right to float" on the Arkansas, where are they saying that right came from? Since no court or agency has ruled that the Arkansas is navigable, how did the public obtain the right to run it, if not from the fact that the Arkansas is physically navigable, and therefore legally navigable, under federal law? If they claim that the public's current right to run the Arkansas is only a tentative right arising from the state actions in 1977 and 1983, are they claiming that the boaters prior to that time were criminal trespassers? And if they admit that the public does have the right to run the Arkansas, or the Salmon or the Snake, how can they claim that the public does not also have the right to run the Lake Fork of the Gunnison? Does anything distinguish the Arkansas, or the Salmon or the Snake, from the Lake Fork of the Gunnison, legally? Is there a statute or case law saying that the public can only kayak on rivers that host national kayak races, or only raft on "well known" rivers? No, there isn't.

Either way, the legal argument of the landowner attorneys falls apart, and it becomes evident that the origin of the public's right to navigate the Salmon and the Snake is that they are navigable in fact, and therefore navigable in law, under federal statutes and case law. This is what shields states from "takings" claims when they affirm navigation rights on such rivers. If boating rights were nothing more than a creation of certain states, then those states would indeed be committing a "taking." But when states, and courts, affirm that a river is open to public use, they are saying that the river was public all along, not that it was previously private and is now public. They are simply affirming legal rights that already existed, not creating new rights. States, and courts, have affirmed public rights to navigate on thousands of miles of rivers over the years, and never paid opposing landowners anything.

Since states don't commit a "taking" when they allow boating on the Salmon or Snake rivers, they don't commit a "taking" when they allow it on the Arkansas or the Lake Fork of the Gunnison, which are navigable in the same way that the Salmon and the Snake are navigable. The public's right to navigate the Lake Fork did not originate with the Colorado Legislature's action in 1977, which merely affirmed boating rights that already existed under federal law. Consequently, boaters on the Lake Fork are not trespassing, in either the criminal or civil sense, so the state doesn't need to buy boating easements for them.

Federal law also recognizes the right to scout or portage around rapids or obstacles, and to stand and fish, on navigable rivers such as the Lake Fork, so the state doesn't need to buy easements for those activities either. (The state pronouncements about not touching the beds or banks do not apply to navigable rivers, and do not eliminate public rights that are recognized under federal law.)

What about other rivers? This forum has generated a list of "Troubled Waters"--rivers around the state where navigation rights are in dispute. The list includes the Taylor, Yampa, Colorado, Dolores, Roaring Fork, South Platte, White, Poudre, Eagle, Clear Creek, Bear Creek, Boulder Creek, and North St. Vrain. All of these rivers are navigable in fact, in the same way that the Salmon, the Snake, the Arkansas, and the Lake Fork are navigable. Indeed, this is the reason they are on the list--the public is navigating them, and certain adjacent landowners are objecting. Since these rivers are navigable in fact, they are navigable in law, under federal law, which (as the Colorado Supreme Court has affirmed) does apply to rivers in Colorado. Consequently, if we are going to further dispute public rights to rivers in Colorado, we need to come up with a new list of rivers. The rivers on the present list are already covered.

In sum, the idea of paying landowners for public easements to boat and fish on rivers may be attractive to some people, but it would conflict with federal law, and it would be very hard to implement in actual practice. It would tend to create more problems and confusion than it would solve.

Conclusions:

• Introducing new state legislation would be very likely to increase problems and confusion instead of reducing them. The resulting legislation could very well conflict with federal law.
• A state program of buying public easements to boat and fish on rivers would also tend to increase problems and confusion on the rivers not "purchased" for the public, and it would be very difficult to implement in actual practice. It would also conflict with federal law.
• On the other hand, a program of buying public easements to and from rivers, at certain convenient locations, would be helpful. Such a program would be an appropriate part of the state's transportation system.
• A program of erecting signs along highways that parallel rivers, directing the public upstream or downstream to existing public access sites, would be a very inexpensive way to increase public benefits and reduce conflicts with landowners.
• Publishing folders and a web site that discuss existing state and federal law would also be a helpful and inexpensive way of reducing problems and confusion, even if they were not conclusive on every point.

