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Wild and scenic status has worked in kayakers' favor before. In Yosemite, the Merced River's designation compelled park officials to ease restrictions on boating there earlier this year. And in 2006, American Whitewater sued the U.S. Forest Service to reverse its ban on kayaking on the Chattooga River, which flows through Georgia and South Carolina. The ban was enacted in 1976 to protect trout habitat, but American Whitewater argued that it lacked justification and violated the Wild and Scenic Rivers Act. In 2007, a U.S. District Court agreed, opening the Chattooga to its first legal descent in 30 years. The decision has since been appealed, but Colburn believes it provides a legal precedent that ought to compel officials in Yellowstone to reconsider kayaking on the Snake and Lewis rivers.
"(Kayaking) provides people a really beautiful, powerful way of connecting with rivers and with nature and with the landscape," he says. "The experiences people would have are exactly the kinds of experiences that the National Park Service and the Wild and Scenic Rivers Act were set up to promote."
But the agency's first draft of a new river management plan for the Snake and Lewis, released in May, includes no plans to study the impact of opening new stretches of water to paddling. The possibility of kayaking, pack-rafting, canoeing or otherwise floating the off-limit portions of the rivers is listed under the heading "Considered but dismissed from detailed evaluation."
Unfazed, Colburn has solicited comments from American Whitewater's 5,500 members and submitted a 23-page response that he hopes will convince the agency to do a substantive evaluation. The next draft of the management plan could surface by the end of the year. But after working unsuccessfully for three years to get kayaking considered in the current draft, few boaters are holding their breath.
In the meantime, kayakers who want to tackle the Black Canyon will have to face more than just steep boulder gardens. Kayaking on closed waters in Yellowstone National Park remains a class B misdemeanor carrying a maximum penalty of six months in jail, a $5,000 fine and five years of unsupervised parole—and that's not all.
"We usually request a five-year ban (from Yellowstone) for the individual," says Deputy Ranger Nick Herring. "The ban is probably more important than the fine."
For Rob Lesser, who received the relative slap on the wrist of a $25 fine for his 1986 escapade, today's punishment has reached the point of absurdity. A kayak is "a hollowed log," he says. "That's all it is. It's so simple. (This is) about access to wild places."
This story originally appeared in the Nov. 11 issue of High Country News (hcn.org) and is reprinted with permission.This story was updated Dec. 19 to correct Mark Pearson's title and the number of members at the American Whitewater organization.