< PREVIOUS ] [ 2004 Index ] [ Ed Quillen HOME ] [ SEARCH ] [ NEXT >
About 75 miles west of here, about four miles south of the summit of Marshall Pass, there's a rather non-descript hillock which got a formal name, Headwaters Hill, in the summer of 2001. It's only 11,862 feet high, and it's dwarfed by nearby summits like 13,266-foot Antora Peak.
So this little mountain doesn't really stick out. Even so, over the years, several people had discovered the distinction of this peak: It's one of only five significant triple divides in the lower 48 United States.
Water can flow from the west side down Marshall Creek to Tomichi Creek to the Gunnison River to the Colorado River, and then, in theory at least, to the Pacific Ocean. On the east side, water flows into Silver Creek, then to Poncha Creek, the South Arkansas River, the main Arkansas River, the Mississippi River, and the Atlantic Ocean at the Gulf of Mexico - again, this is in theory.
And on the south side, water flows to Middle Creek, then Saguache Creek, then San Luis Creek and San Luis Lake, where it settles into the Closed Basin. If you looked at a map, you'd think this water should go into the Rio Grande, and in practice, that's what happens, thanks to the United States Bureau of Reclamation.
After all, as George Sibley of Gunnison once observed, the Bureau has a clear mission: To fix the mistakes that God made in plumbing the American West.
George was one of those who found out that Headwaters
Hill was a triple divide, and for several years, he led a
hike up it every fall. For several years, the outings were
called naming quests,
and out of respect for those
who lived here before us, I contacted a Ute friend and
asked him for the term for Place where a man can urinate
into three basins at once without taking a step.
He
came up with one, but the word had 41 letters, took a week
of practice to pronounce, and would not have been accepted
by the U.S. Board on Geographical Names. So I ended up
supporting the name Headwaters Hill, which was duly
assigned.
On the first hike after it was named, as about two dozen of us gathered on the summit, George asked some of us to tell a brief story about our drainages. I was the spokesman for the Arkansas, and since I was a chain-smoking keyboard jockey who was out of breath, the story had to be short.
The story I told about the Arkansas goes back to a wet year, 1983. In Colorado, wet years are so rare that we remember them clearly. That August, I went to the family picnic, and encountered one of my cousins, who farms wheat in western Kansas. He seemed rather put out by the wet weather, and I asked him if it had interfered with his planting or harvest.
Sure did,
he said. I had a hell of a time
getting my machinery out of the muck and mud.
I made further inquiries. He had parked his machinery in the bed of the Arkansas River. I asked why he'd do that.
Because I thought that if there was one thing I could
absolutely rely on, it was that you sons of bitches in
Colorado would never let a single drop of water get into
Kansas, and you let me down.
That short exchange seems to explain a lot about the Arkansas River and the cordial interstate relations it inspires.
I told him we'd try to do better in the future, although I understand that Kansas brought some litigation in an effort to prevent us from performing our duty of protecting his farm machinery from water damage. And I must observe that there is one tactic that we haven't tried - the argument that it isn't the same river. After all, we call it the Arkansaw, just as they do in Arkansas and Oklahoma. The Sunflower State calls it the Ar-Kansas. Now, they can call it whatever they want to, but if they want us to respect our compact obligations, then we need to be sure we're talking about the same river.
My Grandfather Quillen used to joke that the Arkansas was the only river in the United States which changed names when it crossed a state line. But the name change is to some degree a reflection of reality - in a sense, it is two rivers: An upper one known to the Spanish as the Rio Nepestle or Napesta, and a lower one known to the French as the Acansa.
Only in wet years were they truly connected. Often they
were separated by a dry stretch, and this happened long
before there were any water lawyers in Colorado. Indeed,
it happened before there was a Colorado. During the heyday
of the Santa F Trail in the 1830s and '40s, wagonmasters
wrote that there was no water flowing in the Arkansas for
15 or 20 miles in the vicinity of the modern state line.
There were occasional pools, and where there weren't pools,
they could dig shallow wells three or four feet deep in the
river bed, and thereby water their oxen. And this, of
course, was along what was known as the Wet Fork
of
the Santa F Trail.
To this day, it might be simpler to talk about the
Napesta, rather than the Upper Arkansas,
but it
might not help with the important business of attracting
tourists. Some authorities say Napesta is derived from the
Osage term Ne Shusta, which means Red Water,
which
means it means the same thing as the Colorado, and that
would cause no end of confusion if we ever got around to
actually adopting Official English here in the State of
Red. Others trace it to some corrupted Spanish from La
Peste, or stinking place. On the other hand, Pagosa means
Stinking Water in Ute, and it seems to do a fine job of
attracting tourists.
Anyway, I'm wandering off-topic here. According to the program and to Reed Dils, who graciously invited me to talk when he cornered me in the Salida Wal-Mart parking lot one cold windy afternoon a couple of months ago, I should be presenting A Revisionist History of Beneficial Use of Water in the Arkansas Valley.
Now, I'm not fond of the term revisionist
history,
because our history should be in the process
of constant revision as we dissever new information about
the past, like old letters and diaries that had not been
previously known. Scientific techniques, like radio-carbon
dating and tree-ring chronologies, constantly improve, as
do archlogical techniques. In other words, all honest
history is revisionist history.
For an example of revisionism, I used to brag that the Arkansas had both the highest point in Colorado, 14,431-foot Mt. Elbert, and the lowest, the river at the state line at 3,350 feet. However, recent research has demonstrated that the lowest point is 3,315 feet, where the Arikaree (or a-RICK-a-ree, I don't know how it is pronounced, or maybe it changes at the state line) crosses into Kansas. Alas for the fame of our river, it's not even a tributary of the Arkansas. But it is a small world. The person who did that research is Dale Sanderson, and it was he, along with George Sibley, who discovered the distinction of Headwaters Hill.
However, the critics of revisionist history have
something else in mind. They start with Traditionalist
History, which is also Triumphalist History, as in the old
adage that History is written by the winners.
So in
the United States, we have what I have called Eastern
Seaboard Standard History, which basically holds that
America started in Boston and steadily moved west.
This version holds some truth, of course, but it neglects many important factors. For instance, if there was a steady westward progression, then why was the West Coast settled by Americans before the Interior, where we live? And how did all those Spanish place names get here if the Yankees were the first white folks in the neighborhood?
When the United States began, the upper Arkansas River was unknown territory. They knew about the lower end of the river, where it joins the Mississippi, but the source was a mystery. Solving that mystery became important 201 years ago, when the United States spent $15 million on the Louisiana Purchase. Its boundaries were not precise, but were based on a French claim to the Mississippi River and all its tributaries.
The eastern side had passed into British and then American hands, and the western side had gone to the Spanish and back to the French before America made the deal with Napoleon in 1803. The Arkansas is the last significant river to flow into the Mississippi from the west, and so tracing its course would allow the United States to learn just what it had supposedly purchased from France.
That's one reason that General James Wilkinson ordered Lieutenant Zebulon Montgomery Pike to lead an expedition west from St. Louis in the late summer of 1806.
At least, that's one official reason. The revisionists are more interesting. Wilkinson was conspiring, at least to some degree, with Aaron Burr, then the vice-president of the U.S., and soon to become the first and only vice-president to be tried for treason. Wilkinson and Burr had a scheme to set up their own republic in the western hinterlands of the U.S. Wilkinson was also in the pay of the Spanish, so he was at least a double agent, and to this day, we don't know what his real plans were or where his true loyalties lay.
Thus we're not sure whether Pike was a loyal officer of the United States Army, or a double agent who was assisting in Wilkinson's schemes by going west to spy on the Spanish and report back on their military status, so that Wilkinson and Burr would know what they were up against when it was time to start their own country out here.
At any rate, Pike was supposed to go west and ascend to the headwaters of the Arkansas, then proceed south, find the headwaters of the Red River (the stream that forms much of the border between Texas and Oklahoma, and the next river into the Gulf as you move west from New Orleans), and descend it. Thus could the boundaries between the U.S. and Spain be established. The problem with Pike's orderes was that nobody then knew that the Red River starts in the panhandle of Texas, not the mountains of Colorado.
Pike ended up in the San Luis Valley where he got arrested for trespassing by Spanish soldiers, but most of his adventures were along the Arkansas. After attempting to climb the mountain that now bears his name in late November of 1803, he reached where we are today, the mouth of the Royal Gorge, on Dec. 7.
He was supposed to find the headwaters of the Arkansas,
and here he was, standing before a deep, rugged chasm on a
winter morning that was colder than a banker's heart. He
did what any good officer would: he sent some privates into
the canyon. And the privates, according to Pike's journal,
reported that they had ascended until the river was
merely a brook, bounded on both sides with perpendicular
rocks.
Nowadays we know that the river never becomes merely a brook within the Gorge, so we also know the truth. The privates climbed into the canyon until Pike couldn't see them, loafed for the day, and returned with a made-up story about what they had seen. I was a private once, and I would have done the same thing, and thus I feel heartened that this fine American military tradition goes back to 1803.