"Menacing" Landowner Arrested

A Gunnison county man found himself on the wrong side of the law after he called the county sheriff's department to complain about trespassing kayakers. Robert Arvon Gandy III was arrested July 2 after allegedly threatening a group of kayakers paddling the Taylor River.

According to the department incident report, the kayakers were legally floating on the Taylor, which runs through or alongside Gandy's property. Gandy, however, waved the party over to the bank, whereupon he informed the group they were trespassing and would have to leave the river immediately. He reportedly emphasized his point with a rifle. Thus motivated, the kayakers waited on a nearby roadside while Gandy's wife telephoned law enforcement officials.

Deputy Zay interviewed both Gandy and some of the kayakers, then stunned Gandy by placing him under arrest for menacing. He cited the kayakers' consistent and corroborating stories of Gandy's actions as cause.

River access issues have long been problematic in Gunnison county, where landowners frequently cite World War I-era water rights court rulings as the basis for laws regarding public access to navigable waterways.

Water Critters Get New Lease on Life

The Colorado Division of Wildlife latest effort is a rare aquatic species hatchery near Alamosa. The $6 million hatchery will be dedicated to raising threatened and endangered fish, amphibian, and mollusk species. The hatchery, located on what was known as the Chiles Farms, has been renamed the Playa Blanca State Wildlife Area.

Biologists and other workers must capture species on both federal and state endangered, threatened, and sensitive lists. They then must create environments in which the species can breed.

Setting the Animas-La Plata Water Rights History Straight

Long-time Colorado water conservationist Jeanne W. Englert corrected a recent editorial in The Denver Post regarding the proposed Animas-La Plate reclamation project. The Post printed her letter as follows:

"The Post endorses the latest version of the controversial Animas-La Plata reclamation project in the Four Corners. I say this: At least get your facts straight.

"This editorial states that the 'downsized version still compensates the Utes for land and water rights taken from them in 1868.'

"Wrong! The Confederated Ute Reservation was established in 1868. It comprised some 14 million acres, roughly one-third of what we know today as the state of Colorado. In 1880, Congress extinguished the reservation after the Meeker massacre in 1879. The Northern Ute bands--Uncompahgre, Pariah and Yampa--were then forcibly removed to the Uintah reservation in Utah. After much wrangling, the Mouache, Capote and Weminuche bands retained their territory in southwest Colorado, the Mouache and Capote band members accepting individual allotments and the Weminuche land-in-common.

"No land or water rights were taken from them, as The Post asserts. Reservation water rights weren't established until 1908. The Confederated Ute bands were awarded $31.4 million by the U.S. Court of Claims in 1950, then the largest such award in U.S. history, in today's dollars worth a hundred million. Plus, the contemporary Colorado Ute tribes, established in 1938, have some 100,000 acre-feet of water developed in federal reclamation projects in the Four Corners, enough water to supply Denver."

. . ."Justice has not been delayed or denied as your editorialist asserts. Both the U.S. government and the state of Colorado have fulfilled the solemn promises made to the Utes. What Post readers need is not your uninformed opinion, but a good, factual report."

For additional stories on the project, see stories four and five below.

Addition to Sand Dunes Monument Includes Aquifer

Proposals under consideration in the U.S. House and Senate would increase the Great Sand Dunes National Monument, and in doing so would also end a decades-long dispute over water allocation in the San Luis Valley.

The bills provide for the purchase of the 100,000 acre Baca Ranch next to the monument. Area residents have long worried that Baca officials, working on behalf of Stockman's Water Co., would yearly export up to 150,000 acre-feet of valley water to the Front Range, drying up available water resources for the region. By purchasing the land, however, and incorporating it into a national park and wildlife preserve, the water would remain within the ecosystem.

