More resorts are banning uphill traffic as skiers flock. And as a second snowy weekend approaches with the entire state now under stay-at-home orders, more health departments and sheriffs are following that lead with both orders and requests to limit outdoor activity by visitors from afar.
San Juan County Sheriff Bruce Conrad on Saturday took the closures an extra step. He limited access to 220,000 acres of federal land to the roughly 700 residents of the one-town county. He joins the Southeast Utah Health Department as the only two jurisdictions to close public lands to everyone except locals.
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But there’s a snag in those protective orders prodded by health officials and intended to stop the spread of COVID-19 in — and to — rural areas where local hospitals could easily be overwhelmed: Federal land policy prohibits limiting access to a select few.
In times of an emergency or public safety issue, like a wildfire, high avalanche danger or an accident, local authorities can and do temporarily suspend all access to public lands.
“I don’t think anyone would have a problem with that type of closure. But this seems to be an effort that quite explicitly discriminates against people who are not from the local area,” said Mark Squillace, a professor of natural resources law at the University of Colorado Law School in Boulder.
The March 16 order by the Southeast Utah Health Department closed restaurants, coffee shops and bars with prohibition of sit-down service in the tourist-reliant Carbon, Emery and Grand counties. It also closed theaters, venues and overnight lodging, noting that the three counties “are surrounded by virus activity.” In the section closing overnight and short-term lodging facilities, the order said only “primary residents” and “essential visitors” who were working in the counties “may utilize public lands for primitive camping purposes.”
The Southeast Utah Health Department has received one appeal to the order, relating to the prohibition of groups larger than 10 and the order’s requirement that remote camps be at least 200 yards apart, department spokeswoman Brittany Garff said.
The Federal Land Policy and Management Act allows federal land managers to give local officials the power to enforce federal laws on public lands — like prohibiting illegal hunting and fishing, for example — but it does not let local officials craft their own rules. Allowing locals but not visitors from other states raises “some serious constitutional issues,” Squillace said, pointing to the “dormant commerce clause” that prevents state or local governments from discriminating against citizens from other locations.
“It’s going to be interesting to see if anyone challenges this. If the counties are challenged here, they likely will not prevail,” Squillace said.
Officials with the Bureau of Land Management and Forest Service said there are no closures of public land but the agencies are working with local health departments and police. When asked if federal land policy allowed local authorities to limit access to public lands to a select few, Forest Service spokesman Lawrence Lujan pointed to federal law that protects state and local authority over people on national forest land. State authority over people does not end when they enter Forest Service land, Lujan said.
“The most recent Forest Service direction is to align with local health and safety guidance such as local curfews or shelter-in-place guidelines,” he said.
San Juan County does not have a reported case of COVID-19. But it has a history of losing people during a pandemic. The 1918 flu pandemic killed more than 200 people in Silverton, roughly 10% of its population, giving the remote mountain town the highest mortality rate in the nation.
Conrad on Saturday issued what he called a “Locals Only” order prohibiting all but essential services in the county. His order said all vehicles parked on U.S. 550 — the “Million Dollar Highway” that traverses the county’s Molas, Coal Bank and Red Mountain passes — were subject to tickets or towing, unless they were registered in the county. The county is roughly 249,000 acres, with 71% of that San Juan National Forest and 18% Bureau of Land Management property.
“This will apply to all San Juan County lands, as backcountry skiers and snowmobilers unnecessarily increase the potential for emergency and medical team response,” Conrad wrote in a letter published Saturday, which noted his remote county’s unique opportunity to “experience less of the tragedy associated with COVID-19.
“Minimizing our exposure to the greater world … is the key to this outcome,” he wrote. “At the same time, we have the potential to be very hard hit should this virus be transmitted throughout San Juan County and Silverton in the manner common illnesses tend to.”
On Monday, San Juan County Public Health Director Becky Joyce issued a “shelter in place” order that prohibited residents from leaving their home except for essential activities, which included outdoor activity like walking, skiing and motorized travel.
Conrad, who was unable to return calls or emails this week, did host an online public meeting with San Juan County officials Monday afternoon where he noted “there have been some ruffled feathers” around the backcountry travel ban.
“I will say, though, if you have yet to realize we are in unprecedented times, then you are either not paying attention or are a denier,” Conrad said. “The people sitting in this room cannot have that option. We cannot be deniers.”
Jayson Barangan, a spokesman for the BLM in Colorado, said the agency is working with Conrad and other local authorities while encouraging backcountry travelers to maintain distancing.
“BLM Colorado has not closed access to public lands,” Barangan said.
Squillace points to the U.S. Constitution’s Supremacy Clause that holds federal law supreme over state law. For example, he said, a county could not ban oil and gas development on federal lands, even if the county health department found that drilling posed a health hazard.
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“It is certainly true that states can enforce crimes that take place on most federal lands, but that strikes me as fundamentally different from limiting who can access public lands,” Squillace said.
Klem Branner, who owns Silverton’s Venture Snowboards with his wife, Lisa, said all the people who are upset with Conrad’s order are from out of town. Over the weekend, dozens of cars lined Red Mountain Pass as skiers treated the coronavirus shutdown “like a vacation,” Branner said.
“Frankly, those feathers should have been plucked. We are a small, vulnerable community, and I think everyone who lives here is in total favor of trying to keep nonresidents out of here,” said Branner, who has seen a small uptick in orders for his Venture splitboards and admits to mixed feelings about his pending annual sale of demo boards, which could drive more people into the backcountry. “It’s only outsiders who are upset about this.”
