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Making Way for Midas Mulligan: A Paranoid Vision of our Mountain Future

Just because you’re paranoid
doesn’t mean they aren’t after you.

                                                                                                - Joseph Heller

            I’m looking at Colorado’s latest outbreak of contention between fishermen and whitewater boaters, and I’m thinking that life, like the planet life lives on, must have a lot of underlying geology: otherwise why these ridiculous and intractable surface perturbations? Earthquakes, volcanoes happen on the planet, and we can either believe it to be an Act of God, or we can listen to geologists who ask us to believe that we are riding huge stone islands afloat on a sea of molten magma, islands that are grinding and crunching against each other, resulting in all these disruptive surface perturbations.

            Is life like that too? We have all these perturbations on the surface of things, conflicts we don’t seem to be able to resolve in victory and defeat or compromise – why not? Why can’t Coloradans come to some kind of a once-and-for-all decision about whether there is or is not a “right to float” across private property on the state’s rivers? Is there something going on beneath the surface of our society, some tectonic activity at work, for which these surface disruptions are just symptomatic?

            That’s where the paranoia comes in – or what geologists would call “hypothesizing.” No one has ever seen a tectonic plate floating on a sea of magma; that whole theory began as a great leap of imagination by Alfred Wegener back in 1912, putting together a lot of scattered bits of evidence with a lot of supposition, and the Society of Respectable Geologists just laughed – paranoid fantasy. But as the years went by, that theory fit more of the accumulating evidence than any other theory did, and now it’s in geology texts as if it were stone true.

            So the story I am about to tell you involves a lot of that kind of hypothesizing, about the mountain culture I grew up in here in the Colorado Rockies, the culture that created the Mountain Gazette (or vice versa, or both) – a mountain culture that might now be on its way out. “Not with a bang but a whimper,” as old T.S. put it. A whimper or a discounted buyout or a series of neverending lawsuits or some other well-funded strategy in the kind of war of attrition the have-mores can always wage against the have-less.

            Paranoia, you’ll say. But just because you’re paranoid doesn’t mean they aren’t after you. Time to get under the surface of some of this nonsense.

*

                        Like many of our stories here in the mountains, this story has a river running through it, and the story starts on the river. The river is the Taylor River, one of two tributaries that form the Upper Gunnison River in southwestern Colorado, in the valley between the Elk Mountains on the north, the Collegiates and Continental Divide on the east, and the northern San Juan Mountains on the south.

            The Taylor River drops from an open park just below the Continental Divide through almost 30 miles of beautiful, moderately steep and relatively narrow canyons. This setting made the Taylor a renowned trout stream among the compleat anglers of the early 20^th century, and an equally renowned rafting and kayaking stream for the whitewater enthusiasts of the late 20^th century. (From the 1930s through the 1970s, a dam above the canyons turned the Taylor into little more than an irrigation canal, flowing on demand from farmers eighty miles downstream – but how the river was rescued from that fate is another story, told in MG May-June 2001.)

            Those familiar with water conflicts in the West will recognize an old, old river story in that sentence about fishing and floating. Fishermen and floaters have long been at odds; the last thing a serious fly fisherman working the eddies and pools below a rapid wants to see is a raftload of screaming tourists careening down into his or her aesthetics. Most rafters, especially the commercial boatmen, know this, and for the most part, do their best to give fishermen as much of the river as they can in passing, but still.

            The current issue on the Taylor, however, goes into a deeper issue in the ever-evolving American experience; it is a matter of rights, including the most sacred of rights: property rights.

            Most of the Taylor flows through public lands – Gunnison National Forest – but large stretches of it also flow through private property. A couple openings in the canyon were wide enough for modest cattle ranching homesteads, and there’s one long-established summer dude ranch; there are also a lot of old patented claims from the valley’s mining era that became sites for what were called “summer cabins” from the late 1940s through the 1960s, then “second homes” from the late 60s through the mid 1990s, and are now, increasingly, “home bases” for a certain kind of cosmopolitan 21^st-century person. All three types, humble old cabins to modern mansions, exist side-by-side on the banks of the Taylor, and the river runs through it all – and a lot of floaters also run through it all, some of them “privates” but most of them riding with two licensed commercial rafting companies.