No planes in Rocky Mountain National Park

Colorado's congressional delegation spent five years convincing Congress to prohibit flightseeing in one of the state's premiere attractions. Former representatives Wayne Allard and David Skaggs, then-U.S. Transportation Secretary Federico Pena, a former Denver mayor, and current Rep. Bob Schaffer worked on legislation that has put a permanent ban on aircraft tours of the park.

So-called flightseeing has been the cause of increasing concern for park officials, conservationists, and park visitors, who have reservations about the impact noise pollution has on wildlife and on the quality of visitors' wilderness experience.

Environment on one side, economics on the other

Advocates for the Animas-LaPlata Project assert that the proposed reservoir could be just the ticket out of poverty for the Southern Ute and Ute Mountain Ute tribes, providing them with water rights, leasing capability, and job creation. Opponents point out that as the plan stands now, having all that water won't mean a thing without the water-delivery system to the Ute reservations that is currently lacking. To obtain a copy of the project plan, call the U.S. Bureau of Reclamation Four Corners Division at 970-385-6558 or 385-6500.

Conservationists, Native Americans at odds

The proposed Animas-La Plata reservoir has conservationists and members of the Ute Mountain Ute Tribe going head to head over its advisability. Tribal leaders argue that the construction of the reservoir would help fulfill an 1868 treaty guaranteeing them water rights. Although the tribe has no specific plans as yet for the water, they say it would help bring jobs and a better life to the 2,006 Ute Mountain Utes and the 1,370 Southern Utes living in the area. Conservationists claim the dam would damage the Animas River's "gold-medal trout fishery, its Olympic whitewater training area and one of the state's most popular stretches of river" for recreating, according to a letter from a coalition of conservation groups, including the Sierra Club and the National Wildlife Foundation.

Interior Secretary Bruce Babbitt has sided with the Native Americans, saying the tribe's have already made significant concessions to environmental concerns by scaling back the size of the dam and the area of the reservoir.

Fees in Dinosaur National Monument getting out of control

Dennis Adams, a board member of the Western Association to Enjoy Rivers, based in Grand Junction, CO, is raising serious concerns over the proposed fee increases in Dinosaur National Monument. According to Adams, the fees to use the Green and Yampa rivers could increase from $70 to $250 for multi-day runs and from $15 to $40 for day trips. Application fees, the nonrefundable cost of entering the permit lottery, would increase from $5 to $15.

Adams questions the legality is assessing the fees under "special use" regulations, pointing out that river travel is a legitimate and ongoing use of public property. Further, he is concerned that the funds raised would go toward unnecessary expenditures that may only minimally benefit the river users who are the very source of the monies.

Dennis Adams can be reached through email at DennyAdams@aol.com.

Experimental garden cleans up contaminated Colorado water

Frank Burcik's little green friends are having a big impact on the polluted waters in Leadville, CO.

Burcik is finding that filtering water contaminated by a century of mining through his experiemental hydroponic garden leaves it 74 percent cleaner. The process removes zinc, manganese, aluminum, arsenic, cadmium, copper, iron, selenium, and silver, all of which are utilized by different plants. The plants are then harvested and a new crop is sown.

Burcik hopes that the Leadville mines will offer new economic opportunities in the town by attracting more research on water and soil decontamination and a new industry in environmentally-friendly gardening.

SPECIFIC RIVERS Click to jump down to descriptions and news about:

Alamosa River

Arkansas River and Headwaters Recreation Area

Colorado River

Dolores River

Roaring Fork River

Alamosa River

Engineers set river back on its natural course

The Alamosa River is up for a realignment and detox treatment. For the full story, go to U.S. news.

Arkansas River

Landowner claims river ownership

Two kayakers are challenging the claims of a Buena Vista-area landowner that her property extends to the deepest part of the Arkansas River.

