Capitol Reef Administrative History

In the Waterpocket Fold country, water is never taken for granted. With only three perennial streams cutting through this rugged uplift, there are relatively few precious acres of arable land that can support long-term occupancy. It is, then, not surprising that the primary need of all residents, from the earliest ranchers and settlers to modern National Park Service managers, has been sustaining water rights and quality. In Fruita and elsewhere in the Waterpocket Fold country, water was used according to the Western tradition of prior appropriation. This tradition gives preference to those who make the first claims and who use their water for beneficial purposes, such as growing crops. For the first settlers, cooperative irrigation was made possible by common culture and goals. When the National Park Service arrived in the area, its representatives had to learn to strike a delicate balance between neighborly cooperation and asserting the agency's own claims to acquired priority water rights. For the most part, the National Park Service has been successful in maintaining such a balance.

The rights to use the lower Fremont River were first decreed in 1935, just prior to the creation of the national monument. Those 1935-decreed water rights, in keeping with Utah tradition, established the amount of water to be used by Fruita residents and later by the National Park Service. The National Park Service acquired its first small percentage of Fruita's water when it purchased the Alma Chesnut property in 1943. From that time until the acquisition of other Fruita inholdings in the 1960s and 1970s, only a few notable water disputes occurred.

Once the National Park Service controlled most of Fruita's water, the next step was to assert priority rights against a variety of threats. A proposed dam east of the monument, upstream attempts to divert Sulphur Creek water, and ongoing water rights adjudication kept managers busy throughout the 1960s. Also during this period, a water treatment plant began providing Fruita residents with its first reliable culinary water supply.

The 1970s brought downstream attempts to impound the Fremont River for a proposed power plant. The decade also saw substantial improvements to Fruita's irrigation system and, once again, problems with unauthorized uses of Sulphur Creek.

In the 1980s, an adjudication of water rights was initiated by the State of Utah (Civil No. 435). This adjudication, which is ongoing, includes that portion of Capitol Reef National Park lying within the Fremont River corridor. The decade ended with a new dam proposal, this project to be located upstream near Torrey. The 1990s began with efforts to improve the park's culinary water supply by digging a well upstream of the water treatment plant, and with renewed threats to the quality and integrity of the Fremont River through the park.

Meanwhile, research continues on available water rights and quality for the rest of Capitol Reef National Park, and on documentation of tinajas in the southern Waterpocket Fold.

Doctrine of Prior Use Comes to Utah

During the 19th century, the industrial revolution in the East and the mining and irrigation frontiers throughout the West combined to change American water law from traditional English riparian rights to one of prior appropriation. Under the old riparian system, those who used a river's water had to own property next to the river and return whatever water was used. Water diversions for a textile mill, mining sluice box, or an irrigated field were not permissible under traditional riparian law. By the mid-1800s, however, there were growing needs in the U.S. to divert water in manners and for purposes that would reduce the river's flow. Lack of regulation raised the possibility that any upstream user could dam or divert an entire river, thereby depriving all downstream claimants of water. [1]

In order to establish more practical rules of water use, a series of state laws and court cases institutionalized the Doctrine of Prior Appropriation throughout the West. According to this new doctrine, the right to use a river's water was based on the earliest claims, thus the saying "first in time, first in right." It also stipulated that the water taken had to be of beneficial use. Since it was not beneficial for one claimant to take all the water when he needed only a small amount, a river's water was usually apportioned according to minimum use requirements. Western states' water laws were therefore a combination of priority claims and decreed rights based on need. [2]

During the Mormon settlement of Utah, the Doctrine of Prior Appropriation was combined with cooperative irrigation projects. In the first years of the Salt Lake settlement, ditches and canals were dug to divert water for culinary and irrigation purposes. Economic historian Lenard Arrington explains:

When a group of families found themselves in need of water (or additional water) to irrigate their farms and gardens, the bishop arranged for a survey and organized the men into a construction crew. Each man was required to furnish labor in proportion to the amount of land he had to water. Upon completion of the project the water would be distributed by a ward watermaster in proportion to his labor. The labor necessary to keep the canal in good repair was handled in the same way. [3]

When Utah became a territory and, in 1894, a state, this system of water rights and usage was confirmed by the state legislature and administered by the county courts. Based on their traditional importance, the cooperative water companies that largely determine water usage throughout the state continue to be recognized by Utah. [4]

By the time the first settlers of the Waterpocket Fold country arrived, however, the grasp of church authority had been loosened by time and distance. This new wave of settlers, while still staunchly Mormon, sometimes had to cooperatively build, use, and repair irrigation ditches without the guidance of a ward bishop. Even when a bishop was in control, he usually worked in one isolated settlement. Long distances between these settlements meant that a river such as the Fremont could easily be over-appropriated. Thus, sooner or later, the county court would have to adjudicate priority and minimum use claims. Before this could be done, however, each of the river's users had to be able to verify their oldest and greatest use. [5]

Early Water Users of the Waterpocket Fold

The first permanent settlement in what is now Capitol Reef National Park was built on Pleasant Creek. In April 1883, Ephraim Hanks and his family settled on land now occupied by the remnants of the Sleeping Rainbow Ranch, and soon began to divert water for crops and an orchard. [6]

Fruita was the next area in the park to use irrigation. According to final homestead affidavits, Nels Johnson was the first to build a house, in 1886, near the junction of the Fremont River and Sulphur Creek. He moved to his property the next year and in 1888 began cultivating about 17 of his 160 acres, seven of which were in orchards. [7] Leo R. Holt settled in the Fruita area around 1892-93. The other two original Fruita homesteaders, Elijah Cutler Behunin and his son, Hyrum, arrived in 1893 and 1895, respectively. [8] By the time the first official survey mapped the Fruita area in 1895, there was one noticeable canal, which evidently served the Sorensen and Johnson farms on the south side of the Fremont River and one large field or orchard straddling Sulphur Creek. [9]

By the turn of the century there was a well-established system of ditches and canals throughout Fruita, no doubt built and maintained by all who used them. The draft 1993 Fruita Cultural Landscape Report states:

In order to supply the necessary flow, the main intake was located along the Fremont River, approximately two miles from its confluence with Sulphur Creek. From this point, open ditches and flumes were constructed to carry water along the east face of Johnson Mesa, to the estimated 80 acres of irrigated lands. Gates controlled flow into the fields. The fields themselves were watered by furrow irrigation. In this system, water was carried from the main ditch to a series of laterals along the edges of the fields, and finally into furrows which channeled water through the fields in shallow ditches, spaced between rows of fruit trees, virtually flooding the land. [10]

Throughout the early years when land was sold in Fruita or at Pleasant Creek, the customary, though unspecified, share of water for agricultural or culinary use was attached to the deed. The share was transferred with the deed under the mutual consent of the other users. This was so because state law was derived from the traditional Mormon position that land and water rights were inseparable, and also because without the water to make it arable, the land was only pretty scenery. [11] Yet, water allocation and ditch repair responsibilities must have been confusing at times. After all, there was a fairly rapid turnover of property owners, a large percentage of renters or tenants, and the fact that not everyone lived full-time in Fruita. [12]

1935 Bates Decree and 1937 Tanner Report

From the turn of the century to the early 1930s, small, cooperative irrigation systems like Fruita's could be found all along the Fremont River. Yet, while there was apparent agreement within each settlement as to who deserved water, there was no such understanding among communities. This problem became particularly acute during the severe droughts of the 1930s, when the Fremont River was often reduced to a muddy trickle before reaching the lowest downstream users. In a 1935 effort to gain a guaranteed share of the lower Fremont River, the Hanksville Irrigation Company filed suit in Wayne County against upriver users. [13]

On July 15, 1935, Judge Nephi J. Bates of Utah's Sixth District Court for Wayne County decreed the water rights to the lower Fremont River. Seven residents of Fruita, Clarence Mulford, Dewey Gifford, William Chesnut, Alma Chesnut, Merin Smith, M. V. (Tine) Oyler and Dan Adams, were granted eight cubic feet per second (c.f.s.) of water from the Fremont River and its tributaries. The Fruita water was classified by Judge Bates as part of the total 56.09 c.f.s. of primary rights. This meant that Fruita's irrigation water was guaranteed due to priority claims and demonstrated beneficial use. Also given priority rights were the Hanksville Canal Company and the Caineville Irrigation Company. On the other hand, the Torrey Irrigation Company was judged to have only a secondary right to its 35 c.f.s. of irrigation water. This meant that the Torrey users could divert water only after all other downstream users, including Fruita, had taken their shares. [14]

Besides the specific water allocations, Bates also decreed that each party named in the case was to construct state engineer-approved weirs to keep accurate accounting. He wrote:

[All parties] thereafter shall maintain and keep all dams, headgates, flumes, canals, and other means by which said waters are diverted, conveyed, or used, together with said weirs, in a good state of repair, to the end that no unnecessary leakage shall be occur, and that the waters shall be economically applied to the user for which they are awarded. [15]

In other words, irrigation water was to be used for irrigation, and the diversion canals and ditches were to be maintained to prevent undue waste or risk the possible forfeiture of one's water rights. Judge Bates also stipulated that a water commissioner would be hired to monitor each weir and the use by each customer on the lower Fremont River. [16] Over the next decade, the various property owners in Fruita finished the legal deeding of water shares among themselves and thus finalized, for the time being, who was entitled to how much water. [17]