The Forest Service in Colorado is currently amending operating plans for ski resorts to give them more leeway when closing ski areas to uphill traffic. Vail Resorts joined Arapahoe Basin last week by nixing all uphill skiing at its five Colorado ski areas, and, on Tuesday, Loveland ski area followed suit after a weekend video showed dozens of uphill skiers’ cars parked on Loveland Pass near the ski area. Sunlight ski area announced it was banning uphill travel late Monday. Winter Park ski area announced an uphill access ban on Tuesday.
Aspen Skiing Co., which has embraced the uphill skiing movement as the Roaring Fork Valley positions itself as the nation’s capital for human-powered, uphill recreation, is still grooming trails for uphill skiers. The company has no plans to end uphill access, but is urging skiers not to congregate.
“Skiers can help keep access by following guidelines,” said company spokesman Jeff Hanle, adding that the company will not close uphill access “unless advised otherwise by health officials.”
Ski area operating plans with the Forest Service allow resort managers to temporarily limit uphill access during emergencies or for management work like end-of-season tear-down, grooming or avalanche mitigation. Resorts are now submitting amendments to the Forest Service to allow resort managers to close uphill for other reasons.
Those amendments do not require public notice or review under the National Environmental Policy Act.
Other counties, like Summit, Eagle, Routt, San Miguel and Pitkin, are urging visitors to stay away. Ouray County on Tuesday asked people to refrain from backcountry activity where an injury and rescue could result in safety personnel being forced to break social distancing guidelines and being pulled from service after a rescue to quarantine. Other county sheriffs are considering posting search-and-rescue members at borders with similar messages for visitors. More than three dozen San Miguel County search-and-rescue volunteers deployed Tuesday to rescue a snowboarder injured in an avalanche outside Ophir.
On the other side of Red Mountain Pass from Silverton is the two-town Ouray County, where also there are no confirmed cases of COVID-19. Ouray County Sheriff Lance FitzGerald on Tuesday issued a request that residents and visitors alike refrain from backcountry recreation.
With emergency services and search-and-rescue teams largely staffed by volunteers, going out to help people in remote locations “could have a tremendous impact” on the 4,800-person county, FitzGerald said.
“We felt we definitely wanted to request it but we didn’t think it was within our right to order it at this point in time,” FitzGerald said. “If we do see cases in our county, we might have to change our strategy but we felt a request was the best course of action right now.”
The Colorado Avalanche Information Center fielded reports of 93 avalanches between March 20 and March 24, with about 33 of those triggered by skiers or snowmobilers. Ten people were caught in nine of those human-caused slides resulting in four partial burials and one injury requiring hospital care. In that same five-day span last year, which was two weeks after a historic avalanche cycle that saw devastating slides, the agency logged 23 avalanches across the state, with nine of them human-triggered.
Phil Powers, the head of Golden’s 24,000-member American Alpine Club, said the “No Visitors” messages coming from rural communities are not threats but a scramble to make up for lost time.
“We did not see great action on the front end of this thing and the sentiment is that as early as possible, which is now, let’s do what we can to stem the tide and that means stay home,” Powers said. “I mean, I bet we can all conjure up ways to do something where it could be hard to transmit this virus to others, but the reality is that that’s too nuanced a message so it’s just about the bottom line: we need to stay home.”
Summit County Sheriff Jamie FitzSimons is working with Clear Creek County and Colorado State Patrol to make sure skiers who visit his county, including Loveland Pass — as they did by the hundreds over the weekend — adhere to distancing rules and parking laws. But he is not pondering a sweeping ban that would prevent people from accessing public lands.
“Look at the CDC guidelines. Look at the governor’s orders. Look at our Summit County Public Health Department orders. We can’t encourage people to get outside during this shutdown and then not give them some place to go,” FitzSimons said. “We are looking for compliance. This is tough on all of us. It’s tough when they shut down all our ski resorts. I am a strong supporter of getting outside and taking care of your mental health as long as you can recreate responsibly with social responsibility.”
Across the nation, municipalities are closing parks and playgrounds to prevent the spread of the virus, while issuing “stay-at-home” orders that allow outdoor activity. The health department orders from Adams, Arapahoe, Boulder, Broomfield, Douglas, Jefferson and Larimer counties on Wednesday — which restricted more than 2 million residents to their homes until April 17 — closed all playgrounds, golf courses, tennis courts, basketball courts and picnic areas but kept public parks open to allow for outdoor activity.
Similarly, Colorado Parks and Wildlife has not closed any of its 41 parks but has shuttered the visitor center at Sylvan Lake and the agency’s Glenwood Springs office. The agency is seeing summer-like traffic at its parks and is working with the Forest Service, BLM and local health departments to manage impacts and urge visitors to recreate regionally, said Dan Gibbs, the executive director of Colorado’s Department of Natural Resources.
Gibbs, who backcountry and cross-country skied near his home last weekend, is seeing more hikers and skiers modifying their behavior — by avoiding crowds at trailheads and maintaining distance between others — and is not making plans to close any more parks.
“These are stressful times for everyone and being outdoors helps rejuvenate people and it’s very important for everyone’s mental health,” Gibbs said. His team is tweaking the Colorado Trail Explorer — or COTREX — app that details all the state’s trails to include local closures and local recommendations to disperse traffic.
Aaron Weiss, the deputy director of the Center for Western Priorities, wants to see the Interior Department and Forest Service working more closely with local officials, as it has as the National Park Service closes a host of national parks, including Rocky Mountain, Teton, Yellowstone, Yosemite and Great Smoky Mountains.
“As we’ve seen with national parks, it may be necessary to close other public lands during the pandemic. The federal government must be responsive so these closures are handled consistently and in a legally defensible way,” Weiss said “These are obviously extraordinary times, and it’s important that public health officials have the tools they need to protect the public from COVID-19.”
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