The two kayakers were escorted away from the river by the sheriff's department while scouting the rapids from the banks, below the high water mark. (Federal law makes land below the regular high water mark public property; river users may go above this line in order to scout or otherwise safely negotiate a treacherous stretch of river.) They, in turn, contacted the Colorado White Water Association, whose volunteer legal advisors discovered a flaw in the landowner's assertions. It appears the property ends 45 feet from the center of the river, thus putting the kayakers within the law.

For more information, email jaypkkk@aol.com or call him at 303-722-0722.

Changes in boating allocations likely

The number of commercial and private boats at Railroad and Fisherman's bridges, Hecla Junction (Brown's Canyon), and Royal Gorge may change in 2000 if the recommendations of a citizens' task force advisory committee to the AHRA management team go into effect. The Railroad Bridge may see an increase in commerical launches from 30 to 60 boats a day, while private allocations will increase to 350 per day. Fisherman's Bridge and Hecla Junction will retain its current commercial status but private boats may rise from 150 a day to 250 a day. Changes to Royal Gorge use, from 150 commercial launches per day to 200 or 225, are dependent upon a safe management plan.

River runners can review the draft AHRA plan and comment on it to the AHRA and the citizens' task force. The private boaters are represented by P.T. Wood (ptwood@amigo.net) and Jay Kenney (jaypkk@aol.com).

Colorado River

Colorado River cutthroat trout recovery making strides

A coalition of conservation groups has filed a petition requesting federal protection for the Colorado River cutthroat trout. But Colorado Division of Wildlife biologists say they found nearly enough populations of the native fish to meet their long-term objectives to maintain populations with Colorado.

In April, 1999, wildlife officials in Colorado, Wyoming and Utah signed an agreement with the U.S. Fish and Wildlife Service to develop and begin implementing a five-year recovery plan to protect existing populations of Colorado River cutthroats and restore the Rocky Mountain native salmonid to a portion of its native range.

Protein testing has brought some unexpected results as well. What was thought a pure population of Colorado River cutthroat trout in Bench Lake in Rocky Mountain National Park was identified by DNA testing at the University of Montana as a hybrid population of Colorado River and Yellowstone cutthroats. Additional tests will be conducted to verify these results because the lake has great utility as a brood fish water.

The Colorado River cutthroat is one of seven subspecies of trout native to the Rocky Mountains. Once common to portions of the Colorado River drainage in Wyoming, Colordo, Utah, Arizona and New Mexico, its historic range included the Green, Colorado, Yampa, White and San Juan river basins. Due to habitat destruction, overfishing and hybridizaiton and competition with non-native salmonids, scientists believed that by 1979, relatively pure strains of Colorado River cutthroats inhabited less than 1 percent of its former range, surviving largely in headwater streams and lakes above 7,500 feet.

Colorado has three native cutthroat trout: the Colorado River, Rio Grande and greenback. Colorado's other native cutthroat, the yellowfin, has been extinct since early in the 20th century.

The greenback cutthroat is federally listed as threatened but may soon be recovered to the point where it can be removed from the list. Conservationsts have now filed for federal protection of the remaining rive subspecies, including the Bonneville, Yellowstone, WEst Slope and Rio Grande cutthroats, saying they are threatened or endangered thorughout their historic ranges.

The tri-state Colorado River cutthroat conservation strategy, possibly the most ambitious plan for a landlocked native fish, calls for protection or restoration of an estimated 1,754 miles of streams and 652 acres of lakes with a goal of maintaining more than 400 self-sustaining populations of the native fish.