The Bates Decree was the foundation on which all later water rights disputes and allocations of decreed water were based. It should be pointed out, however, that this case dealt only with the Fremont River between Torrey and Hanksville. The use of Sulphur, Pleasant, Sand, and Deep Creeks, which flow into the Fremont within or east of the Waterpocket Fold, was not specifically addressed in this court case. [18]

Freeman Tanner was hired as the second part-time water commissioner in June 1937. It is in his report covering the period of June 10 to July 10, 1937, that the specific breakdown of Fruita's 8 c.f.s. water rights is found. Based on a percentage of irrigable acres, Clarence Mulford was decreed 1.77 cubic feet per second from the lower Fremont River to water; Dewey Gifford, 1.10; William Chesnut, 1.38; Alma Chesnut, .66; Merin Smith, 1.28; Tine Oyler, 1.37; and Arvil Mott, .44 c.f.s. While the total acreage listed for all of Fruita was 181 acres, the precise amount of irrigated acreage was not listed. [19]

The most frustrating part of the job for Tanner was that few adequate measuring weirs could be found. According to the water commissioner, frequent floods had made it uneconomical to invest in expensive weirs, since whatever was built was usually washed away in the next flood. Used instead were crude diversion dams made of rock and brush, which allowed the water to wash under or through the weirs and which made accurate readings impossible. Tanner, however, did note that new weirs were distributed and should be in place by 1938. [20]

But all of the lower Fremont River's assigned users had a more immediate problem. While the amount of water allocated to the various primary and secondary users was usually adequate but for a few short periods in June and July, there was not enough water for Torrey's secondary rights or even for other parties downstream. A table in the Tanner Report shows water flow in the Fremont River through Fruita was only 19.07 c.f.s. on June 24, but through the rest of the summer it was recorded at 31.8 to 33.6 c.f.s. This is far less than the 59.09 c.f.s. decreed by Judge Bates. [21]

Thus, at the same time that Capitol Reef National Monument was being created by President Franklin Roosevelt's proclamation on August 2, 1937, the water rights to the future headquarters area were finally apportioned and controlled. However, the problem of too many users and unreliable monitoring continued.

The Search for Springs and Seeps: 1938-1941

Because the private inholders at Fruita controlled all water rights to the Fremont River and Sulphur Creek, the first efforts by the National Park Service were aimed toward developing other water sources, such as springs or a well. This search for potable water became particularly important when a Civilian Conservation Corps side camp was established below Chimney Rock just west of Fruita in 1938.

In June 1938, National Park Service Engineer Sam D. Hendricks visited Capitol Reef at the request of Zion National Park Superintendent Preston P. Patraw, to search for a "palatable" water supply for domestic use. Of the two springs Hendricks found, the one nearest the planned ranger station (located on a ledge above Sulphur Creek) was nothing more than a slow seep of questionable quality. The Hickman Bridge spring (also called Whiskey and Cove Spring), on the other hand, was promising. According to Hendricks, if a better collection system was used, the sweet-tasting water could easily be piped downhill to Fruita. While this supply was small, it was at least a start. [22]

Later that same year, Leon S. Stanley, the foreman for the CCC crew, found a fairly reliable spring "about 700 feet north of the ranger station and about 25 feet lower in elevation." Stanley urged that this spring be immediately "developed and filed on." [23] However, the National Park Service took no action on either Hendricks's or Stanley's finds. Instead, the only water source developed during the CCC period at Capitol Reef were some small springs "one quarter mile north west of the camp." Water was collected and piped to a 2,300-gallon iron storage tank for use by the camp until it was abandoned in 1942. [24]

Alma Chesnut Water Rights Acquired: 1941-1943

Since the details of the first purchase of Fruita land by the National Park Service have been discussed elsewhere in this administrative history (Chapter 5), only the information pertinent to water rights will be addressed here.

As Zion National Park Superintendent Paul R. Franke stated, the purchase of Alma Chesnut property would "provide the only water owned by the National Park Service in this national monument and [would] meet water requirements for a modest development of this area for both culinary and irrigation uses." [25]

When negotiations between the Chesnuts and the National Park Service began in April 1941, Chesnut claimed to have rights to .79 c.f.s. of Fremont River water instead of the .66 granted in the 1935 Bates Decree. This was based on Chesnut's belief that he acquired an additional .13 c.f.s. when he purchased a small tract of land from Tine Oyler after the decree was issued. Another uncertain issue was how many of his eight acres of orchard land were in the southeast quarter of Section 14, which had washed away in the flood of 1938. If this land was lost because the river changed course or because it could no longer be irrigated, the amount of water granted to Chesnut -- or its potential new owner, the National Park Service -- could be reduced. [26]

According to Chesnut's tax records compiled by the National Park Service, the land was irrigated by "a ditch about a mile long, unlined, with a capacity in the upper portion of 3 second feet." The records continued, "It includes an 8" pipe flume across Sulphur Creek which cost about $200 of which Mr. Chesnut paid $96. Four individuals have interests in the ditch above the flume, and three below. Due to duplication in this count, there are actually five individuals with interest in the ditch." [27]

This ditch brought irrigation water to 225 peach trees, 15 apple trees, several apricot trees, and some grapes and berries. Unfortunately, the date of the tax record providing this information is unknown. [28]

Throughout the rest of 1941 and most of 1942, final sale of the Chesnut property was delayed by National Park Service efforts to sort out the tangle of property descriptions pertaining to Fruita. In October 1942, the lead investigator, Hydraulic Engineer A. van V. Dunn, submitted a final "Analytical History of Land Title" for the entire section in which the Alma Chesnut land was located. According to Dunn, Chesnut had a minimum of 14.87 acres under irrigation as of the 1935 Bates Decree, or .13-acre less than references in the decree. Yet, Dunn was positive that further research would only increase the acreage and that an estimated three acres lost to the shifting river channel should also be included. Thus, Dunn observed, "The declaration of taking of .66 second feet seems to be the minimum to which Alma Chesnut is entitled. The burden of proof seems to fall on his neighbors if they care to contest it." [29]

The neighbors did not contest the .66 c.f.s., based on the quit claim deeds filed with the Wayne County Recorder during September 1942. [30] In the final Judgment on Declaration of Taking dated July 23, 1942, 66 acres and .66 primary water and all ditch rights were acquired from Alma Chesnut by the National Park Service for $1,800. [31]

The Chesnut land and water rights were officially accepted by the U.S. government on March 2, 1944. The problem now was finding a way of preserving these water rights until development money became available. That job fell to Capitol Reef National Monument's new volunteer custodian, Charles Kelly.

The Kelly Years: 1933-1959

One of the main reasons Charles Kelly was encouraged to move into the old Chesnut house in May 1943 was to see that the the soon-to-be-acquired water rights would be maintained. This was also the reason why, a year later, he was appointed monument custodian. [32] As an incentive to continue past irrigation practices (and thereby maintain water rights to the property), Kelly was allowed to keep any income he could generate by raising and selling fruit on the Chesnut place. The first year alone, he brought in a hefty $500 in fruit sales. So it seemed that maintaining the ditches and irrigating the orchard was not only in the interest of the National Park Service, but that gave Kelly some personal incentive as well. [33]

At first, Kelly seemed willing to try to improve the irrigation system. In early 1944, Kelly asked his superiors at Zion National Park for some salvage wood to rebuild an old flume, attached to a cliff directly above the river, leading to the eastern parcel of land. The flume had been destroyed the previous year by a flood that washed away a considerable portion of the Chesnut orchard, and left the remaining trees without irrigation water. [34] In 1946, Kelly made a second request to start work on the new flume and other ditch work, which would be funded as a rehabilitation project. There is no evidence however, that his project was ever initiated. The only visible remains of this flume in the 1990s are the steel pipes jutting out above the river from a sandstone cliff opposite Krueger Orchard. [35]

In 1949, Hydraulic Engineer A. van V. Dunn requested an update on Capitol Reef's water situation. In his reply, Charles Kelly made it clear that there was little monitoring of or control over Fruita's irrigation ditches. Nevertheless, he reported, there were no conflicts with other owners simply because everyone got as much water as he needed. Kelly wrote that "the water used has never been measured to any of the ranches here." Kelly had by this time given up on building a new flume and irrigating the eastern tract of land, which was now "badly washed by floods and...heavily overgrown with brush in most places." Nevertheless, the custodian noted that he was diligently using as much irrigation water as possible on the residence property "at all times, and the runoff waters [had made] a sort of small jungle which provides cover for large numbers of birds." [36]

In forwarding this report to Dunn, Zion Superintendent Charles J. Smith opposed funding to rebuild the washed out flume because the park service had "nothing in particular there to irrigate." Instead, Smith wanted to investigate the possibility of teaming with new Fruita property owners Dean Brimhall and Owen Davis to bring water to the ranger station. Since its construction by the CCC, this ranger station, located on a small bluff west of Fruita, had been without water. Smith believed that, since Brimhall and Davis had spent a great deal of money and time improving the main ditch along Johnson Mesa, it would now be beneficial to "put [park service] water in their ditch and pump it out onto the ground to make proper use of it."

