Mount Lindsey Closure

[TomPierce]

From Senator Roberts:





Thank you for reaching out to share your perspective on SB23-103. As your State Senator, I appreciate hearing from you and understanding your perspective on legislation, even if we may disagree.


As an avid outdoorsman myself and someone who grew up in the mountains of Colorado, I share your appreciation of our great outdoors and want to protect access to outdoor recreation opportunities. While I believe the reasons for bringing this bill forward are and remain valid, the bill as written was overly broad and could have been harmful to my constituents and Coloradans due to that breadth.


Under current law, a landowner that grants land access to a recreational user is already not liable for the vast majority of injuries that could occur. The only exception is if any injuries are proven to be a result of the landowner's “willful and malicious failure to guard or warn against a known dangerous condition, use, structure, or activity on the land likely to cause harm.” Because “wilful and malicious” failure rarely occurs and is difficult to prove in a court of law, recreational users almost never successfully sue landowners. In fact, the Nelson v. United States case, which was at the center of the discussion on this bill, was actually the first instance in 26 years in which a plaintiff successfully sued a landowner in Colorado. The testimony during this bill revealed that even simple and limited signage or other warning will be completely absolved of any liability and thus, I believe the current very pro-landowner protections already in Colorado did not need to be changed in this way.


I understand that certain landowners are viewing the state of the case law differently at this point and that is why I hope to work with you, the bill sponsors, and the outdoor recreation community to work on other, more narrowly-tailored solutions to this problem.


Thank you again for reaching out to share your perspective, and I hope my email helped explain the reasoning behind my vote on this bill. Please do not hesitate to reach out again on this issue or any other.


Best,

Dylan

Pretty vague response. How could the overly broad wording be potentially harmful? How could that be mitigated/eliminated? What are some of the more narrowly-tailored ideas. No, this response really doesn't explain much since it does not get into details other than a mentioning of simple and limited signage being supposedly adequate.

Well, this response IMO opinion is actually downright misleading (don't know if intentional or not...). These responses keep holding up Nelson as the only-case-in-a-quarter-century, thus the statutory system clearly works. Here's the legal sleight of hand: Nelson may have been the only judgment entered, but that only means it actually went to trial and a judgment was ultimately rendered. Given that most civil cases settle (I've read of ranges from 75-90+%, depending on claim type and jurisdiction), there almost certainly have been many. many Nelson-type claims made with property insurers and possibly filed with the courts, then settled. Case settlements rarely attract any press coverage. Keep that distinction in mind, judgments vs. claims. Property owners are thus prudent to be wary of granting open access. And fwiw, the proposed remedy ("Just post a sign") is a bit naive: It assumes a fixed parking lot/point of entry, a single defined path. Better make that sign comprehensive to capture loose rocks, lightning, sandy sections, talus, scree, high angle-inducing heart attacks, etc. Probably best to make it multi-lingual too, etc. etc. Yeah, entirely feasible, airtight legal defense Or just close it off and have legal certainty.

-Tom

[nunns]

I freely admit to not reading all 30 pages and 300+ posts. Addressing the last post, does SAYING an area is closed remove the legal liability of the land owner? The way I understand it, the path on the Air Force base was SAID to be closed, but people used it anyway. Then someone got hurt, and if I understand correctly his rationale was: "they didn't make it hard enough for me to not use the trail." How would it be practical to close off an entire mountain to the point where it is truly inaccessible? How inaccessible does it have to be to remove the landowner's legal liability?

Sean Nunn
Raytown MO

[two lunches]

How would it be practical to close off an entire mountain to the point where it is truly inaccessible? How inaccessible does it have to be to remove the landowner's legal liability?

Sean Nunn
Raytown MO

i think the practicality and practicability really just boils down to money.

Cielo Vista has clearly run the numbers and spent a tremendous amount of money to protect their property from uninvited guests. it's possible that people who have gotten away with it aren't dumb enough to post about it on the internet, but i have read an awful lot more stories about people getting busted on those peaks than i have about people getting away with trespassing.

