APPENDIX B. - INTERVIEW E

                The following interviews are included in this appendix for the purpose of offering additional information that may not have been included in Chapter V.  The responses are not edited in any way and are verbatim. 

INTERVIEW E:

Canal Trail Questionnaire

·                    The purpose of this open-ended discussion is to obtain as naturalistic a response as possible.  The goal is to gauge general sentiments and put a finger on the pulse of the major concerns and issues revolving around the development of recreational canal trails.

·                    Based on research to date a few of the biggest concerns and issues include:

U.                  Liability of canal companies and landowners.

V.                   Increased O+M costs.

W.                Law enforcement protection for company, landowner and trail user.

X.                  Private property owner rights.

Y.                   Canal company operator’s rights.

Date of interview:  Tuesday, December 1^st 1998, 9:30 A.M.

Name:  Peter Kung

Title/ Titles:               President of Crockett Avenue Distribution System

                                      Secretary Treasure of Logan River Water Users Association (LRWUA)

                                                On board of directors for Logan N.W. Field Canal

Address and Telephone #:

                                                                346 N. 400 W.

                                                                Logan, UT 84321

                                                                752-6025

Administers to what canals? 

All seventeen canals in the Logan River Water Users Association

Ten of which are members of Crocket Avenue and my canal, Logan N.W. Field Irrigation Company.

Which of these are being considered for trail development by others? (Questions specific to these canals are italicized)

Logan city has been pushing it.  Right now they are just talking about connecting the parks going from Cache County Fair Grounds to Central Park.  The Logan, Hyde Park and Smithfield Canal, people have proposed a bike trail along that.  That is not my group other than they are LRWU’s.  And then the Logan Northern Canal has been proposed, but that is not under my jurisdiction.

Endpoints (cities, towns, river diverted from or any other landmarks)

Logan River ­ Bear River.

The total length

About 5 miles.

Capacities and depths

 It varies as you go through.  Its just like a tree. It starts with a big branch and then it gets smaller and smaller. Normally it runs at about 200 cfs.

Width of the canal R.O.W. and the canal itself

In the section its about 15 ft. across and about 2 ft. deep. And we have a rod and a quarter which comes out to 20.6 ft. that was given to us since pioneer days.  It was given by the city for the right to dispose of their storm drain water and we are in the process of trying to renegotiate with the city because its not only the quantity of the water it’s the quality we are worried about because we are starting to get run off that has garbage in it, oil in it, what if a pesticide truck breaks open at say Wal-Mart parking lot, its going to come right in our ditch.  And we are responsible when it kills farm crops.  So, we are trying to tie liability to point sources. 

In what year did canal construction begin?

1860

In what year did the canal open?

1861.         And we didn’t incorporate until 1905. 

We get 38% of the water that comes off of Logan river.  It was set up as a gravity feed.  Corneal Ricks the surveyor that Brigham enlisted in 1860 laid out the system.  So we have water rights that are very strong and hard from 1860.  Not only do we have irrigation rights we also have industrial rights because of the old mills ran on water power.  Non-consumptive rights.  It dumps back into the Bear River.

When I talk to you here today its my own personal opinion. 

1-       Do you know if any canals are currently being used for recreation? If so, what are the existing uses you know of?

·                    Yes they are all used. All seventeen.  Swimming, fishing, tubing…you name it.  Every one overlooks that it is a swamp cooler.  These canals act like one.  So, people sit and dangle their feet in the water or they seek the benefit of opening the window at night and getting the cool breeze.

2-       Do you allow public use/ access? If not, what signing and notice efforts do you have in place to warn recreation users not to use the canal banks?

·                    We do.  We don’t encourage it.  Where ever we think its dangerous we have a sign that says: be careful, danger.  And that is to cover us.  The biggest fear we have is people messing with the water works.  So, we put signs up saying: messing with the works or turning it on or off unauthorized is against the law and we quote the law and those are on all the head gates through town. 

3-       How aggressively are these efforts enforced?

·                    During the irrigation seasonal, fearly well because we have a water master that goes through and will talk to children about being careful, not being on the spillway, not pulling diversion boards.  The other thing we do is we lock things in place.  We lock canals open or lock them closed just to keep out tampering.  Ive gone to Logan city a couple times to have things enforced when people were dumping chemicals, pesticides, printer cartridges.  Caught them doing and brought the police in to read them the law.  So we are into enforcement.  Most people try to get along.  If you listen to us and pay attention to the signs and listen to verbal instructions, fine.  If you start fighting back and say we can do whatever we want then we will bust them.