He argued, "By sharing in the cost of maintenance of the ditch, [the park service] could get water on the area." The park service, Kelly wrote, needed a campground or a picnic area in that vicinity, and a locale near the ranger cabin would be suitable. [37]

Before this plan could be furthered, however, the harmonious cooperation described by Kelly only a year before had suddenly turned acrimonious. A rapid turnover in ownership and tenants in Fruita had resulted in such a lack of cooperation that needed ditch repairs were now totally ignored. According to Kelly, those using the ditches believed that "since the government has an interest in the water, the government [should] have to maintain the ditch and furnish water free to all other users." [38]

Kelly went on to vent his frustrations at the willingness of people to wait for the National Park Service to take care of the ditches:

As a result the government property has not received its share of water for at least two years. This year it has not received sufficient [water] to keep the trees alive, and many are dying. When I repair the ditch and turn in water, all users above take it out before it reaches me. There is not and never has been any regulation whatever, and each user helps himself whenever there is water in the ditch, regardless of others; with the natural result that all the users hate each other for 'stealing water.' This condition is completely intolerable and must be remedied or the government water rights will be endangered. [39]

Capitol Reef's acting superintendent attempted to solve this problem by calling a meeting of all 11 Fruita water users and having them appoint a water master from among themselves to "apportion water turns." According to Kelly, who had acted only as a fellow user and not as a National Park Service employee, few of those present were willing to do anything. He concluded, "As expected, the meeting ended in a brawl." Kelly therefore asked his superiors to assist him in resolving this impasse. [40]

The infighting between Fruita neighbors as reported by Kelly negates the assumption that everyone was working in harmony toward cooperative irrigation. These problems may have been exaggerated by Kelly's frustration over his neighbors' failure to do as he asked. On the other hand, the rapid turnover in Fruita occupants at the end of World War II most likely played a key role in failing to get Kelly's ditch repaired. The traditional residents of Fruita were being replaced by new and often absentee owners, as well as changing tenants, who were not as dedicated to cooperative irrigation as earlier residents.

Kelly's letter sent the National Park Service wheels in motion. A short investigation concluded that the best solution was to follow Superintendent Smith's earlier recommendation and continue efforts to re-channel National Park Service water rights toward future development sites near the dry ranger station area. Redirecting the National Park Service water would achieve three results: water would be piped to where it would one day be needed the most; the animosities between Kelly and his neighbors would be avoided; and there would be added insurance that no portion of the .66 c.f.s. water rights acquired by the National Park Service could be lost. [41]

The need to protect Capitol Reef National Monument's existing water rights was a primary focus in 1950. In the mid-1940s, Kelly had repeatedly been denied funding to rebuild a washed out flume that had once irrigated fruit trees on the former Chesnut parcels 3 and 4. [42] The amount of Chesnut acreage lost in this and subsequent floods was later calculated to be as much as 11.23 acres, which would leave only 3.77 acres to irrigate in the vicinity of the superintendent's house. Since adjudicated water rights that are not continuously used may be subject to forfeiture, and since Kelly couldn't use the park's full portion on less than four acres, the National Park Service was faced with the possibility of losing a portion of its water rights. [43]

The immediate solution was to file for a water rights extension for the maximum five years while National Park Service officials decided how to proceed. This was done in either late 1950 or early 1951. There is no record that neighboring water users contested this step. [44]

Over the next few years, various proposals were submitted. These included building an elaborate campground on public land next to the ranger station; purchasing other land in Fruita (most likely, some of Dean Brimhall's land opposite the ranger station); and pumping the required amount water out of the river onto barren ground. There was also the question of whether an existing irrigation ditch to the Brimhall property could be used, or whether an entire new ditch would have to be constructed above all others. Superintendent Kelly advocated a simpler approach: dig a well next to the ranger station and get all the needed culinary and irrigation water without having to tap into the Fremont River. [45]

Since the well seemed the cheapest approach, this became the selected option. Throughout the mid and late 1950s, the Mission 66 planning documents frequently refer to drilling a "deep artesian well" near the ranger station to supply all culinary needs. It was anticipated that the irrigation water would continue to come from the Fremont River. [46] However, the well was never constructed. Another private well was proposed by new Fruita land owner Max Lewis, who had purchased the Owen Davis property in 1956 and planned to build a large house on top of Johnson Mesa. Lewis, and his plans, died only a few months later. [47]

There is no conclusive record that anything had changed regarding Capitol Reef's water rights by the end of the 1950s. After 1952, there is no known documentation referring to the possibility that a portion of the National Park Service share of Fruita's water could be lost. Likewise, there is no known correspondence referring to well tests or water diversions near the ranger station or Sulphur Creek campground. Finally, if a compromise solution was ever worked out between Kelly and his Fruita neighbors, documentation of such an agreement has not bee located.

If more detailed information is needed, the records may be found either in the Utah State Engineer's files or National Park Service files in the National Archives - Rocky Mountain Region, located in Denver, Colorado.

Culinary Water Problems: 1950-1960

Because the Fremont River water was deemed unsafe for drinking, and since a well was never drilled, the search for an adequate culinary water supply continued throughout the 1950s. For most of the first 20 years of the monument's existence, all culinary water came directly from the river. It was carried by irrigation ditches and then diverted into cisterns, where the silt would settle, leaving clear water for use. Water was then either pumped or gravity fed into the individual houses. By the early 1950s, the Capitol Reef Lodge was chlorinating all its water; lodge staff later took the additional step of boiling all drinking water. These precautions were probably were taken because the lodge served food to the public.

In 1951, public health inspectors recommended that the National Park Service dig a well for its culinary water. Until this was done, the service recommended that all drinking water be hauled by truck from a safe water source. At the very least, the public health inspector warned, visitors should be advised to boil all water taken from the river or cisterns. [48]

Consequently, a larger, concrete cistern was installed behind the superintendent's house, and plans were made to haul water from Bicknell, 23 miles west of the park. By 1955, Kelly had given up on the Bicknell trips because they were "unsatisfactory and impractical." He argued that he knew of no one who had become sick from drinking river water. The time and effort necessary to make a 46-mile round-trip in an old tanker truck, however, was probably the most compelling reason to discontinue trucking water from Bicknell. [49]

By 1957, Charles Kelly was chlorinating Fremont River water collected in his cistern and then trucking the water to the campground. Despite the recommendations of both the 1951 and 1953 Public Health Service inspections, Kelly refused to truck the water down from Bicknell. In 1958, another sanitation report warned that the situation would no longer be tolerated. [50] Kelly argued that, since not one visitor had become sick in 17 years of drinking the Fremont River water, "this was better evidence of its safety than any laboratory test." Kelly also pointed out that since the campground was soon to be moved (according to Mission 66 plans). Since the cost and trouble of transporting water from Bicknell were so great, it would better to postpone any changes to his system. [51]

He was overruled. By April 1959, (two months after Kelly had retired) water was once again being hauled from Bicknell. Once at the park, it was transferred to two new 1,000-gallon tanks, treated, and then gravity-fed to the ranger station and Sulphur Creek campground. The yearly cost of hauling the water from Bicknell was estimated at $2,000. [52]

By the end of the 1950s, water rights and supplies were able to meet the existing minimum demands. Then, the advent of Mission 66 and new highway construction through the heart of Fruita enabled the park service to purchase most of the remaining private inholdings. With these purchases came additional water rights and corresponding problems, usually from outside the monument.

Water Issues of the 1960s and 1970s

Purchase Of The Remaining Fruita Water Rights: 1961-1978

The National Park Service acquired the remaining Fruita properties for administrative, development, and rights-of-way purposes. The first private inholdings in Fruita were acquired in 1961 through condemnation of taking, in order to obtain a right-of-way for the new state highway through the Fremont River canyon. [53] The Declaration of Taking, filed June 2, 1961, by Department of the Interior Solicitor Frank J. Barry, specified that these lands were needed "for road construction and for national monument purposes for the benefit and enjoyment by the visiting public." Along with the lands and buildings, "all and singular water rights" were also acquired by the National Park Service. [54] The lands involved in this declaration of taking included:

• Tract 3, Elizabeth and Richard Sprang's 133.93 acres and 1.883 c.f.s. water rights from the Fremont River [55];

• Tract 7, Cora Smith's 28 acres and 0.147 c.f.s. from the Fremont River;

• Tract 8, 17 acres and .16 c.f.s. of Dean and Lila Brimhall's 54 total acres and .44 c.f.s. from the Fremont River. Also acquired in 1961 were "all the seller's interest in diligence water rights from Sand Creek also known as Sulphur Creek." In December 1961, the National Park Service acquired the remaining rights to the Brimhalls' property and water. [56]

• Tract 9, Max and Ailene Krueger's 65.38 acres and 1.37 c.f.s. from the Fremont River;

• Tract 10, Campbell brothers' Wonderland Stage's 40 acres east of Fruita, with no known water rights.

Thus, the total amount of land acquired in the Declaration of Takings was 284.31 acres. The water rights amounted to 3.84 c.f.s. from the Fremont River and an undetermined portion from Sulphur Creek. [57]

Because of compensation disputes with landowners Cora Smith and Max Krueger, a Final Judgment in Condemnation was not issued until late 1962. On November 30, U.S. District Judge A. Sherman Christensen ruled that the Declaration of Taking was legal and proper and that all just compensation had been made. Thus, Judge Christensen upheld the National Park Service right to those lands and water rights. [58]

Also in 1962, the National Park Service acquired Clarence Mulford's and Ruby and Clarence Chesnut's properties through purchase. Mulford's land was estimated at 144.5 acres, and he held claim to 1.77 c.f.s. of Fremont River water rights. The Chesnuts had 40.9 acres and up to 1.38 c.f.s. of Fremont River water.