Pike did get pretty close to the headwaters of the Arkansas, although when he was there, up near modern Hayden Flats in the Granite area, he thought he was at the headwaters of the Red River.
All this is by way of introduction to the first
beneficial use
of the Arkansas: as an international
boundary. After Pike, Americans kept wandering west into
Spanish territory; despite Pike's efforts, no one was quite
sure where U.S. territory ended and Spanish territory
began. So the diplomats went to work, and the result was
the Transcontinental Treaty of 1819, negotiated by U.S.
Secretary of State John Quincy Adams and Don Luis De Onis,
ambassador to the United States from Spain.
It had several provisions. One was that the United States would forever renounce any claim to Texas, and there are days when I wish we had kept to that part of the treaty - that we were indeed, as the Traditionalists claim, a nation that always kept its word on treaties.
The relevant one was that the Arkansas River would form the boundary from the area of Dodge City to its headwaters. And since no one at the treaty table knew where the river started, they agreed that if the source was south of the 42nd parallel, which it is, then the boundary would go due north from the source to the parallel.
The Arkansas didn't even do a good job as a boundary,
because it turned out that there was a chunk of real estate
that was east of this line, but on the western slope and
thus not part of the Louisiana Purchase. That's why
Breckenridge celebrates a No Man's Land
festival
every so often. As a former Breckenridge resident, I have
to point out that we didn't need much of an excuse to hold
a party, and that was as good as any.
This boundary stayed in effect after Mexico gained its independence from Spain in 1822. There were those who found this boundary useful. That's why Fort Pueblo was built, and then populated by hard-cases who were wanted in one country or another; when the law came around, which was seldom, it was a simple matter to move to another jurisdiction. All they had to do was wade across the Arkansas to be beyond the reach of either American or Mexican law, depending.
This first beneficial use of the Arkansas lasted until
1846, when the United States conquered Mexico and took
its northern provinces. Now, I don't want to be one of
those nasty revisionists who, in Bob Dole's words,
questions the nobility of the United States.
So
I'll just quote from one of the American soldiers in that
war, a young lieutenant who was distinguished for his
bravery: the Mexican War was one of the most unjust ever
waged by a stronger against a weaker nation,
and it was
in fact a conspiracy to acquire territory out of which
slave states might be formed for the American
Union.
That Army lieutenant was Ulysses S. Grant, who went on to become President of the United States, and when he was beset there by a scandal known as the Santa F Ring, he remarked that it would almost be worth going to war again in order to force Mexico to take New Mexico back.
While Grant was in office, Colorado became a state of the union - a state with the doctrine of prior appropriation for beneficial use embedded in its constitution. Now, you've heard from Greg Hobbs, who knows more about the history of our water laws than any three other people combined. But there's an element in this history that is often overlooked -the philosophical attitude of the era.
In other words, people of the 1860s and '70s, when our water doctrines were being formulated, had a certain way of looking at the world, and that was reflected in the laws they wrote and the institutions they formed.
So, we need to look at the attitudes of that era, which
were much influenced by the dominant political party of the
time, the Republican Party. And that, in turn, was greatly
influenced by the party's first President, Abraham Lincoln.
But even before Lincoln was nominated, the Party had a
philosophy of empowering the little guy
(remember,
I'm talking about Republicans of 150 years ago, not the
current crowd).
One empowerment was the Homestead Act, which had often been proposed before the Civil War, but always defeated by the Southern bloc in Congress, or vetoed by a Democratic president who was beholden to the South. The Homestead Act gave you 160 acres of the public domain if you were willing to work that land and make something of it.
Consider the reasoning. One was that public resources were transferred to private hands, as that was considered the best way to develop the territory. Another was that the grant was limited to what might support a family.
We were to learn, at the cost of much heartache and deprivation, that 160 acres wasn't nearly enough land to support a family in the dry country west of the 100th meridian, unless there was irrigation, in which case 160 acres was more than a family could handle then. But the facts on the ground don't change the principle - they're not giving away big plantations, but just as much as people could reasonably use.
So there are the principles:
1) Develop the territory
2) by transferring public property to private parties
3) who get no more than they are able to use
4) but they have to use it.
The Homestead Act became law in 1862. We can see the
same principles at work in the Mining Act of 1866 and its
successor, the General Mining Act of 1872. Again, the
public domain was being transferred to private hands. But
the miner couldn't claim any more than he was willing to
develop, and that was insured by the requirement that the
prospector perform assessment work
amounting to at
least $100 each year. Otherwise, he would lose his claim to
someone willing to do the work.
Now, revisionist historians will point out that there were gross abuses in both the Homestead and Mining Laws. Big cattle outfits paid their cowboys to take up homesteads around water holes, so they could control much more range than they owned, and big mining companies employed armies of engineers and attorneys (see, I told you there were similarities with water law) to acquire larger mining properties. But like a good traditionalist historian, I'm focusing on the noble principles that underlay these laws, not the the sordid perversions produced by greed.
With these principles in mind, let us consider the provisions of Colorado water law, as enshrined in our state constitution of 1876, during that era of developing the West by empowering the little guy.
The first thing to keep in mind is that the Indians
didn't count, because they were nomadic warriors who
preferred to wander around and hunt and fish and fight. Or
as my wife puts it, they were a guy culture,
because
the women got stuck with the corn-grinding and
hide-scraping chores. At any rate, they didn't deserve to
keep the land because they didn't put it to beneficial
use.
Consider this quote from John Evans, a good
Republican and second territorial governor of Colorado: It
is ridiculous
that a country 1,000 miles long and
500 miles wide, one of the most fertile in the world,
should belong to a few bands of roving Indians.
Let's look at prior appropriation. The homestead belonged to the family who got there first. So did the mining claim. And under Colorado's law, so did the water right.
Or at least, it could belong to the first claimant.
Under this philosophical system, the resource had to be put
to beneficial use.
You couldn't just sit on it. You
had to put up a house and a fence and live there to get a
homestead patent. You had to develop that mine, at least to
the extent of annual assessment work, and generally to the
extent of demonstrating that there was an economically
viable ore body, to get a patent on the mining claim.
And you couldn't just claim the water, but let it flow on down the river until you felt like doing something with it. Instead, you had to invest money and labor to divert the water from its normal course.
Even after that work, you couldn't just take the water
out of the river. You had to put it to beneficial
use,
and that meant you couldn't take water you weren't
going to use.
So if we look at the developments through this lens, we
can see that Colorado's water system was more or less a
natural outgrowth of the era. It followed the same
rules of development
as land and minerals. You
could claim it for personal property from the public
domain, providing that you developed and used the resource
in a sensible way.
If any of you out there feels like providing some grant money so that I could spend a couple of years developing these observations, I'd be glad to write a book explaining it all in more detail, and if you're in that position, please feel free to contact me after this talk.
But even without the book, I hope the outlines are clear
now. Beneficial use
of water is philosophically the
same thing as extracting the gold from the vein
in a
mine, or raising a crop
on a homestead. Our courts
have taken it to mean putting the water to some purpose
that serves an economic value.
Now let us move to our own Arkansas valley. A few years
ago, I ran into Virginia McConnell Simmons right after she
had published a history of the upper Arkansas valley. For
some reason, she wasn't in a good mood, even after I
complimented her on the book. She thanked me, but said she
could have written the history in just one word. What word
was that? I asked. Exploitation,
she replied.
Maybe she's a revisionist historian, too.
But her word often fits when we look at the history of
beneficial use
along the Arkansas, at least when we
consider who benefits from that use. In the upper river,
the first diversions were for mining, starting with the
placers of Cache Creek and moving soon to Oro City, near
present Leadville. Indeed, the silver discoveries of
Leadville came about because two investors were digging a
ditch to bring more water in to process the placer
gold.
And these diversions for beneficial use illustrated one flaw in Colorado's pioneer water laws. The laws initially concerned only quantity, not quality. That is, as long as you delivered enough water to senior downstream users, it didn't matter that the water was full of crud. Thus for many years, the Arkansas served as a convenient industrial sewer -we could call that an unintended beneficial use.
That use continued into the 1980s, when every so often the Yak Tunnel outlet would overflow, and the river would turn orange. There were many of us in Salida who worried about the environmental damage. But on the other hand, we saw it as a useful growth-control mechanism, one that should have functioned well to prevent the wrong kind of people - the upwardly mobile sorts who fret constantly about their little Jasons and Jennifers - from moving into our valley.
Indeed, the upper valley of 20 years ago was a great
place to live. Or at least we pretended it was. The economy
was so depressed that we couldn't sell our houses, so we
were stuck there, with houses but without jobs. My wife
observed that I and most of my friends were pretty much
unemployable by mainstream America anyway, but it was
fortunate that we had this gorgeous high-mountain valley
all to ourselves -a valley she called The Losers'
Reservation.