4-       Do you have any concerns regarding these existing uses?

·                    No, if they are in reason. If they don’t tamper with or erode the banks or throw garbage in, no.  I spent many an hour myself hanging around recreating.

5-       To the best of your knowledge, have there ever been any liability or injury claims lodged against your canal company or other entities or individuals associated with the canal?  If so, what claims?

·                    We have never had a liability case brought against any of these canals because people who grew up here know that it’s a danger.  Most of these canals don’t even have liability or injury policy.  They think its cost prohibited so they essentially wait till it happens and then just pay up rather than pay so much a year.  There is that law that says that unless we do something willfully negligent or draw people in then we can’t be held responsible.  But that is changing we have been talking about buying some thinking that buying insurance is a lot cheaper than finding out that we don’t have enough money to cover a big claim because big claims are in the millions now. 

6-       What existing risk management do you have in place?

·                    My canal company the Logan N.W. Field Company specifically bought insurance in the last two years.  We have signage in other places that say danger canal, stay away or open water…that kind of thing.  We have fenced it off.  And also during the spring during high run off we have taken snow fence material and put it along where it runs through parks to keep children from inadvertently falling in because it is cold and deep.  That is just a courtesy.  Ive seen kids there and I know how easily they can fall in.  I almost lost my dog in the canal. 

7-       How do you feel about piping or covering canals as a solution to liability or to increase efficiency of water conveyance?  Have such discussions taken place concerning the canals your company administers too?

·                    Yes we have. The problems there is that it has just been identified the water resource people in the state, the recharge value of having canals not lined.  So they say a substantial proportion of water leaks through the bottom of our canal and recharges the aquifer in the center of the valley.  The other problem with piping is access, we would have to put in new head gates, new arrangements for cleaning it out. Its cost prohibitive. But we have talked about it in the last few years to maybe separate our irrigation water from the storm drain water, but right now its cost prohibitive so we are not going to do it.  It will be down the line in certain sections by putting up retaining walls but leaving the top open.  Less than one percent of our canal is lined.  The other thing is we are worried about loosing the tree cover.  At first they thought the trees were essentially suckers taking on water, now they realize that the evapotranspiration probably lowers the temperature in town by so many degrees and provides refuge for wildlife.  So we don’t want to loose the associated riparian benefits.

8-       Are you aware of a cities or counties ability to shield canal companies from liability by way of indemnification or inclusion under their respective insurance? 

Typical Maintenance agreement would state that: The city or agency “ holds harmless company from any and all liability arising out of the construction, maintenance and operation of such landscaping, walkways and parking facilities.”     

 Colorado:  1.   Audubon section of the Colorado River Trail which parallels the Redlands Canal. (Mesa Co. indemnified)

10.     Highline Canal  (each respective city)

11.     Westminster and Farmers Highline Canal. (Westminster)

·                    No but I wish they would.  They never have offered us that but we always thought that if we bought insurance together as a group it would be cheaper but again even within my ten members of my Crockett Irrigation Company, we can’t get along.  Everyone has their own board of directors their own agenda. 

9-       Are you aware of Utah’s Recreational Use Statutes?  If so, how much do you know about it?

·                    No, but I wouldn’t mind getting a copy of them if there is one.

10-   Do you feel the liability risks associated with recreational use of canals are higher or lower or equal to the risks associated with other recreational facilities?

·                    I would think the same.  There is only part of the year that we use it so its during the summer.  Kids are out of school so we get heavy visitation when the kids are there and the rest of the year we don’t see anything.  When I do maintenance I can barely get anyone out there to help, boy scouts, etc.

11-   Do you think some of your liability concerns can be addressed given proper design, construction and maintenance of a trail along any of your canals? If so, which concerns?

·                    Yes, I think so.  I think a part of that would be an educational part to educate people to proper conduct and essentially tell people how to be socially nice.  You know you don’t urinate in the peoples back yard and just stay on the trail.  I think that in combination with the proper design and construction and also the proper attitude, and I see that around Boulder, they have signs that tell you what to do with your dog and be considerate.  Some people don’t like that, they don’t like to see dogs running at them at all. 