            Those of you who have been following whitewater news already know how this episode of the story begins. A land developer from Dallas recently bought one of the ranch openings in the canyon; last year he announced his intention to develop it as an exclusive “recreational fishing subdivision.” He then gave the two commercial whitewater companies notice that they would no longer be allowed to float “his” stretch of the Taylor.

            Both companies have been operating on the river, floating through that private land, for a couple decades now – not without conflicts, mostly of a guerilla sort. One incident featured a property owner with a shotgun (he was arrested for that), and there is an infamous low bridge which requires everyone in the rafts to lay down flat in the boat when the water is up. But the Dallas developer has thrown down the gauntlet, and it’s open war again.

            It’s worth noting that fifteen other western states with roughly the same legal foundations have managed to resolve this conflict through legislation or other legal accommodations. But Colorado persists in making it a Big Deal on which, hangs – all or nothing, we are led to believe – the Future of Godgiven Property Rights on the one hand, and the Godgiven Right to Enjoy Our Waterways on the other.

            Colorado’s state constitution declares that all the waters of the state belong to all the people of the state; an individual’s water right is only a right to use the people’s water for some economically beneficial use. Private property of course has no such qualifications on it: you buy it, you can do whatever you want with it, including nothing, so long as what you do or don’t do doesn’t harm your neighbors unduly; and you can also keep everyone else off of your property if you wish, with the support of the state behind you.

            So it becomes problematic when people floating along on the people’s water in some kind of floating device float into someone’s private property. Colorado’s legislature and water courts – where all water rights are decreed and all water conflicts eventually come to roost – have gone far enough into that problem to say that, so long as everyone in the floating device stays on the water and doesn’t touch the stream banks or bottom, they have not committed a criminal trespass.

            But they would not go beyond that to assert a “right to float” that equals or trumps the private property right, and as a result, landowners can file civil suits against floaters for all kinds of damages against their domestic tranquility, property values, environmental disturbances, or whatever else their lawyers can drum up. And the Dallas developer subdividing on the Taylor has a price tag on his “Wilder on the Taylor” lots that indicates he is trying to sell the aesthetic experience of fishing as well as just dirt, and he sees the industrial floatilla of commercial and private floaters streaming down the Taylor as damaging to that.

            Property owners definitely hold the stronger hand in this issue; property rights are an established right, foundational to the American Way of Life, and a trump card in their hands is the issue of “taking”; even if a new “right to float” through private property were to be established, wouldn’t that constitute a “taking” for which the property owner would be entitled to some payment, to be established in civil court?

            So with or without the “right to float,” the path leads to civil court for the floaters, and when it comes to torts, all people are not created equal on the issue of affordability. The floating industry already has a horror story there, which occurred farther down in the Gunnison Basin, on the Lake Fork of the Gunnison in the early 2000s. A landowner on the Lake Fork had been leasing fishing access to the stretch of river on his property, and he took a Lake Fork rafting company to court for damages from diminishing that experience and also what he considered to be environmental damage to the aquatic ecosystem.

            But that case never went to trial – and here’s where my paranoia starts to kick in. Just the process of discoveries, interrogatories and depositions can put an awful lot of expensive time on a lawyer’s clock, and it takes pretty deep pockets just to defend oneself against a civil complaint, even if you might be in the right. In this case, the defendant was basically driven out of business by the cost of making his case. No right or wrong was determined; one party just couldn’t afford to carry on the battle.

