Evan Hannibal happily handed over his helmet video of the avalanche that triggered below his snowboard and buried a service road above Interstate 70 last March.
He hoped the Colorado Avalanche Information Center would use the video and his first-person account to help educate other skiers and snowboarders. Maybe the lessons he learned from his close-up with an avalanche could help others avoid slides.
So when Summit County prosecutors used the video to anchor a criminal case and seek restitution for an avalanche mitigation device damaged in the March 25 slide, Hannibal argued that the charges could sway other backcountry travelers to stop sharing information with the avalanche center and its investigators.
Colorado Attorney General Phil Weiser, acting an attorney for the state’s avalanche center, last week agreed with Hannibal, arguing that Summit County’s plan to call avalanche center director Ethan Greene as an expert witness “could have an unintended adverse ‘chilling’ impact on the CAIC’s ability to gather important information.”
Weiser’s office filed motions to quash subpoenas issued by the Fifth Judicial District Attorney requiring Greene and avalanche center forecaster Jason Konisberg to testify as expert witnesses in the upcoming jury trial of Hannibal and his backcountry partner Tyler DeWitt.
The two experienced backcountry snowboarders face charges of reckless endangerment and restitution of $168,000 after they reported an avalanche on March 25 that buried a service road above the west portal of the Johnson Eisenhower Memorial Tunnels and destroyed an avalanche mitigation device.
It’s a first-of-its-kind case in several respects.
Backcountry travelers rarely face criminal charges connected to an avalanche in Colorado. Last month Summit County Court Judge Ed Casias rejected the pair’s argument that their rights were violated when the helmet video was turned over to police as evidence of a crime.
And now the top lawyer in Colorado has waded into the fray, asking Casias to reject the prosecution plan to have state employees testify against the snowboarders.
“There is genuine concern by CAIC that if CAIC employees appear as an expert witness in a criminal matter it could adversely impact their ability to gather relevant information from persons involved in an avalanche,” the motion filed by Weiser’s office reads. “The more involved CAIC is in this criminal matter, the more it looks like they are working in coordination with law enforcement, rather than in cooperation with local law enforcement, resulting in a chilling effect to the detriment of CAIC’s mission.”
Weiser also argued that the subpoenas requiring Greene and Konisberg to testify for two days is “unduly burdensome, unreasonable and oppressive,” taking them away from avalanche investigations and forecasting.
“To command that Mr. Greene step away from his diverse responsibilities, during the CAIC’s busiest month of the winter season, is unreasonable and impactful to the important work of this agency generally and Mr. Greene specifically,” reads the motion.
James Moss, an attorney with more than 35 years of experience in recreation law, said the loss of Greene and Konisberg could hinder the prosecution’s case. Without those two testifying as avalanche-science experts, Moss said, the district attorney will be challenged to explain the report compiled by the avalanche center or explain why that avalanche mitigation device was placed in that particular location.
But more importantly, Moss said, is the threat to CAIC’s mission, which involves educating the public on avalanche risks using information gathered from backcountry travelers.
“The motion stated quite clearly that this is going to screw up avalanche research and avalanche reporting in Colorado forever,” said Moss, who has no connection to the case but is urging all backcountry travelers to avoid talking with the CAIC.
“You never report to CAIC from here on out, period,” Moss said.
“And I’m a big supporter of the CAIC. They do phenomenal work. It’s a horrendously difficult job that saves a lot of lives,” he said. “But this case is threatening future lives for a $170,000 piece of equipment and a road that gets buried probably every other week in the winter season.”