12-   To the best of your knowledge, what is the existing adjacent land use along the canal/ canals by percentage?

60    % Residential

                                30    % Agricultural

                                10    % Business

13-   What are the existing ownership standings along the length of the canal/ canals?

In terms of:

0      % Public

                                100  % Private

·                    On the upper canal the Logan, Hyde Park and Smithfield Canal its BLM and Forest Service ground on the back side of that.  But most of its private.  The city has one side at a park, it might be municipal but a very small percentage.

14-   Does your company or WUA own land under any portion of the canal/canals?

·                    Yes, we own it all.  The full length of the canal was deeded to us.

15-   Does your company or WUA own easements for any portion of the canal/ canals?

·                    Because we have used a certain section for so long we have what is called a prescriptive easement, but that is generally just the canal bed itself where the water runs, and is more on the laterals.  If someone comes in and tries to do something to these laterals that come off of our main stem, the ones we have by easement, we have a right to use it and they have a five year non-use.  If it goes for five years without being used then we have to either file again to reuse it or we could be denied.

16-   Does the respective city own land under any portion of the canal/ canals?

·                    Wherever the parks are and the County might own the County Fair Grounds where it goes through on either side. But it would be very small percentage wise.

17-   Are you familiar with general ownership standings along the canal/ canals.

-  How much of the canal corridor is owned in fee simple by adjacent landowners? (Own land and canal company has an easement.) 

-  Have adjacent landowners or the city adversely possessed any  sections of the canal R.O.W.?

·                    See #13 and #21.

18-   Please explain your relationship with the BOR regarding ownership of underlying land.

·                    No, not really.  We have talked to them about methods of lining the canal with an impervious clay lining, best methods, best management kind of practices.  But, we really don’t have any agreements with them.

19-   Are there any existing encroachments such as fencing or vegetation? If so, how have you dealt with the problem?

·                    Tons.  Generally what we do is we have had to force the city to go out there and have the board of adjustments make them come into compliance.  In a few cases we have actually gone out and taken the fence down.  We try to work with the property owner.  We warn them once.  And what we are doing now is getting Logan city to…whenever anybody applies for a fence permit or building permit if it has the word canal anywhere near it, contact us and we are willing to work with them.  We actually pay for improvements along the canal, we will buy the cement.  If they put in a retaining wall we will buy shrubs.  We want them to understand that they have to come and ask us for permission first.  About fifty percent is encroached upon right now.  The town is growing so fast especially out near the airport and that is where we are having our problems.  I was just out last night where someone built within ten feet of the canal bank, we cut a deal with them and said if they put in a retaining wall and don’t get any closer we will allow it and if not we will put a cease and disorder on it.  I don’t want to get into law enforcement or zoning or code enforcement so we go to Logan city.  They have been getting better over the last year or so about involving us in their process.

20-   Does your company or WUA have the legal authority to provide (if you wish to) the right for recreation trail use for all parties or some parties? Please explain.

·                    No. its all privately owned.

21-   Conversely, Would consent from your canal company be legally required if easements for recreational trail use on your canals were acquired from the underlying landowner by a recreational entity or agency?

·                    I would think yes.  But that is something we asked them about and there is no legal opinion.  We keep hearing that the attorney general is going to come up with a statement.  We have been approached by property owners and canal company representatives asking who actually owns this and what rights do we have and more importantly who is liable.  There is no answer the city doesn’t want to commit themselves. And there is only three water attorneys in the whole state and we don’t have the funds to pay them.  As far as I know there is no answer yet.  A precedent setting case is needed.  Until someone pays for a legal opinion you don’t get one.  So, I would say yes because by law they technically own the property to the canal bank and so its not really ours.  Our easement is for conveying water and some cleaning.  Not for selling or allowing someone else to trespass for other purposes.  We have the right to trespass for maintenance and cleaning but I don’t think we can convey that to anyone without getting some kind of a legal opinion.    

22-   Are there different answers for different sections of the canal?

·                    Yes.

23-   If easements for a recreation trail were acquired from the underlying landowners by a public entity such as the respective city would Bureau of Reclamation consent to this use be legally binding?

·                    N/A. See #18.

24-   Do you foresee any obstacles in developing a canal as a recreational trail?

 (ALLOW VOLUNTEERING OF ISSUES FIRST)