Dolores River

Dolores River Water Transfer Proposed

[From the Grand Canyon Private Boaters Association (www.gcpba.org) listserve:]

An additional 8,000 acre-feet of unused Dolores River water is proposed to be diverted from the river. The Bureau of Reclamation has requested public comment on a proposed "carriage contract" to allow the Dolores Water Conservancy District (DWCD) to transport additional water through the canals and pipelines of the Dolores Project that was constructed by the BuRec with public tax dollars. An environmental assessment (EA) has been prepared analyzing the carriage of 6,000-8,000 acre-feet of water presently unused by the Montezuma Valley Irrigation Company (MVIC). MVIC plans to sell the water to DWCD, and DWCD will use the water to irrigate new lands not presently under irrigation.

WHY SHOULD YOU CARE? This proposal takes more water out of the Dolores River system. Currently, the unused 8,000 acre-feet has been left in McPhee Reservoir every year where it has been allowed to run downstream to benefit fish and boaters. 8,000 acre-feet of water equals enough water for five days of flows at 800 cfs, or one-sixth of the entire boating season this spring. A second reason for concern is that this unused water came primarily from lining or piping the ditches and canals to reduce salinity impacts. We have a treaty obligation with Mexico to reduce salinity in the Colorado River at the border, plus it pays to limit salinity for produce growers using Colorado River system water in California. Consequently, the federal taxpayers have footed the bill to improve irrigation efficiency and reduce waste to lessen salinity. The public paid to clean up salinity in the Montezuma Valley, and at the same time this saved wasted water. Now another water district (DWCD) wants to use this very same water that we, the public, paid to save and spread on more dry ground and increase salinity. The DWCD hopes to pay MVIC for the unused water by obtaining a loan with a 2% annual interest rate from the Colorado Water Conservation Board. This is half the normal interest rate for such loans. Not only has the public paid for the salinity program that made the extra water available, now we are supposed to subsidize the DWCD's purchase of this extra water at ridiculously cheap loan rates.

SUGGESTED COMMENTS The Bureau of Reclamation wants to treat this as a simple contractual transfer and avoid serious consideration of the environmental consequences and salinity impacts from the change in use of the water. These suggest the basis for comments: 1) The draft EA makes no attempt to analyze the salinity impacts of the proposed water transfer. The EA should quantify the salinity reduction achieved by the original salinity control efforts, and similarly quantify the expected increases in salinity resulting from irrigating new lands. The same analysis should also calculate the costs to the federal taxpayers of the original salinity control effort, and the costs to downstream users from increased salinity resulting from the new irrigation. 2) Since the public paid for the efficiency increases that resulted in the available excess water, the Bureau should analyze alternatives that provide some public environmental and recreational benefit. Request that an alternative be created and analyzed that uses some water for improving the Dolores River late summer trout fishery or that allocates some water for recreational boating flows. 3) If no public benefit is achieved in this water transfer, then request that the water users be required to reimburse the federal taxpayers for the cost of the salinity control program. Why should we pay to reduce salinity, only to see the saved water poured on new lands where the salinity will simply once again increase?

SEND COMMENTS BY AUGUST 20, 2000, to: Carol DeAngelis, Area Manager Bureau of Reclamation Western Colorado Area Office 2764 Compass Drive, Suite 106 Grand Junction, CO 81506 or email: CDEANGELIS@uc.usbr.gov A copy of the EA is available by calling Steve McCall with the Bureau at (970) 248-0638. For information on the San Juan Citizens Alliance Dolores River Wild lands program, contact Mark Pearson @ mpearson@frontier.net gcpba thanks Kent Ford @ kford@riversports.com for the above information.

Roaring Fork River

Chemical de-icer runoff concerns citizens

Two probes in the Roaring Fork River -- both at the campground on Independence Pass -- will be monitoring levels of magnesium chloride in the water.

The chemical is commonly used to de-ice roadways, but residents are concerned that it may also cause respiratory problems, may adversely affect wildlife licking it from the roadsides, and could damage aquatic life once it reaches the river in runoff.

Aspen, Snowmass, and the Carbondale Board of Trustees do not allow use of magnesium chloride for de-icing.

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