The specific amount of water rights acquired from the Chesnuts in 1962 could be disputed, since their parcel was almost six acres smaller than it had been when the Bates Decree was issued in 1935. This reduction was due to a 1936 sale of land to Doc Inglesby, who then sold 2.69 acres to the builders of Capitol Reef Lodge. On the other hand, both the Inglesby and the Capitol Reef Lodge tracts were acquired by the National Park Service by 1978; therefore, the entire 1.38 c.f.s. of Fremont River water rights eventually belonged to the National Park Service. Aside from the exact amount of water rights attached to the Capitol Reef Lodge property, the purchase of the Gifford farm in 1969 should have given Capitol Reef National Monument the remaining .35 c.f.s. of the 8.0 c.f.s. Fremont River water rights decreed in 1935. [59]

Water Supply And Irrigation Improvements: 1962

Between June 1, 1961 and June 30, 1962, Fruita's irrigation system was vastly improved. With the imminent removal of several private inholders and the acquisition of their water rights, the park service could unilaterally upgrade the area's ditches and flumes. When the Fremont River road construction began in July 1961, several ditches and flumes were relocated and others were created to serve the same property as before construction. The improvements specifically related to the road construction consisted of 3,254 feet of new ditches, 32 feet of round culvert, 250 feet of pipe arch, and one ditch value replacement. Other improvements consisted of replacing two flumes on the old Alma Chesnut property and three flumes on the "Old Guy Place," which was owned by the Sprangs. Unfortunately, there is no map to document exactly where the new ditches were constructed. [60]

The culinary water supply was greatly improved with the 1963 completion of the water treatment plant and distribution system. No longer was water hauled from Bicknell in tank trucks and stored in the two large cistern tanks behind the ranger station and in the residence area. Maintenance Foreman Bernard Tracy was responsible for the early operation of the plant, including testing, treatment, and release of water as needed. The new sewage system for the expanded residence area and the new 50-site campground along the Fremont River was also in place by early 1963. [61]

Fremont River Water Rights: 1963-1965

In the spring of 1963, the Torrey Irrigation Company asked the district court to re-examine the Fremont River water rights to determine whether the Hanksville company was using all of its water properly. While the ensuing two years of hearings did not directly affect Capitol Reef's rights, they did point out the need to monitor water use in Fruita more closely, in case future complaints were directed toward the monument.

The complaint was filed because the irrigators at Torrey believed that members of the Hanksville Irrigation Company had illegally diverted 1.5 c.f.s. from near the mouth of Pleasant Creek. Apparently, the Torrey Irrigation Company intended to prove that the purchase and redirection of this 1.5 c.f.s. had been done without the necessary paperwork, making the work invalid. Another dispute existed over exactly how much water was being lost to a Garkane power plant diversion near Teasdale. [62]

When the case was first presented to Judge Erickson in March 1963, the National Park Service was not even aware that a complaint had been filed. Yet, because there were only a few water users at this preliminary hearing, and since there was wide disagreement among those present, Judge Erickson ordered that accurate monitoring devices be installed at all diversions. [63]

National Park Service officials belatedly learned that these devices were to be installed by June 1, 1963. At a subsequent hearing, they successfully requested Judge Erickson and Deputy State Engineer Hubert Lambert to grant more time. The new devices, however, renewed concern that someone would discover that Capitol Reef was not using all of its decreed water. National Park Service Civil Engineer William E. Fields wrote:

Since we now are probably in excess of 100 acres [of land owned in Fruita] and by special permit [with Worthen Jackson] we are only getting 36 acres of this irrigated for us, it was mutually agreed that, if possible, we should hire a man full time to take charge of the irrigating. This man not only would see to it that beneficial use was made of the water but would be charged with keeping precise records of where and when water is applied. [64]

This is most likely when irrigation records for Fruita began to be recorded on a somewhat regular basis. Previously, most if not all users of the Fremont River ignored the 1935 Bates Decree and used what water they wanted. There was no accurate monitoring and no apparent supervision from the state engineer's office since the 1937 Freeman Tanner report. [65]

These 1963-65 hearings established that the Bates Decree was to be the official basis for all water rights claims on the lower Fremont River. Judge Erickson ruled during the May 24, 1963 hearing:

The last legal action pertaining to water rights in this case was a decree by Judge Nephi Bates on July 15, 1935. At that time there were certain water rights defined and at the same time primary and secondary water was stipulated (sic). Since that time there has been no legal action at all based on this decree or use or non-use of the water. There have been no official records kept of use or non-use and as of now water rights, as far as the court is concerned, are the same as they were in the decree. [66]

Erickson said that the 1935 decree would be used as a basis for all his future decisions. Thus, if Capitol Reef managers wanted to make sure they maintained the monument's share of Fremont River water, they had to prove that the National Park Service had legally acquired water rights with its Fruita land purchases. [67]

An ongoing concern from National Park Service officials during these hearings was that Capitol Reef was not credited for all of the water rights it had acquired up to 1963. This caused the National Park Service to re-investigate all previous land sales in order to itemize exactly how much water came with which purchases. [68]

By the end of 1965, the hearings were concluded and Capitol Reef's water rights had not been changed. This period of judicial involvement did, however, change some management practices at the monument. Water was more closely monitored, and more complete docket files were created in order to better document the National Park Service's water rights.

Aldridge Dam Proposal: 1959-1964

Judge Erickson suggested during the 1963 hearings that all Fremont River water users would benefit if they held claim to as much of their right as possible, so they would not lose out to other states further down the Colorado River. One way water could be more beneficially used, according to Erickson, was to build a reservoir for winter storage somewhere on the lower Fremont River. [69]

Caineville and Hanksville irrigators, who often saw the Fremont River slow to a negligible trickle during the middle of the summer, had dreamed of such a reservoir for some time. The site chosen for a modest earthen dam and reservoir was just east of the abandoned ranch community of Aldridge, approximately 5.5 miles east of the monument boundary.

In 1959, the Utah Water and Power Board urged the National Park Service to lend its support to diverting the new highway, Utah State Route 24, around the proposed reservoir site. [70] Zion National Park Superintendent Paul Franke responded that, since the dam site was outside the monument, the state highway department was in complete control of the new road's alignment. For Franke, the only concern of the National Park Service was whether the dam's height might cause water to back up Pleasant Creek into the monument. [71] Capitol Reef Superintendent William Krueger knew the Aldridge dam proposal was supported by several prominent local leaders. Nevertheless, he observed, "It is well known by the old-timers that such a structure would be of value only a short time and then would fill [with sediment] from the flood waters of the many washes and streams above." [72]

Despite this assessment, the Utah Water and Power Board submitted an application to appropriate water for the site in November 1960. This application specified that the proposed earthen foot dam would be built just east of the present river ford. The dam was to be 100 feet high, impound 17,000 acre-feet of water, and inundate 660 acres surrounding the junction of the Fremont River and Pleasant Creek. The reservoir would be about 1 3/4 miles long and about 1/2 a mile wide. [73]

The highway through the Fremont River canyon was completed in 1962. Its new alignment closely followed the river past its junction with Pleasant Creek and through the heart of the proposed reservoir. Nevertheless, to avoid the rather narrow stretch of canyon in which the dam was proposed, the Utah Water and Power Board provided the necessary funds to divert the road onto the southern benches. [74] Meanwhile, the application process continued. The proposal to build the Aldridge dam and reservoir was published in the Richfield Reaper on December 20, 1962. No protests were reported. Since the state engineer's office saw no initial reason to postpone the project, the formal application was approved on June 30, 1963. [75]

In February 1964, the Utah Water and Power Board called a meeting of all lower Fremont River water users to explain the next steps necessary to get dam construction underway. The project would cost approximately $225,000, which would be provided by the Utah Water and Power Board. This money would be repaid over a period of years by all users of the lower Fremont. In order to insure adequate water supply, orderly apportionment, and repayment, the Utah Water and Power Board would also assume all water rights on the lower Fremont River until the dam was paid off. The rights taken would include those above the proposed dam, such as at Fruita, as well as the actual users of the reservoir's waters below the dam. [76]

While Superintendent Krueger did not offer an opinion of the project or its implications for Capitol Reef. However, Regional Director Daniel Beard observed that the Aldridge dam appeared to be "a reasonable solution to the problem," if he understood the proposal correctly. [77] Yet, R. W. Reed, the new branch chief of water resources, cautioned Beard about the project's possible effect on Capitol Reef's still uncertain water rights. Reed argued that "the loss of water, if any, resulting from non-participation may not be great enough to warrant the additional cost of participation." [78]

Unfortunately, this is where all National Park Service correspondence on the Aldridge dam and reservoir project ends. The dam and reservoir were not built because of concerns over the siltation problem, which Superintendent Krueger had mentioned back 1959. In the 1970s, speculation over water impoundments needed for the proposed Intermountain Power Project coal-burning power plant caused the Aldridge site to be re-examined. While the dam was still seen as a good idea, it was determined that a reservoir immediately behind the dam would only last from five to 25 years before it was choked with silt. [79]

Sulphur Creek Water Rights: 1966-1978

The 1935 Bates Decree did not address tributary streams, such as Sulphur Creek (often called Sand Creek), Pleasant Creek, and Oak Creek, which run through Capitol Reef National Park.