Lindsey/Democrat, etc. are a totally different story as it appears the landowners are not willing to expend the same amount of resources to seal things up... but to play devil's advocate, they also haven't imposed a for-profit system to grant access to hikers or hunters which includes a liability release waiver. last june i ran the numbers and calculated that CV made something like $8,000 in a single day from hikers paying to access Culebra/Red and the CV Southern group- this is, of course, a FRACTION of the money they make off guided hunts and while i would not refer to either of those as "passive income" i'm sure it helps pay for the monitoring systems in place on the ranch

[nunns]

I am not an expert on the geography of Colorado, but it seems like it is easier to control access to Culebra and the other mountains owned by the ranch than it would be for say DeCaLiBron. The main trailhead for Lindsey, however, isn't exactly right off the interstate. So maybe it would be possible to control access in that case.

I still believe there is a viable solution to this problem, but changing the thought processes of people (and society) regarding responsibility for our own actions has to be a part of that.

Sean Nunn
Raytown MO

[justiner]

Lindsey/Democrat, etc. are a totally different story as it appears the landowners are not willing to expend the same amount of resources to seal things up... but to play devil's advocate, they also haven't imposed a for-profit system to grant access to hikers or hunters which includes a liability release waiver.

I don't think that's exactly true. The Trenchara Ranch is private, but does have have a way to pay for access:

https://trincheraranch.com/

They advertise on the homepage there's 3 14ers on the ranch property. The easement that Louis Bacon has been celebrated, awarded, and given tax breaks still allows him to do much:

“As long as he doesn’t subdivide the property, clear cut it, pave it over or do other Draconian management regimes on it, he’s free or any landowner is free to go about managing it as a working ranch,”

https://coyotegulch.blog/2012/12/05/san ... chieftain/

I don't know if public access is really part of the master plan - and def. not so long as Louis Bacon is alive.

[CaptainSuburbia]

Lindsey/Democrat, etc. are a totally different story as it appears the landowners are not willing to expend the same amount of resources to seal things up... but to play devil's advocate, they also haven't imposed a for-profit system to grant access to hikers or hunters which includes a liability release waiver.

I don't think that's exactly true. The Trenchara Ranch is private, but does have have a way to pay for access:

https://trincheraranch.com/

They advertise on the homepage there's 3 14ers on the ranch property. The easement that Louis Bacon has been celebrated, awarded, and given tax breaks still allows him to do much:

“As long as he doesn’t subdivide the property, clear cut it, pave it over or do other Draconian management regimes on it, he’s free or any landowner is free to go about managing it as a working ranch,”

https://coyotegulch.blog/2012/12/05/san ... chieftain/

I don't know if public access is really part of the master plan - and def. not so long as Louis Bacon is alive.

A couple years ago Louis Bacon was willing to allow me to climb Hamilton and Lindsey from the private property side.

Screenshot_20230422-151059_Yahoo Mail~2.jpg

[GuiGirard]

I am not an expert on the geography of Colorado, but it seems like it is easier to control access to Culebra and the other mountains owned by the ranch than it would be for say DeCaLiBron. The main trailhead for Lindsey, however, isn't exactly right off the interstate. So maybe it would be possible to control access in that case.

I still believe there is a viable solution to this problem, but changing the thought processes of people (and society) regarding responsibility for our own actions has to be a part of that.

Sean Nunn
Raytown MO

The difference between Culebra and the other privately owned 14ers is that the landowner (in this case the Cielo Vista Ranch) owns and controls the whole flank of the mountain, all the way down to the nearest county road, where the property line is fenced.
To physically restrict access to Lindsay from its standard route, the Trinchera ranch would have to fence off the county line at ~ 13,000 ft where the trail crosses a ridge S of the Iron Nipple summit. I don't know how that would work out with the conservation easements though.
Alternatively they would have to have personnel present in that area telling people to turn around. And that's quite an investment and a commitment to prevent trespassing, honestly. It is my understanding that having no trespassing signs are sufficient to release the ranch from liability, should a hiker (ie, legally, a trespasser) get hurt up there.
Whether or not you want to hike and trespass is your decision and your responsibility, not mine.

Now, do I agree with your second paragraph? Yes, 100% .

[amderr22]

From Senator Roberts:





Thank you for reaching out to share your perspective on SB23-103. As your State Senator, I appreciate hearing from you and understanding your perspective on legislation, even if we may disagree.