            That’s the future the rafting companies on the Taylor River – and probably elsewhere in the state – feel like they could be looking at. A brave legislator, Kathleen Curry from the Upper Gunnison valley, has carried legislation to the state’s General Assembly that would prevent any landowner from shutting off access to any commercial rafting company that has been historically passing over that landowner’s property; it would also grant floaters the privilege of disembarking and walking around obstructions in the river on the private property stretches. The outcome of that bill is unknown at this point (although it had passed the Assembly House when I was writing this).

            But even if it passes, it also avoids the “right to float” question for floaters in general, and says nothing about the “taking” issue. It would undoubtedly be challenged in a civil suit – quite likely on the Taylor River. And the Dallas developer might not have to stand alone against the rafting companies there; some miles upstream from his private stretch of the river is a five-mile stretch of the Taylor that has been fenced off from fishermen and boaters for decades now, a stretch of prime trout stream (although a little small for rafting) owned by another group of wealthy second-homers.

            How wealthy these folks are was demonstrated back in the late 1980s and 1990s, when they endeared themselves to Upper Gunnison people by putting a couple million dollars into the “defense fund” to fight a proposed transbasin diversion from high in the Taylor to the Front Range metropolis. But there is no reason to believe that this was an outburst of altruistic community love; they had their own private Colorado to protect. And that is the kind of money that is available to fight the good fight for the sanctity of private property against the sansculottes with their democratic notions about freedom to float.

            To this point, I’ve probably said nothing you haven’t heard before if you’ve been following the “right to float” issue. This is all up on the surface, like the river that runs through it. And that might be where it would have stayed for me, had not an old lifelong Upper Gunnison rancher said something about it at a public meeting last month.

            We had just heard the lawyer for the Dallas developer on the Taylor explain with convincing rationality why there was no “right to float,” and representatives from the two rafting companies explain with convincing rationality why there was. Then the rancher said something that, for me, took the whole question right off the surface and drilled down to a “tectonic” level. 

            “Thirty years ago,” he said, “recreation wasn’t even part of the water discussion, but since then we ranchers have gotten beat up over recreational uses of the water. Now, the elites are doing the same thing to you guys in recreation.”

            That alone might not have been enough to yank me down to the tectonic/paranoid level, but it immediately fired a synaptic jump to a talk I heard two years ago up in Mt. Crested Butte. (This is the way paranoia works – everything fits in.)

            The speaker was a guy named Jonathan Schechter, from the Charture Institute in Jackson Hole, a think tank for resort communities. Schechter’s talk was titled “Sustaining the Golden Goose: The Dynamics of Growth in Resort Communities, & What They Can Do About It,” and I would recommend it for anyone paranoid enough to be worrying about what is going to be happening in the Rocky Mountain resort communities in the 21^st century. You can find his slide show from the talk at http://www.charture.org; click on “Our Presentations” in the left-side menu; then go to “2008,” and open the “2 Dec 08 - Mt. Crested Butte, CO” pdf. Fortunately for those who did not hear him in person, it is the kind of power-point presentation that can be “read” pretty well on the screen.

            I am not going to go into a detailed rundown of what Schechter says in his presentation, nor am I going to use any of his abundant statistics and graphs supporting his analysis; I am (like a true paranoiac) just going to present his main conclusion, which basically reinforces Bill Trampe’s observation with a convincing statistics and transparent logical analysis:  according to Schechter, an “investment culture” of wealthy retirees, lone eagle investors, and businessmen who don’t have to live where their workers work is now supplanting the recreation-oriented economic culture of the resort communities.

            Still down on the “tectonic” level, he sees Rocky Mountain human culture evolving (to this point) through four cultural “generations”:

·    First generation – Hunter-gatherer (native Americans, beaver-pelt trappers, gold and silver high-graders);

·    Second generation – Land use (farming, forestry, other agriculture; mining, oil & gas, other extractives);

·    Third generation – Value added (manufacturing where transportation allows, tourism where scenery allows);

·    Fourth generation – Intellectual activity (professional services, investments, all with their “activity” elsewhere).