There are three authorized users of Sulphur Creek water. The National Park Service has priority claim based on Aaron E. Holt's affidavit signed June 14, 1945, stating he had begun yearly irrigation of 40 acres in 1902 from a diversion on Sulphur Creek behind the current visitor center. Holt maintained that he diverted .25 to 1.5 cubic feet per second of water as needed. An accompanying affidavit from Wayne County resident, attorney, and former water commissioner Silas Tanner verified Holt's claim. The affidavit also noted that the water had been consistently used by all of Holt's successors in interest up through Dean R. Brimhall. Since the National Park Service acquired the land and Sulphur Creek water rights from Brimhall in 1961, Capitol Reef's priority claim to Sulphur Creek water is 1902. [80] Capitol Reef National Park filed a diligence rights claim to 1.0 c.f.s. of Sulphur Creek water based on this 1902 priority in 1973. [81]

The other two Sulphur Creek users have 1926 and 1927 priority water rights. At the time Capitol Reef acquired its Sulphur Creek rights, Rulon Jones owned at least the 1927 priority. This 1.0 c.f.s. claim was used to water hay fields near the junction of Sulphur and Sand Creeks, approximately seven miles west of Fruita. The other water rights claim was to 3.0 c.f.s. of Sand Creek water with a 1926 priority right. This water was used to irrigate fields and water livestock on Sand Creek (tributary of Sulphur Creek) north of Torrey and west of Utah Highway 24. By the early 1970s, these claims were purchased by Salt Lake City attorney Ralph Lowe. The upper 3.0 c.f.s. claim was held jointly by rancher Don Pace. [82]

Conflict over Sulphur Creek water use has occurred on two significant occasions. In the very dry year of 1966, Rulon Jones irrigated his hay fields at the junction of Sulphur and Sand Creeks, causing the stream below him to run completely dry. Consequently, Capitol Reef was unable to irrigate portions of the Brimhall life estate or water the area around the visitor center. Jones was visited twice by National Park Service personnel, including Superintendent Harry P. Linder in the company of Water Commissioner Thomas Chappell. At this second meeting, Jones was cooperative and stated that he simply used the water so that it would not go to waste before drying up short of Fruita. Jones agreed to let water down Sulphur Creek to prove his point. However, only days after this meeting, the area had a heavy rain, the water shortage was over, and the dispute ended as quickly as it had begun. [83]

Then in 1976, Ralph Lowe, the new owner of both upriver claims, leased property to Rulon Hunt. Hunt once again diverted Sulphur Creek and left Fruita dry. Superintendent William F. (Franklin) Wallace wrote a strong protest letter to Hunt, warning that if the diversion did not stop, the F.B.I. would be notified. [84] A letter from the Bureau of Land Management district manager, on whose land the new diversion ditch was located, also warned Hunt to "cease and desist." [85]

Apparently, the problem persisted through 1976 and into 1977. In April 1977, Wallace once again visited the diversion site and found a full ditch running onto the property owned by Ralph Lowe, causing Sulphur Creek to run dry at Fruita. Within the week, Superintendent Wallace signed an affidavit stating that an illegal diversion of Sulphur Creek water was causing "serious and irreparable harm to vegetation within Capitol Reef National Park." [86] This affidavit was needed before a preliminary injunction could be filed by the U.S. Justice Department against property owner Lowe.

In August 1977, a representative from the state engineer's office convened a hearing in the county seat of Loa. Representing the National Park Service were Superintendent Wallace, Regional Chief of Water Rights William McKeel, the regional solicitor, and two park rangers. Also at the hearing were "a number of local farmers as witnesses for Mr. Lowe." [87] This hearing had all the makings of another confrontation between local residents and the park. Conflict was averted, however, when both sides agreed to share the water equally. Both Lowe and Wallace agreed to install measuring devices at their points of diversion, while the National Park Service would construct a dividing box at the confluence of Sand and Sulphur Creeks. This compromise was to last until a final determination of water rights was made by either the courts or the Utah state engineer. [88]

By 1978, a permanent solution was reached by all parties. Since everyone concurred that there was simply not enough water in Sand and Sulphur Creeks to accommodate everyone's rights, the three users volunteered to share all water through a seven-day rotation system. This system was devised by Ralph Lowe, Don Pace, and Superintendent Wallace, and was to be monitored by the Utah State Division of Water Rights. [89]

While the National Park Service clearly had priority claim to its share of Sulphur Creek, it determined that compromise was better than confrontation. In this case, the solution seems to have left everyone, if not happy, at least agreeable.

Pleasant Creek Water Rights

When Capitol Reef National Monument was expanded in 1969 and made into a national park in December 1971, about five miles of Pleasant Creek and four miles of Oak Creek were included within Capitol Reef's boundaries. Between 1974 and 1978, the National Park Service purchased all of Lurton and Alice Knee's Sleeping Rainbow Ranch on Pleasant Creek, allowing a 13.13- acre life estate for the Knees. This transaction brought all of the Knees' accumulated water rights under the control of the National Park Service. [90] Those rights included:

1) .925 c.f.s. diligent right of Pleasant Creek water with a priority claim of 1899 (Thisbee Hanks's homestead affidavit). This was based on 36.98 acres of irrigated fields and watering of 50 cattle and 20 horses.

2) .527 c.f.s. accumulated rights to three intermittent draws draining off Miners Mountain to the west. This water was used to help irrigate the 36.98 acres and water those 50 cattle and 20 horses.

3) .02 of .237 c.f.s. from a spring that was used for domestic consumption. It is unknown if the remainder of this right is what was retained by the Knees as part of their life estate.

4) Unspecified amounts of Pleasant Creek and Miners Mountain water needed to water up to 50 cattle and 20 horses. [91]

Oak Creek Water Rights

The 16.09 c.f.s. of upper Pleasant Creek and all Oak Creek water are claimed by Sandy Ranch, which has a priority date of 1913. This was when William Bowns began to build reservoirs on Boulder Mountain (Torgerson, Oak Creek, and Bowns Reservoirs) and divert water through the Waterpocket Fold via Oak Creek Canyon. At the eastern end of the canyon, Bowns and his son, Leo, constructed a 45-foot-high by 106-foot-long rock and cement dam. Water was then diverted into a canal, flume, and series of ditches to water private lands owned by several succeeding interests, which are usually called the Sandy Ranches. The Oak Creek dam was improved in 1955 and again in 1964 or 1965, because of siltation behind the dam and an increased demand for water. [92]

According to Sandy Ranch records, the ranch owns the following water rights:

1) 16.09 c.f.s of upper Pleasant Creek under Certificate 2313;

2) 2.74 c.f.s. from an unnamed tributary of Oak Creek under Certificate 2313;

3) 9.0 c.f.s. of Oak Creek water under Certificate 5045. [93]

Irrigation System Improvements: 1970s

The most significant event concerning water rights in Capitol Reef during the 1970s was the 1973-75 installation of underground pipes and a new diversion system that significantly improved the irrigation of Fruita's orchards. A cement siltation-control pond was constructed near the location where the old upper ditch used to divert the Fremont River. From here, water was pumped as needed through various pipes to the orchards. Once the water reached the orchards and fields, it flowed through the old, existing ditches to flood irrigate the ground. A pipe sprinkler system was also installed to water the picnic grounds and the Jorgensen pasture, which lies across from the road from the Pendleton barn. Although large sections of the old main ditches were abandoned, most of the original irrigation system remained intact. These changes watered more area while eliminating the need for time-consuming, labor intensive ditch cleaning. [94]

Water Rights During the 1980s and 1990s

During the 1980s and 1990s, Capitol Reef National Park managers attempted to solidify existing water rights and began studying all water resources within park boundaries.

1983 Adjudication

General adjudication of all water rights on the western half of the Colorado River Basin began in 1983. This adjudication resulted in a reduction of the park's share of Fremont River water from 8.0 to 7.65 c.f.s. The reasons for the reduction are unclear, but evidently, the "missing" .35 c.f.s. were associated with the Gifford property, purchased in 1969. This conclusion is derived from the fact that "Statements of Water User's Claims" were filed in December 1983 for water rights associated with the former Fruita claims, the Sulphur Creek claim, and the Pleasant Creek claims, except for the .35 c.f.s. believed to have been retained by Dewey Gifford. [95]

As part of this same general adjudication, the National Park Service claimed additional water rights throughout the rest of Capitol Reef National Park. Since grazing was still practiced throughout the park, an additional 3.62 c.f.s. could be claimed due to the over 50 permit holders and their 2,415 head of livestock using the park's various intermittent streams, springs, and waterpockets. The 64 water claims that are mentioned in all Capitol Reef "Statements for Management" from 1984 to 1993 are apparently based on this reasoning. [96]

North District Water Rights

In the early 1900s, several ditches were dug along the eastern flanks of Thousand Lake Mountain to carry spring runoff to the Last Chance (Baker) Ranch. The most extensive of these ditches ran from Deep Creek Lake toward the Baker Ranch. Another ditch trapped snowmelt from McDonald Basin and then drained into the upper Deep Creek ditch. These ditches left many of the upper Waterpocket Fold drainages dry, may have eliminated several riparian communities, and likely left at least one homestead on Bullberry Creek without water. [97]

In 1983, Fishlake National Forest officials determined that the ditches were no longer being used or maintained by the Jeffery family, which then owned the Baker Ranch. The U.S. Forest Service therefore terminated the Jefferys' water transport permits and breached the ditches in several places. This caused the spring runoff to drain directly into the Waterpocket Fold for the first time in 80 years. Superintendent Derek Hambly hoped that the water now entering the Deep Creek drainage would flow into the South Desert and create a new riparian environment. [98]

Water Quality Research

Prior to the 1980s, there was little water quality research or sampling for any of the park's streams, springs, or waterpockets. One of the first extensive investigations was completed during 1981 for the Fremont River and Sulphur and Pleasant Creeks. This research documented some gross beta radiation in the Fremont River, apparently caused by man-made agents. The investigators recommended extensive monitoring to ensure that beta particles were not entering the culinary water supply, and to lay the groundwork for further water quality research. [99]

Over the next decade, an elaborate water quality research program was initiated at Capitol Reef. An aquatic biologist and a full-time water quality technician were hired, and both in-house and professionally contracted research projects were undertaken. These have concentrated mostly on the Fremont River and on the ecologically unique waterpockets, or tinajas, in the southern part of the park. These extensive research projects should clarify the actual, as opposed to the assumed, impacts that 100 years of extensive grazing and irrigation farming have had on the water supply of the Waterpocket Fold country. [100] Notably, however, both positions were vacated in 1994 and still were not filled as of 1998, due to lack of funding.

