Living on Easement Street

There aren’t many rivers in the Rockies more appealing in late September than Colorado’s lower Taylor, which sits halfway between Crested Butte and Gunnison and is known nationally for its monster, mysis-shrimp-filled rainbows that inhabit the short tailwater section below Taylor Park Reservoir. The river received national attention of a different sort in the spring of 2010, when Dallas-based developer Jackson-Shaw purchased a 2,100-acre riverside ranch, named it Wilder on the Taylor, divided it into 26 parcels, and notified two local rafting companies—Scenic River Tours and Three Rivers Outfitting—that they were no longer allowed to float past the Wilder on the Taylor property, as doing so was akin to “walking across my front lawn,” according to a letter written by Jackson-Shaw president Lewis Shaw.

I wasn’t thinking of Shaw during my September visit to the Taylor. I’d driven from Paonia to Crested Butte over the very scenic Kebler Pass, then headed south on 135 over the East River, hung a left at Jack’s Cabin Cutoff, and soon arrived at Harmel’s Ranch, where I paid a reasonable $50 fishing-access fee (late season rates) and proceeded to work a lovely if somewhat fabricated stretch of river, eventually crossing over to the west bank where I got a nice 14-inch ’bow to come up and eat my Goddard. It was the perfect ending to a perfect autumn day. But I didn’t feel so perfect a couple weeks later, when an acquaintance showed me a deed for Harmel’s property that was dated July, 1959, and contained a sentence about the area I’d fished: “Reserving and hereby dedicating to the public, in perpetuity, a foot path along the West bank of Taylor River running through said property for foot fishermen.”

Had I really paid $50 to fish public water? Along one of the most famous and controversial lightning-rod rivers in the country? Anyone following recent public-access battles knows that this is an increasingly common question. In July, three men were being sued by private landowners for fishing a section of Virginia’s Jackson River that is listed as public by the state’s own Department of Game and Inland Fisheries. Then, in September, the always vigilant Utah Stream Access Coalition discovered a public fishing easement along the lower Provo River, where Division of Wildlife Resources officers had previously issued trespass citations on behalf of landowner Steve Ault. And last year in California, a group called Friends of Hope Valley filed suit in Sacramento’s U.S District Court to preserve what they claim are historic public access rights along Pleasant Valley Creek near Tahoe.

But nobody left a larger legacy in the world of privatizing public water than the much-maligned Donny Beaver, who in 2008 finally dropped his five-year case against the state of Pennsylvania, which had ruled that the 1.3-mile stretch of the Little Juniata River he’d been advertising as private was actually navigable and open to the public.

Unlike the Provo situation, I wouldn’t suggest anyone rushing to Harmel’s to fish that easement. First, you have to trespass to get to it. Second, owner Steve Roberts, who I spoke with on the phone, says it only restricts what he can build there. (“It’s still my property. Not anybody else’s.”) As with many of these cases, a good attorney could probably make a compelling case for either side. But the biggest reason would-be trespassers shouldn’t poach his property, is that it just doesn’t make good fishing sense. With 70 percent of Gunnison County owned by state or federal government, if you can’t find a fish on the 18 miles of Taylor River not flowing past Harmel’s, then you’re either incredibly lazy or a pretty shitty fisherman or both.

When I first called Roberts he didn’t like the idea of me bringing any attention to his deed: “That’s going down the wrong road with me, Tom.” So it’s fair to say that our conversation didn’t start out very well. But once we got to talking, he brought up many fair and reasonable points. We ended up speaking for more than an hour, with my strongest take-away being that he has no problem with private boaters paddling past his property—a view that seems to have been lost when he and his brother teamed up with Jackson-Shaw. Shaw’s comparison of the Taylor to his “front lawn” was aimed specifically at the two commercial rafting companies. But it was heard by every boater in the state, some of whom saw the Roberts brothers as traitors.

“They’re the local boys who sold out,” says a longtime Gunnison Valley resident and rafter, and the person who showed me their deed. “When this all went down originally, it was between Lewis Shaw and the rafting companies. But the Roberts’ threw their hat in the ring because they wanted to put a local face on it.”

Roberts sees it differently: “The rafters were always able to push me around, because I never had any money to fight them,” he said. “Well, then one of my neighbors moved in who had money.”

Roberts loves to say that “the rafters caused all this trouble,” but the irony is that if he and his brother, Brad, wouldn’t have joined forces with Jackson-Shaw, it’s unlikely the rafters would have been so motivated to dig up his deed.

The 2010 Taylor situation received wide press coverage, including stories in The Wall Street Journal, Business Week, and the New York Times. But most reporters framed the debate as a battle between fishermen and rafters, when the real conflict was between riparian landowners on one side and rafters and anglers on the other. HB1188, aimed at protecting the “Right to Float,” passed the House, and several competing ballot initiatives were proposed by both sides before Colorado Governor Bill Ritter intervened in July and created the “River Access Dispute Resolution Task Force” as part of an agreement with stake- holders to drop the ballot measures. The task force eventually led to the appointment in September 2011 of a three-person “River Access Mediation Commission”—one person representing the boating community, one representing private landowners, and one representing the Department of Natural Resources, each appointed to a four-year term.

While the commission is pretty toothless (participation by disputing parties would be voluntary, and the commission doesn’t have the power of arbitration), it is nonetheless tasked with “convening on an as-needed basis to help mediate and resolve particularly acute disputes between boaters, either commercial or non-commercial, and the relevant private property owner or owners.”

I’m not sure if it will work, but I’m betting that meaningful dialog and mutual respect—not landowners closing off public rivers, or rafters seeking out obscure 50-year-old easements—will give any agency or group of individuals a better shot at long-term resolution than option B: an expensive, relentless, steady stream of litigation.

In the spirit of mediation, and inspired by Trout Unlimited’s recent withdrawal as a plaintiff from a federal salmon-recovery lawsuit, (they will instead “seek resolution through a collaborative forum”), there are two points on which I hope Roberts and I, as well as others, can agree: 1) That private rafters, kayakers, and fishermen should always be allowed to float past private property, because the rivers themselves are in the public domain. 2) When landowners invest in fish-habitat restoration, they should have a fair and adequete opportunity to earn a return on that investment. But not at the public’s expense.

As for Jackson-Shaw and the two rafting companies, both sides signed a four-year agreement that allows limited floating through the Taylor River property. After those four years? Maybe the Mediation Commission can help broker an easement for the rest of us.