As an avid outdoorsman myself and someone who grew up in the mountains of Colorado, I share your appreciation of our great outdoors and want to protect access to outdoor recreation opportunities. While I believe the reasons for bringing this bill forward are and remain valid, the bill as written was overly broad and could have been harmful to my constituents and Coloradans due to that breadth.


Under current law, a landowner that grants land access to a recreational user is already not liable for the vast majority of injuries that could occur. The only exception is if any injuries are proven to be a result of the landowner's “willful and malicious failure to guard or warn against a known dangerous condition, use, structure, or activity on the land likely to cause harm.” Because “wilful and malicious” failure rarely occurs and is difficult to prove in a court of law, recreational users almost never successfully sue landowners. In fact, the Nelson v. United States case, which was at the center of the discussion on this bill, was actually the first instance in 26 years in which a plaintiff successfully sued a landowner in Colorado. The testimony during this bill revealed that even simple and limited signage or other warning will be completely absolved of any liability and thus, I believe the current very pro-landowner protections already in Colorado did not need to be changed in this way.


I understand that certain landowners are viewing the state of the case law differently at this point and that is why I hope to work with you, the bill sponsors, and the outdoor recreation community to work on other, more narrowly-tailored solutions to this problem.


Thank you again for reaching out to share your perspective, and I hope my email helped explain the reasoning behind my vote on this bill. Please do not hesitate to reach out again on this issue or any other.


Best,

Dylan

Pretty vague response. How could the overly broad wording be potentially harmful? How could that be mitigated/eliminated? What are some of the more narrowly-tailored ideas. No, this response really doesn't explain much since it does not get into details other than a mentioning of simple and limited signage being supposedly adequate.

Well, this response IMO opinion is actually downright misleading (don't know if intentional or not...). These responses keep holding up Nelson as the only-case-in-a-quarter-century, thus the statutory system clearly works. Here's the legal sleight of hand: Nelson may have been the only judgment entered, but that only means it actually went to trial and a judgment was ultimately rendered. Given that most civil cases settle (I've read of ranges from 75-90+%, depending on claim type and jurisdiction), there almost certainly have been many. many Nelson-type claims made with property insurers and possibly filed with the courts, then settled. Case settlements rarely attract any press coverage. Keep that distinction in mind, judgments vs. claims. Property owners are thus prudent to be wary of granting open access. And fwiw, the proposed remedy ("Just post a sign") is a bit naive: It assumes a fixed parking lot/point of entry, a single defined path. Better make that sign comprehensive to capture loose rocks, lightning, sandy sections, talus, scree, high angle-inducing heart attacks, etc. Probably best to make it multi-lingual too, etc. etc. Yeah, entirely feasible, airtight legal defense Or just close it off and have legal certainty.

-Tom

Wow - he also misquotes the law in a CRITICAL way that affects the issue. He describes it as saying "willful and malicious" but that is not right. The law is "willful OR malicious", which means a landowner can be sued for willfully failing to warn someone even if it was not necessarily negligent or malicious. That's the whole point. If the law really did say 'willful and malicious' there would be no problem.

If it was a mistake by the Senator, it demonstrates incompetence. If it wasn't a mistake, his staff is purposefully trying to confuse people about what state law actually says.

Either way - not a great look.

A coalition of organizations including Colorado Fourteeners Initiative, Access Fund, Colorado Mountain Club and others are working to address the issue and find a solution - you can learn more or join their efforts at www.fixCRUS.org. Several members of the coalition are doing legal research right now to identify some of the cases you refer to that settled out of court and thus are not publicized - we know there have been many other cases and this will help us demonstrate that when we re-introduce the legislation next session.

[amderr22]

I freely admit to not reading all 30 pages and 300+ posts. Addressing the last post, does SAYING an area is closed remove the legal liability of the land owner? The way I understand it, the path on the Air Force base was SAID to be closed, but people used it anyway. Then someone got hurt, and if I understand correctly his rationale was: "they didn't make it hard enough for me to not use the trail." How would it be practical to close off an entire mountain to the point where it is truly inaccessible? How inaccessible does it have to be to remove the landowner's legal liability?