In the summer of 1991, during routine treatment by the Utah Division of Water Resources of the upper Fremont River to eradicate whirling disease in trout, an entire barrel of rotenone was accidentally released upstream from the park. Utah Division of Water Resources officials then dumped large quantities of potassium into the river to neutralize the rotenone. The chemicals turned the Fremont purple for miles and killed virtually all fish and macroinvertebrates in the lower Fremont (including that portion within Capitol Reef). Long-term effects of this spill on the health of the Fremont River are unknown. [101]

Fremont River Dam: 1986-1991

In 1986, the Wayne County Water Conservancy District (WCWCD) applied to the Federal Energy Regulatory Commission (FERC) to construct a dam and hydroelectric power plant on the Fremont River south of Torrey. A 35,000-acre foot reservoir would be used for water storage and recreation and a penstock would divert the Fremont River to a power plant near Capitol Reef's west boundary. Numerous federal water and riparian habitat reports were initiated in response to this proposal. [102]

This was not the first time that a dam and reservoir had been proposed near Torrey. As early as the 1940s, the Bureau of Reclamation had identified the site as a possible water storage and power plant locale. [103] Then, during the height of the Intermountain Power Plant (IPP) project in the 1970s, one proposal called for a dam on the Fremont River near Torrey to store water as needed for the power plant and agriculture downstream. [104]

The National Park Service actively opposed the Fremont dam, probably because it was to be located upstream from Capitol Reef. From the outset, agency personnel filed protests and comments to ensure adequate consideration of the effects of such a dam on water quality and riparian habitat within a national park. [105]

By the end of 1989, the dam's supporters had completed preliminary environmental work and prepared to file for a license application with the FERC. Based on extensive research by Capitol Reef's resource management staff, park managers criticized the preliminary findings of the WCWCD. These critical comments, with similar objections offered by the Bureau of Land Management, were supposed to be attached to the application but were left out by the project proponents. The omission of the federal agency comments caused the FERC to reject the application. Instead, the regulatory commission extended the preliminary permit for another three years, during which time the WCWCD had to re-submit the entire proposal. [106]

By the end of 1991, it appeared that lack of funding and other roadblocks would doom the Fremont River dam project, but proponents had not given up. [107] In June 1992, a hearing to extend the permit was held in Loa. The National Park Service, the Bureau of Land Management, and the leading environmental organizations all opposed any deadline extension. The FERC eventually concurred, thereby killing the Fremont River dam project. [108]

Dam proponents were disappointed, but soon turned their attention to an alternative site near Caineville, east of the park and near the old Aldridge dam site. They hoped that this proposal, downstream of Capitol Reef, would meet with less resistance. [109] This issue has yet to be resolved.

The threat of a dam above the park spurred National Park Service and BLM officials to seek Wild and Scenic River status for the Fremont River gorge between Torrey and Fruita. Like the latest dam proposal, action on this matter is still pending.

Conclusions

Compared to other resource issues at Capitol Reef National Park, water rights issues have had an unusually quiet history. The isolation of the area and sparse population along the river have enabled most of those who did use the Fremont River through the Waterpocket Fold to take as much water as needed. Consequently, water use was rarely monitored between 1935, when the Bates Decree adjudicated rights on the lower Fremont River, and the 1960s. Since that time there have been minor disputes over the park's water, but these could be resolved without damaging park resources.

REFERENCES

Books And Department Of Interior Reports

Arrington, Leonard J. Great Basin Kingdom: An Economic History of the Latter-day Saints, 1830-1900. Cambridge: Harvard University Press, 1958.

"Capitol Reef National Park: Statement for Management." 1984, 1987, 1989, draft 1993.

Crampton, C. Gregory. "Mormon Colonization in Southern Utah and Adjacent Parts of Arizona and Nevada, 1851-1900," unpublished manuscript, 1965.

Gilbert, Cathy A., and McKoy, Kathleen L. "Cultural Landscape Assessment, Fruita Rural Historic District, Capitol Reef National Park, Torrey, Utah." Prepared for National Park Service, Rocky Mountain Region, September 1992.

______. "Cultural Landscape Report: Fruita Rural Historic District, Capitol Reef National Park, Torrey, Utah." Draft prepared for National Park Service, Rocky Mountain Region, Cultural Resources Division, 1993.

Hanks, Sidney A., and Hanks, Ephraim K. Scouting for the Mormons on the Great Frontier. Salt Lake City: The Deseret News Press, 1948.

O'Bannon, Patrick W. "Capitol Reef National Park: A Historic Resource Study." Prepared under contract for National Park Service, Rocky Mountain Region, June 1992.

"Proposed Wilderness, Capitol Reef National Park, Utah." Draft Environmental Statement, prepared by National Park Service, Denver Service Center, June 1994.

White, David R. M. "'By Their Fruits Ye Shall Know Them': An Ethnographic Evaluation of Orchard Resources at the Fruita Rural Historic District, Capitol Reef National Park, Utah." Prepared under contract for the National Park Service, Capitol Reef National Park and the Rocky Mountain Region, February 1994.

White, Richard. "It's Your Misfortune and None of My Own": A New History of The American West. Norman: University of Oklahoma Press, 1993.

Worster, Donald. Rivers of Empire: Water, Aridity, and the Growth of the American West. New York: Pantheon Books, 1985.

Newspapers

The Richfield Reaper. 3 March 1993.

Salt Lake Tribune. 8 December 1991.

Archives

Capitol Reef National Park, Torrey, Utah:

Capitol Reef National Park Archives, Visitor Center Library

Capitol Reef Historic Superintendent's Files, Administrative Annex

Capitol Reef Resource Management Files, Resource Management Office

Capitol Reef National Park Superintendent's Files, Administrative Annex

National Archives, Suitland, Maryland:

Record Group 49, Records of the General Land Office, Salt Lake City, Homestead Final Proofs and Certificates.

National Archives, Washington, D.C.:

Record Group 79, Entry 46, Records of the National Park Service, Water Matters.

National Archives and Record Center, Denver, Colorado:

Record Group 79, Records of the National Park Service Accessions:

79-60A-354
79-64A-571
79-67A-337
79-67A-505

University of Utah, Marriott Library Special Collections, Salt Lake City.

Manuscript Collection 100, Charles Kelly Papers.

Interviews

Jackson, Kent. (Lead Orchard Worker, Capitol Reef National Park) Telephone interview with Bradford Frye, 11 August 1994.

Jeffery, Garn. (Rancher, Wayne County). Interview with Keith Durfey. Notes, 10 September 1994. Administrative History Files, Capitol Reef National Park.

Lundy, Charles V. (Superintendent, Capitol Reef National Park) Telephone interview with Bradford Frye. Tape recording, 29 July 1994. Administrative History Files, Capitol Reef National Park.

Pace, Guy. (Rancher, Wayne County). Interview with Bradford Frye. Tape recording, 13 February 1991. Capitol Reef National Park Archives.

FOOTNOTES

¹ Richard White, "It's Your Misfortune and None of My Own": A New History of the American West (Norman: University of Oklahoma Press, 1993), 401-402; Donald Worster, Rivers of Empire: Water, Aridity, and the Growth of the American West (New York: Pantheon Books, 1985), 88-92.

² Ibid.

³ Leonard J. Arrington, Great Basin Kingdom: An Economic History of the Latter-day Saints, 1830-1900 (Cambridge: Harvard University Press, 1958), 53.

⁴ Ibid.

⁵ Patrick W. O'Bannon, "Capitol Reef National Park: A Historic Resource Study," prepared under contract for the National Park Service, Rocky Mountain Region, June 1992, 33-34; C. Gregory Crampton, "Mormon Colonization in Southern Utah and Adjacent Parts of Arizona and Nevada, 1851-1900," typed manuscript, 1965, Box 5, Folder 5, Capitol Reef National Park Archives.

⁶ Homestead Act Final Proof Papers, Thisbee R. Hanks, Homestead Application No. 12494, Final Certificate No. 6406, Sections 20 and 29, Township 30 South, Range & East, Salt Lake Land Office (14 June 1899), Box 140, Records of the Bureau of Land Management, Record Group 49 (RG 49), National Archives, Suitland, MD.; Sidney Alvarus Hanks and Ephraim K. Hanks, Scouting for the Mormons on the Great Frontier (Salt Lake City: The Deseret News Press, 1948), 229; O'Bannon, 39-41.

⁷ Homestead Act Final Proof Papers, Nels Johnson, Homestead Application No. 12513, Final Certificate No 5648, Sections 14, 22, and 23, Township 29 South, Range 6 East, Salt Lake City Land Office (25 January 1897), Box 136, RG 49, National Archives, Suitland, MD.