            So the Upper Gunnison rancher had spoken anecdotally about what Schechter demonstrates statistically: a transition from community culture driven mostly by second-generation land use (ranching and mining here in the Upper Gunnison) to third-generation tourism that he experienced; and now a transition from third-generation tourism to fourth-generation “intellectual activity.” Or as the rancher put it: the “elites” are coming.

            Is this happening? It certainly looks like it in the Upper Gunnison. Schechter presented graphs showing how population, per capita income, housing prices and other indicators he uses have kept rising in the valley, even though the recreation industries have been relatively flat (even declining in the case of skiing); how the number of big megamanor “second homes” being built have declined – while the number of big megamanor first homes being built has increased.

            The statistical information is reinforced by anecdotal information – like a 2009 New York Times article (Feb. 6) about “global” hedge-funders living in and working from Crested Butte. It should be noted that an increase in per capita income – total income divided by total population – has nothing to do with an increase in local prosperity; you only need a handful of millionaires moving into your valley of 15,000 people to drive up the per capita income significantly.

            The recreation/tourism economy, according to Schechter, is being replaced by what he calls the “lifestyle economy.” The mountain valleys have what everyone wants:  a) a healthy environment and wildlife (puts a new meaning on “bear market”), b) abundant recreational opportunities, c) simpler more intimate communities (simpler?), and d) personal safety. The resort-based recreation economy grew up in the second half of the 20^th century to provide the opportunity of enjoying those amenities to the new middle class that kept expanding until the mid-1980s. Some of us middle classers (probably a lot of the Mountain Gazette readership) moved here to work and live in that quasi-industrial economy of recreational experiences, and made it our culture.

            Now, however – more paranoia. Has anyone noticed that the American middle class – that definitive evidence that there was an American dream and it worked – is disappearing? Again, there is no shortage of statistical evidence that this is so – stagnation or decrease in real wages since the reign of Saint Ronald, the disappearance of most of the manufacturing sector that gave families their leg up into relative prosperity and sent their kids to college, the increasing unaffordability of home ownership, et cetera, et cetera.

            The nation is still in massive denial about this (except for us enlightened paranoiacs); we want to think that these are only temporary setbacks, transitions to something that will be (as it always is in America) better for more of us. Meanwhile, we try to not see how quickly we are slipping back into a neo-feudal society dominated and driven by a small but very rich and powerful aristocracy. And if things continue to go as they are now, many, maybe most, of those aristocrats will be living in gated estates in places like the Upper Gunnison, fishing in their own investor-owned rivers, with no fear of a raftful of couthless exuberant middle-classers floating through their own private Colorados.

            Schechter observes that the economic and political leadership in our mountain communities unfortunately “are using third generation tools (planning, revenue generation, governance, etc.) and a 3rd generation mindset to deal with fourth generation challenges.” That is, we are still trying to believe that we are resort communities for vacationing middle-class visitors, rather than facing the reality that we are becoming “lifestyle communities” for the wealthy.

            Well, why not? Our local economies are still made up of businesses – motels and lodges, affordable restaurants, retailers to tourists, et cetera – that depend on strong seasonal flows of visitors. Only the construction industry is increasingly geared toward service to the “lifestyle community,” building the castles that suit the aristocratic sensibility. But even most of the people in that industry are aware that they are constructing a world in which they will not be welcome. Why shouldn’t the economic and political leadership in the valleys try to fend off or at least minimize this transition that basically undermines most of our local economy? Why shouldn’t we ask our legislators to try to protect the businesses that have been supporting hundreds of seasonal workers with something approaching a middle-class living?