Sean Nunn
Raytown MO

Some key details from the Air Force Academy case:
-While the Air Force Academy said their policy was that the bike trail was closed, there was also a sign posted at the entrance by an unknown party that said "Bike Trail" and made it appear to be open to the public.
-CDOT was doing work in the area and emailed the Air Force Academy at some point asking if they wanted them to remove the "Bike Trail" sign but the Air Force Academy never responded to the email.

Those two facts, the presence of a sign that led the public to believe they had access - and the fact that the Academy was asked if they wanted to remove the sign and did not respond - were enough for the Judge to say they granted "indirect permission' to access their land.

It comes down to perception - do visitors reasonably believe they have permission to access a property or not? If the landowner posts a large sign at the parking lot saying STAY OUT and publishes a notice in the newspaper, that is typically considered enough to send the message so no visitor can realistically claim they still thought they were allowed to be there. A landowner does not actually have to make an area inaccessible for it to be considered trespassing - it just has to be fairly obvious to an average visitor that the area is closed and accessing it is trespassing.

That said, there are lots of open questions that only a judge could answer in Court. Like, what happens if someone vandalizes a sign that says stay out - and the next person who comes along thinks the trail is open, falls, and gets hurt? Is the landowner liable in that situation? No way for sure to know. Similarly, what happens if someone sees the "CLOSED" sign, but also saw that 14ers.com says the peaks are still open, and looks up to see hundreds of people trespassing? Would it be reasonable for them to think, surely the sign must be wrong - I must be allowed to go - right? I have no clue - and many landowners also don't and would rather not wait to find out from a Judge.

[amderr22]

How would it be practical to close off an entire mountain to the point where it is truly inaccessible? How inaccessible does it have to be to remove the landowner's legal liability?

Sean Nunn
Raytown MO

i think the practicality and practicability really just boils down to money.

Cielo Vista has clearly run the numbers and spent a tremendous amount of money to protect their property from uninvited guests. it's possible that people who have gotten away with it aren't dumb enough to post about it on the internet, but i have read an awful lot more stories about people getting busted on those peaks than i have about people getting away with trespassing.

Lindsey/Democrat, etc. are a totally different story as it appears the landowners are not willing to expend the same amount of resources to seal things up... but to play devil's advocate, they also haven't imposed a for-profit system to grant access to hikers or hunters which includes a liability release waiver. last june i ran the numbers and calculated that CV made something like $8,000 in a single day from hikers paying to access Culebra/Red and the CV Southern group- this is, of course, a FRACTION of the money they make off guided hunts and while i would not refer to either of those as "passive income" I'm sure it helps pay for the monitoring systems in place on the ranch

A big difference is the fee issue. If you charge a fee to access your land for recreation purposes, you forfeit the protection of the Colorado Recreational Use Statute, the law at issue. However, you can use the money you charge to pay attorneys to create a liability waiver, force those who pay the fee to sign it, pay for liability insurance, pay to install warning signs and inspect the property, etc. If you don't charge a fee, you are still expected to do a lot of that, like install warning signs and get insured- but you have to pay for it all out of pocket. So it actually ends up leaving people who grant free access more at risk than large landowners who charge for access and just use the revenue to protect themselves. That's the direction things are trending in more generally across sports and hobbies.

Right now the main obstacle to Decalibron access is the $15,000 insurance coverage fee John is facing for liability protection. If he charged people $100 to hike, he'd easily be able to pay for that - heck, he could probably make $100,000+ a year in pure profit - but he does not want to force people to pay $100 to hike - he wants a solution that preserves free public access but also ensures he does not risk his livelihood. Pretty reasonable guy.

[justiner]

Interesting podcast episode on this covering most of the points already discussed. One curious detail is the CFI dude basically saying talks with the Lindsey landowners have effectively ceased

https://podcasts.apple.com/us/podcast/t ... 0610781806

[Briere]

Interesting podcast episode on this covering most of the points already discussed. One curious detail is the CFI dude basically saying talks with the Lindsey landowners have effectively ceased

https://podcasts.apple.com/us/podcast/t ... 0610781806

Interesting podcast. I am surprised by the number of climbers on Lindsey in 2022 when it was fully closed. It sounds like still very roughly over 200+ for the year.