⁸ Homestead Final Proof Papers, Elijah Cutler Behunin, Homestead Application No. 12760, Final Certificate No 7026, Section 15, Township 29 South Range 6 East, Salt Lake City Land Office (1 June 1901), Box 149; Hyrum S. Behunin, Application No. 12761, Final Certificate No. 7746, Section 22, (29 October 1904), Box 159; Leo R. Holt, Application No. 12978, Final Certificate No. 6137, Section 14, (8 May 1899), Box 136, all in RG 49, National Archives, Suitland, MD. Also see O'Bannon, "Historic Resource Study," 24-27.

⁹ 1895 Survey Plat, published 1896, Drawer 3, Folder 2, Capitol Reef National Park Archives.

¹⁰ Cathy A. Gilbert and Kathleen L. McKoy, "Cultural Landscape Report: Fruita Rural Historic District, Capitol Reef National Park," draft prepared for National Park Service, Rocky Mountain Region, Cultural Resources Division, July 1993, 4-43. This draft landscape report also contains detailed descriptions of the evolution of each orchard. Also see Gilbert and Kathy McKoy, "Cultural Landscape Assessment, Fruita Rural Historic District, Capitol Reef National Park, Torrey, Utah," prepared for National Park Service, Rocky Mountain Region, September 1992, 9, 38. O'Bannon, 32-34 also gives an extensive description of early orchard practices and provides other sources of information.

¹¹ The original deeds and affidavits are recorded with the Wayne County Clerk, Loa, Utah. Examples can found among the copies of deeds and affidavits found in File L54-Dockets, Capitol Reef Superintendent's Files, Administrative Annex, Capitol Reef National Park.

¹² David R. M. White, " 'By Their Fruits Ye Shall Know Them': An Ethnographic Evaluation of Orchard Resources at the Fruita Rural Historic District, Capitol Reef National Park, Utah," prepared under contract for the National Park Service, Capitol Reef National Park, Rocky Mountain Region, February 1994, 18-19; O'Bannon, 27-38.

¹³ Freeman Tanner, Water Commissioner, "Fremont River Distribution, June 10, 1937 to July 10, 1937," File CR-660-05.7, Accession 79-60A-354, Container 63181, Box 3, Records of the National Park Service, Record Group 79 (RG 79), National Archives-Rocky Mountain Region, Denver, Colorado (hereafter referred to as NA-Denver); partial copy in L54-Sulphur Creek Water Rights, Capitol Reef Superintendent's Files, 1 (hereafter called the Tanner Report).

¹⁴ Decree, Hanksville Canal Company v. Torrey Irrigation Company, Sixth Judicial District Court of the State of Utah, Loa Utah, 15 July 1935, photocopy found in File L54-Dockets, Capitol Reef Superintendent's Files.

The Findings of Fact and Conclusions of Law are not found in the L-54 Docket file but may possibly be located in the Wayne County Courthouse in Loa. These documents may shed light on the specific priority claims for each water user.

¹⁵ Ibid., 2.

¹⁶ Ibid., 3.

¹⁷ See copies of deeds in File L-54-Dockets, Capitol Reef Historic Superintendent's Files, Administrative Annex, Capitol Reef National Park.

¹⁸ Ibid.

¹⁹ Tanner Report, table of water decreed, used and land irrigated.

²⁰ Ibid., 6-7.

²¹ Ibid., 4, table on gage readings and discharge in second feet.

²² Hendricks to Patraw, 27 June 1938, File CR-660-05.7, 79-60A-354, Box 3, RG 79, NA-Denver.

²³ Stanley to Patraw, 14 September 1938, Ibid.

²⁴ Harlan Stephenson, Resident Landscape Architect, "Monthly Narrative Report," 25 April - 25 May 1938, File NPS-000, Box 1, Ibid. See Chapters 5 and 16 for more details on CCC work at Capitol Reef.

²⁵ Superintendent's Annual Report, 1941, File CR-207-01.4, 79-60A-354, Container 63179, Box 1, RG 79, NA-Denver. Zion National Park supervised Capitol Reef from 1937 to 1960 except for a short time in the mid-1950s.

²⁶ A. van V. Dunn, National Park Service Hydraulic Engineer, to Superintendent Franke, 4 April 1941, File CR-601, 79-60A-354, Container 63180, Box 2, RG 79, NA-Denver.

²⁷ Ibid.

²⁸ Ibid.

²⁹ A. van V. Dunn, "Analytical History of Land Title, Section 14, T. 29 S., R. 6 E., S.L.M." 8 October 1942, photocopy in File L54, Capitol Reef Historic Superintendent's Files, 17. This document contains a considerable amount of detailed information about Fruita land transactions and property description prior to NPS arrival.

³⁰ "Water Right Deed 3, Acquisition of Alma Chesnut Land and Water Rights," (n.d., post 1947), File L54-Dockets, Historic Superintendent's Files contains a list of all deeds and other legal document pertaining to purchase; also see copies of deeds in the same file.

³¹ Judgment of Taking, United States v. Five Parcels, Alma Chesnut, et. al, Civil No. 376, 23 July 1942, Wayne County District Court, Loa, Utah; copy in File L54-Dockets, Capitol Reef Historic Superintendent's Files.

³² Superintendent Franke to Regional Director, 22 March 1943, File CR 201-06, 79-60A-354, Box 1, RG 79, NA-Denver.

³³ Charles Kelly, Diary, 19 January 1944, Charles Kelly Papers, Box 1, Folder 1, Manuscript Collection 100, University of Utah Library Special Collections, Salt Lake City.

³⁴ Fred Fagergren, Zion Chief Ranger to Zion Superintendent, 9 February 1944, File CR 650-03, 79-60A-354, Box 3, RG 79, NA-Denver.

³⁵ Memorandum dated 8 August 1946, File CR 600-01.2, Box 2, Ibid.

³⁶ Kelly to Superintendent Smith, 27 September 1949, File CR 660-05.7, Box 3, Ibid.

³⁷ Smith to Regional Director, 18 October 1949, Ibid.

³⁸ Kelly to Zion Superintendent, 20 September 1950, File CR-660-05.7 (Part III), 79-60A-354, Box 3, RG 79, NA-Denver. The following events are also recounted in Chapter 6.

³⁹ Ibid.

⁴⁰ Ibid.

⁴¹ Acting Assistant Director Cook to Regional Director, 13(?) October 1950 and Arthur B. Demaray, Assistant Director, to Regional Director, 14 November 1950, Ibid.

⁴² Demaray to Regional Director 14 November 1950.

⁴³ A. van V. Dunn, Chief, Water Resources Division, to Regional Director, 14 March 1952, Ibid. This letter contains a great deal of information about the status of water rights during this time.

⁴⁴ "Application for Extension of Time Within Which to Resume Use of Water, State of Utah," (attached to Demaray to Regional Director 14 November 1950 memorandum). This seems to be a sample copy since there is no application number. The Utah State Engineer or other state office may have the original application.

⁴⁵ See various correspondence from the end of 1950 through 1952 in File CR-660-05.7, 79-60A-354, Box 3, RG 79, NA-Denver.

⁴⁶ See Mission 66 planning documents, File A9815, Accession 79-67A-337, Container 919498, Box 1, RG 79, NA-Denver.

⁴⁷ Hugh M. Miller, Regional Director, to Director, 13 April 1956, File L54- Historic Compacts, Capitol Reef Superintendent's Files; Superintendent's Monthly Reports, July 1956, Box 4, Folder 3, Capitol Reef National Park Archives.

⁴⁸ Lloyd O. Leslie, Public Health Service, "Report on Inspection of Sanitary Facilities, Capitol Reef National Monument, Utah," October 1951, File CR 660-03, Accession 79-60A-354, Box 3, RG 79, NA-Denver.

⁴⁹ See correspondence in File D5031, 79-64A-571, Container SB 202382, Box 1, RG 79, NA-Denver.

⁵⁰ Gene B. Welsh, Public Health Service, "Report on Inspection of Sanitary Facilities," July 1958, Ibid.

⁵¹ Kelly to Zion Superintendent, 21 August 1958, Ibid.

⁵² Superintendent's Monthly Reports, March-April 1959, Box 4, Folder 3, Capitol Reef National Park Archives.

⁵³ See memoranda, reports, and correspondence in Files A9815 and L1415, Accession 79-67A-337, Box 1, RG 79, NA-Denver.

⁵⁴ Declaration of Taking, U.S. v. 284.31 acres, Civil No. C-95-61, U.S. District Court, District of Utah, Central Division, 2 June 1961, 2; copies in L54-Dockets, Capitol Reef Superintendent's Files.

⁵⁵ Max and Elizabeth Lewis purchased 1.133 c.f.s. Upon her husband's death, Mrs. Lewis married Richard Sprang. Another .75 c.f.s. came with land purchased from Dewey Gifford prior to the Sprangs' arrival in the area.

⁵⁶ U.S. v. 284.31 acres, Exhibit II, Schedule A. The Brimhall property was divided into two parts, with 17 acres set aside for the highway right-of-way and employee residences. The remaining 37 acres were purchased separately as a life estate the following year. The Sulphur Creek water rights, which had been passed down from Aaron Holt's claims, are addressed later.

⁵⁷ See exhibits (descriptions of property) and schedules related to Declaration of Taking, Ibid. Useful in tracking the transfer of water rights from the 1935 decree to 1963 is a table called "Distribution and Transfer of Water Rights 8.00 c.f.s of Water-Fruita Residents," compiled by L. Sando in October 1962 and revised in May 1963. It is found in File L54-Historic Compacts, Capitol Reef Superintendent's Files.