Our reservation eventually got discovered, and there came a new form of exploitation; that is, another way to use local resources for the profit of someone who lives somewhere else. Granted, there are quite a few local rafting outfitters, but there are many companies who come in from Colorado Springs or Aspen or Vail with a busload of day-trippers, and who depart without spending a nickel along the Arkansas.
The growth in rafting led to a conflict which some
clever person (I wish I had thought of it) named Row v.
Wade.
Basically, the rafters wanted strong flows all
summer, while the fishermen wanted low late-summer flows
for the benefit of the brown-trout fishery.
While researching this controversy for some publication, probably High Country News, I talked to an old timer, who told me the brown trout had thrived and grown to immense proportions back in the old days before Salida started treating its sewage in 1951. Old-timers are always telling tall stories about how things used to be better before progress arrived, so I didn't think much of it. But a fisheries biologist showed up at a local computer user group meeting one night, and as we relaxed at a saloon afterward, I asked him.
Oh yeah,
he said. Brown trout love human fecal
matter. Within reason, it's really good for them. That
old-timer wasn't pulling your leg. If we were managing the
river only for the fish, there would be no sewage
treatment.
His comment made me respect old-timers more. It also made me rather apprehensive about ever eating brown trout again.
At any rate, the a compromise flow regime was
negotiated, and thus we have two more beneficial
uses,
neither really recognized by state law, for the
Arkansas: a fishery and a current to carry rafts. Both are
important to the local economy.
If I had time, I could go into some of the other
distinctions of the Arkansas; for one thing, it is the only
river basin in Colorado which both imports and exports
significant amounts of water -in both cases, for
beneficial use,
which ranges from Rocky Ford melons
to green lawns in Aurora.
When the Aurora diversions started to happen, I must confess that I was sufprised. I moved to the Arkansas basin in 1978; for the four years before that, I worked in Grand and Summit counties. At the newspapers I edited in those counties, I had to write dozens of stories about water diversions and threatened water diversions from the Western Slope.
So I was greatly relieved to move to the Eastern Slope,
where I thought I would be on the receiving end of those
diversions, and I wouldn't have to worry about my own
county getting dewatered or put under a reservoir. I
figured there was a sort of honor among thieves
with
Eastern Slope diverters.
So much for my foresight. There is the old saying,
which Bob Ewegen at the Post and I have agreed to credit to
former Governor John Love, that in Colorado, water flows
uphill to money.
To check on that, I got some census numbers concerning median household income, arranged by county. I followed the South Platte, county by county, from the headwaters in Park County to the Nebraska line at Sedgick County. I did the same thing for the Arkansas, from Lake to Prowers.
The average household income along the Platte was
$49,527. Along the Arkansas, it was $30,813 - not even
two-thirds as much. And that, I submit, is the real reason
that a recent beneficial use
of the Arkansas
involves pumping its water into another basin. Or if we
want to use Virginia Simmons's term, it's yet another
chapter in the history of exploitation
- a sort of
colonial arrangement whereby the resources of the Arkansas
hinterland are used for the economic benefit of the South
Platte homeland.
In the current political climate, it might not be
prudent to go much further into revisionism
of that
sort. I just want to note that in the 200 years of American
habitation, the Arkansas has been put to many beneficial
uses: as a boundary, as a sewer, as an industrial reagent
in mills and smelters, for irrigation, for recreation, for
real-estate development.
And that as times have changed, we have adapted the definitions of beneficial use. The men who framed the constitution of Colorado in 1876 couldn't imagine any beneficial use - that is, any way to make money - by leaving water in the river. They believed it had to be diverted to fields and placers and turbines, and they were right, in the context of the times.
Today, we have figured out how to make money by leaving water in the river; people will spend good money to float on it, fish in it, or just watch it go by as we stroll along the trail in a river park. And our system is adjusting, with new concepts of beneficial use.
So in ways, I'm optimistic that the future of
beneficial use
will continue to adjust to modern
reality as the upper Arkansas continues its transformation
from an industrial river to a recreational river. As for
the lower river, I'm more of a pessimist.
The way things have worked in Colorado, the way to have water is to have money. And the Arkansas has produced some great fortunes, from the silver of Leadville to the cattle kingdoms of Prowers County. But that money never seemed to stay in the valley.
So perhaps that's the challenge we need to address if we
want more water in the river. Otherwise, the definitions of
beneficial use
probably won't be ones that benefit
us.
Thank you, and good afternoon.
< PREVIOUS ] [ 2004 Index ] [ Ed Quillen HOME ] [ SEARCH ] [ NEXT >