            On a related note – related, at least, in the paranoid mind where everything is related – why should we here in the Upper Gunnison docilely accept the judgment of the U. S. Forest Service that there is insufficient community support for a ski area expansion in Crested Butte, just because a single group made up primarily of retirees, hedge-funders and trust-funders says (over and over and over, loudly) that they don’t want it? Is the Forest Service starting to shift back toward the Pinchotian sensibility, that good conservation means protecting the forests from the appetency of the hoi polloi who live near the forests? Or – the same thing basically – are they trying to cater to the emerging aristocracy that likes things “at home” kind of laid-back and not disruptively busy with “economic activity”? The rich have always wanted one thing only in their retreats – the right kind of people. Let the growth happen out there where our money comes from, to keep that money coming, but not here in our private Colorado....

            Okay – the problem with paranoia is that it takes you off the deep end, drives you to polar extremes. In my saner moments I don’t believe in unchecked and undirected economic growth; nor do I believe that a ski resort expansion will necessarily revive Crested Butte’s ski-based economy; nor do I believe that the existing tourism/recreation economy in this marginally remote valley can revive or even survive without a resurrection of the American middle class that enabled it through the last half of the 20^th century.

            And I’m afraid I do believe that the American middle class itself is so degenerated and alienated from itself by corrupt money-biased media, and so dulled by cultural and political irresponsibility, and so dispirited by thirty years of steady hammering by the emergent plutocracy, that any hope of such a resurrection is very slim indeed.... After its setback in the 1920s and 30s, the plutocracy has come back stronger than ever.

*

            Meanwhile, back at the river. What should happen there – what could happen there – to forefend the imminent train wreck? (In which I would predict another victory for the rich simply because they can afford the war of attrition that will result once it gets into the courts.)

            Reasonably intelligent compromises could resolve it. The rafters could forego the headbutt over rights, which, up against the sacred property right, they will probably lose, and accept the concept of a state-regulated licensing that includes limits on access to river stretches crossing private property – probably time limits (no floatillas during the earlier and later hours when the fishing is best) and capacity limits (half an hour between launches that cross private property). And the property owners could concede that the purchase of a piece of property does not include a legal right to the entire viewshed, even though the price might suggest that it should. Everybody could just fucking relax a little and enjoy Colorado.

            But that is an unlikely resolution, because of the slow grind of cultural tectonics moving under us all today – moving us back to the feudal society of the plutocracy, rule by the rich, in which there is no commonwealth, just their wealth and everyone else’s cheap labor. What’s happening on the Taylor River is just the end result, the consequence of that tectonic grind, and probably cannot be changed at all from the vicinity of the Taylor River.

            I find myself thinking these days about Ayn Rand’s epic rant against the America of the American Dream, Atlas Shrugged (which is, by the way, enjoying a new surge in popularity). That book suggests – nay, preaches, loudly – that anyone who claims to support a society that tries to establish equity of opportunity and social justice is a fleecing hypocrite, using the people to feather their own nests and reputations; the only movers and shakers of society are second- and third-generation extractors, manufacturers and transporters who live by the credo, “I will never live for the sake of another man, nor ask another man to live for mine.” And while one hates to say it, to look at our seats of governance today with all their Wesley Mouchs and Ellsworth M. Tooheys, her view of America might be more accurate today than it was in 1957 – although it is harder to see the steely-jawed capitalists she worshipped.

            You see – penultimate paranoia now – the thousand-page book tells a tale of how those supposed movers and shakers withdrew from a society composed of them and the millions freeloading off of them, and retreated to – well, to a secret valley in the mountains of Colorado, owned by a financier named Midas Mulligan. There, with the help of some energy sources and machines that continue to be inexplicable in terms of the laws of physics, they created a cozy utopia, while the world absent their disciplined selfishness went to hell. And an unnamed river ran through their valley, whose name might have been the Taylor.

            Ah, paranoia. But just because you’re paranoid doesn’t mean they aren’t after you.

Colorado is a great place,” Rearden said. “It’s going to be the greatest in the country.”

                                                                                                            - A rich guy in “Atlas Shrugged”

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