⁵⁸ Final Judgment in Condemnation, U.S. v. 284.31 acres, 30 November 1962.

⁵⁹ The documents pertaining to these land sales and Declaration of Takings are in the L1425 and L54, Capitol Reef Historic Superintendent's Files.

⁶⁰ Superintendent William Krueger to Regional Director, 27 July 1962, File L54, Capitol Reef Historic Superintendent's File.

⁶¹ Curtis E. Richey, Sanitary Engineer Director, NPS Consultant, "Field Trip to Capitol Reef National Monument, 20 July 1963," File D5031, 79-67A-505, Container 342490, Box 1, RG 79, NA-Denver.

⁶² There are numerous field reports and correspondence related to the various hearings before Wayne County Judge Ferdinand Erickson and the state engineer between April 1963 and July 1965. These are in L54-Historic Compact and L54-Dockets, Capitol Reef Historic Superintendent's Files.

⁶³ Order, Hanksville Canal Company v. Torrey Irrigation Company, Sixth Judicial District Court for Wayne County, Civil No. 167, copy in L54-Dockets.

⁶⁴ Fields to Assistant Regional Director, 27 May 1963, L54- Historic Compacts. These records do not show if such a full-time position was ever created, but it is doubtful since later correspondence states that there were still no adequate record of water use.

⁶⁵ Ibid.

⁶⁶ Ibid.

⁶⁷ Ibid.; Superintendent Krueger to Regional Director, 11 June 1963, Ibid.

⁶⁸ Thomas J. Allen, Regional Director, to Wayne D. Criddle, State Engineer, 7 May 1963, L54-Historic Compacts; Daniel B. Beard, Regional Director, to Regional Solicitor, 28 May 1965, and J. Stuart McMaster, Regional Solicitor, to Hubert Lambert, Acting State Engineer, 6 July 1965, File L54-Dockets, Capitol Reef Historic Superintendent's Files.

⁶⁹ Fields to Regional Director, 27 May 1963.

⁷⁰ Jay R. Bingham, Executive Director, Utah Water and Power Board, to Superintendent Krueger, 24 August 1959, File D30, 79-67A-337, Container 91948, Box 1, RG 79, NA-Denver.

⁷¹ Franke to Bingham, 3 September 1959, Ibid.

⁷² Krueger to Franke, 30 August 1959, Ibid.

⁷³ "Application to Appropriate Water, State of Utah," Application No. 32509, submitted 29 November 1965, copy in L54-Historic Compacts, Capitol Reef Historic Superintendent's Files. The proposed reservoir's western end would have been about 1 1/2 miles east from the current national park boundary. It would have inundated the cottonwood grove near the river ford road access.

⁷⁴ Superintendent Krueger to Regional Director, 13 February 1964, File L54-Historic Compacts.

⁷⁵ Application No. 32509. During 1962, another reservoir application was filed by Stewart and John Campbell, who owned the former state school section on the monument's eastern boundary. They proposed to divert 40 c.f.s. and make a small, 300 acre-foot reservoir. It was projected, however, that the water would not back up into the Capitol Reef - A. van V. Dunn, Chief, Branch of Water Resources to Regional Director, 15 August 1962, File L54-Historic Compacts, Capitol Reef Historic Superintendent's Files.

⁷⁶ Krueger to Regional Director, 13 February 1964; Daniel Beard, Regional Director, to Regional Solicitor, 24 February 1964, Ibid.

⁷⁷ Beard to Regional Solicitor.

⁷⁸ Reed to Regional Director, 6 March 1964.

⁷⁹ See notes from phone conversations between unknown National Park Service official (most likely Superintendent Wallace) and Glen Willardson, Garkane Power Company, 8 May 1973, and Robert Murcock, Utah Division of Water Resources, 11 May 1973, File L54-Capitol Reef Superintendent's Files. These notes provide good information on the various water impoundment proposals associated with the proposed IPP power plant on Salt Wash north of Caineville, only 10 miles east of Capitol Reef National Park. Also see "Proposed Wilderness, Capitol Reef National Park," Draft Environmental Statement, prepared by National Park Service, Denver Service Center, June 1974, 12-28.

⁸⁰ Aaron Holt, Affidavit of Use of Water, 14 June 1945, Wayne County Book of Deeds, Book G, 393; Silas Tanner, Affidavit of Use of Water, 15 June 1945, Ibid. Copies of these affidavits are found in File L54-Sulphur Creek, Historic Superintendent's Files. This is not the Freeman Tanner of the 1937 Tanner Report.

⁸¹ Reid W. Nielson, Regional Solicitor, to Grant Chappell, River Commissioner, 29 April 1977, Ibid. A copy of this diligence claim is in the same file but does not appear to be an approved copy, since it does not have a number. According to the solicitor's letter, the diligence claim number was 2772, State Engineer's File No. 95-747.

⁸² See copies of Certificates of Appropriation in File L54-Sulphur Creek. Also see Dee C. Hansen, State Engineer, to Ralph Lowe, Don Pace, and Capitol Reef, 26 April 1977, Ibid.

⁸³ 1966 various correspondence in File L54-Sulphur Creek, Capitol Reef Historic Superintendent's Files.

⁸⁴ Wallace to Hunt, 17 June, 1976, File L54-Sulphur Creek, Capitol Reef Historic Superintendent's Files.

⁸⁵ Donald L. Pendleton, BLM District Manager to Hunt, 1 September 1976, Ibid.

⁸⁶ Wallace, Affidavit, 5 May 1977, copy in L54-Sulphur Creek.

⁸⁷ Wallace to Regional Director, 21 September 1977, Ibid.

⁸⁸ Ibid.

⁸⁹ "Summary of Meeting of Sand and Sulphur Creek," 15 May 1978, Ibid.

⁹⁰ See Chapter 17 for more information on the purchase of the Knee property.

⁹¹ Kenwood H. McKinney, Utah Division of Water Rights, to William Mekeel (McKeel?), Chief, Division of Water Resources, 15 January and 16 January, 1976 and Statements of Water User's Claims, 95-4003 through 95-4005, Sixth Judicial District Court, Wayne County, Utah, dated 1 December 1983. Copies are in File L54-Knee, Capitol Reef Superintendent's Files.

⁹² Bureau of Land Management, "Approval of Right-of-Way," 20 September 1956, copy in L54-Oak Creek, Capitol Reef Historic Superintendent's Files.

⁹³ Ken Wyrick, Tercero Corporation, to Superintendent Derek O. Hambly, 28 January 1982, Ibid.

⁹⁴ See correspondence in File L54, Capitol Reef Historic Superintendent's Files, and maps in Drawer 4, Capitol Reef National Park Archives. Additional information was provided by Kent Jackson, Lead Orchard Worker, telephone interview with Bradford Frye, 11 August 1994.

⁹⁵ See court documents and correspondence related to In The Matter of All Rights to the Use of Water, Both Surface and Underground, within the Drainage Area of the Colorado River in Kane, Garfield, Wayne, Piute, Emery, Sevier and Sanpete Counties, Utah and Exclusive of the Green River and Virgin River Drainages, Case No. 435, Sixth Judicial District, Wayne County, Utah, 1983; partial records found in File L54-Dockets, Capitol Reef Superintendent's Files.

⁹⁶ Homer L. Rouse, Associate Regional Director, to John R. Hill, U.S. Department of Justice, 5 December 1983, File L54-Dockets, Capitol Reef Superintendent's Files; also see "Statements for Management," 1984, 1987, 1989 and draft 1993, Capitol Reef Superintendent's Files.

⁹⁷ Garn Jeffery, interview with Keith Durfey, 10 September 1994, notes on file in Administrative History files and notes; Guy Pace, Rancher, interview with Bradford Frye, 13 February 1991, Capitol Reef National Park Archives, 31.

⁹⁸ 1983 Annual Superintendent's Report, File A2621, Capitol Reef Superintendent's Files, 8.

⁹⁹ Envirosphere Company, Golden, Col., "Water Quality at Capitol Reef National Park," Final Report, prepared under contract for the National Park Service, Rocky Mountain Region, May 1981, Capitol Reef Resource Management library.

¹⁰⁰ 1989 Superintendent's Annual Report, File A2621, Capitol Reef Superintendent's Files, 5; Charles V. Lundy, Capitol Reef Superintendent, telephone interview with Bradford Frye, 29 July 1994, tape on file, Capitol Reef Unprocessed Archives.

¹⁰¹ 1992 Annual Superintendent's Report, 5.

¹⁰² 1986 Superintendent's Report, File A2621, 8.

¹⁰³ Michael W. Straus, Commissioner, to J. A. Krug, Secretary of Interior, 23 June 1949, File XL 102, Part 8, 1948-49, Box 44, Entry 46 "Water Matters," RG 79, National Archives, Washington, D.C. This letter contains a list of all possible project sites on the Colorado River drainages.

¹⁰⁴ "Proposed Wilderness," June 1974, 12-28.

¹⁰⁵ Ibid.

¹⁰⁶ 1989 Superintendent's Annual Report, 5; 1990 Report, 2; Capitol Reef's comments and objections to the dam, dated July 1991, are found in File L54, Capitol Reef Superintendent's Files.

¹⁰⁷ Salt Lake Tribune, 8 December 1991.

¹⁰⁸ Utah Wilderness Association to Tobias Martinez, Fishlake National Forest Supervisor, 15 June 1992, File L54.

¹⁰⁹ Richfield Reaper, 3 March 1993.