Opponents of artist Christo’s two-decade-old plan to drape the Arkansas River in shimmering fabric staged their last legal stand on Wednesday.
Rags Over the Arkansas River, the all-volunteer, Christo-fighting collective, argues it’s not the two week art show that is so troublesome, but the nearly three-years of construction that it will require.
“It’s objecting to a massive, industrial-sized construction project along the U.S. Highway 50 corridor,” ROAR’s volunteer attorney Michael Harris said.
The three-judge panel of the 10th Circuit Court of Appeals quizzed Bureau of Land Management attorney Vivian Wang about the agency’s approval of Over The River, Christo’s plan to suspend fabric panels over 5.9 miles of the Arkansas River between Salida and Cañon City.
The judges asked about the art project’s impact to wildlife in Bighorn Sheep Canyon and how the BLM balanced the project’s recreational goals with the agency’s mission to protect the land.
Flipping through the 1,700-page, 2011 Final Environmental Impact Statement that outlined the approval of Over The River, Judge Scott Matheson noted that even with mitigation measures, the agency had anticipated impact on the bighorn sheep herd.
“It seems as though the agency is willing to accept that the project will have long-term — moderate at least — impact on bighorn sheep,” Matheson said.
Wang countered that the art project would cause “short-term, low-level disturbances,” not irreparable harm. In balancing these impacts, she said, the agency measured them against the ultimate objective of enhancing the recreational experience for visitors during the two-week installation.
Christo’s Over The River attorney Lori Potter argued that bighorn sheep are hunted in the canyon every year. “This issue about impacts that could be, or may be, or might be to bighorn sheep is, in my opinion, a red herring.”
Harris also noted that the BLM has designated portions of the canyon as areas of critical environmental concern, or ACEC, in the Royal Gorge Resource Management Plan. The designation requires special management efforts to “protect and prevent irreparable damage” to historical, cultural and scenic values, as well as fish and wildlife resources, he said.
“That language does not remotely suggest that within an ACEC, BLM can authorize the intentional damage to a protected resource even on the promise of mitigation. It says protect and prevent irreparable harm. It doesn’t say you can allow it and then fix it later,” Harris said of the long list of mitigation measures the BLM required Christo to follow when it approved the project after several years of environmental review. “Even if you can say a two week art project with three years of construction actually enhances recreation, this is way beyond the intensity that is allowed.”
ROAR has been fighting now 80-year-old Christo for almost a decade. The group has counted no legal victories. declined to hear the group’s appeal of a Colorado Court of Appeals decision affirming the state parks’ approval of the project. of the BLM’s 2011 approval of the project.
two weeks later.
If the appellate court sides with Christo, there is no plan to push the case to the U.S. Supreme Court, ROAR spokeswoman Joan Anzelmo said.
Anzelmo, the former superintendent of the Colorado National Monument, said her group is confident in its argument.
“This project never should have been approved,” she said.
Jason Blevins: 303-954-1374, jblevins@denverpost.com or @jasonblevins
