Rebuttal Statement of Upper Yampa Water Conservancy District

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WEISS AvD VAN SCOYK, LLP ATTOR\'EYS AT LAW FIRST NATIONAL BANK E3U[LDING 600 S0. IINCOLV, SU[TE 202 STEAMBOAT SPRINGS, COLORADO 30437 ROBERT G. WE[SS WARD L. VAV SCOYK JASOti M. YANOWITZ OF COliNSEL GARY ENGLE May 19, 2004 Mr. John R. Fetcher Upper Yampa Water Conservancy District P.O. Box 880339 Steamboat Springs, CO 80488 Dear John: TELEPHOVE: (970) 379-6053 TELECOPfER: (970) 379-6055 I v?nowitz(i?vvsc.com In response to your question, how important are the "C" or "D" holes to the sport of tubing, I am providing you with the following information that I have compiled through a search of the Internet. I need to first clarify that tubing (or toobing) is not a sport, in the ESPN sense of sports, but is instead a mere leisure activity in the nature of having a cookout with friends or tossing a Frisbee at the park. The Reginald Smith Toobing Foundation, the only website I found on the Internet which is dedicated to tubing or toobin; ("Toobing.net"), defines toobing as "the act of leisurely floating down a river with no time constraints or worries." Toobing.net goes on to say that "toobing is (1) getting together with your friends and family and going to the river or creek, (Z) fun for every age, (3) non-strenuous (unless picking up a 12oz cold beverage and raising it to your lips is strenuous to you,) and (4) relaxing. (See Exhibit A p.4). The distinction that tubing is just a mere leisure activity needs to be kept in mind when determining if the C" and "D" holes are important to tubing. The activity of tubing has no standards, rules, scoring, teams, competitions, physical requirements nor does it require any specific physical characteristics of a river other than moving water. The enjoyment of tubing comes from its simplicity--an inner-tube, moving water and a group of friends. In contrast, a sport like freestyle kayaking, which consists of athletes showcasing their skills for doing tricks in a strong hole, requires special physical characteristics of the river, such as holes and waves, there are competitions, rules and scoring criteria. (See Exhibit B p.l). Whereas the sport of freestyle kayaking could not exist without a hole or wave (either natural or man-made) in which the participants can practice their moves or be judged during a competition, tubing can exist anywhere one finds moving water. A search on the Internet usinj "river" and "tubing" or "toobing" comes up with two types of results: (1) commercial outfitters who rent tubes, or (2) testimonials--descriptions of peoples "float" down the river. (See Exhibit C for a general list of links to commercial websites and brief quotes from these sites). The descriptions from both the commercial outfitters, tourist guides and testimonials generally describe tubing as a relaYing way to cool off with family and friends on a hot summer day as shown by the following quotes: