The ramifications of a lawsuit that ended with the U.S. government paying an injured mountain biker several million dollars after a crash on a washed-out trail continue to challenge Colorado fourteener hikers.
And more recreational pursuits could be impacted by the 2019 court decision as private landowners worry about lawsuits filed by people who traverse their land on foot, bike or boat.
This story first appeared in The Outsider, the premium outdoor newsletter by Jason Blevins.
Trinchera Blanca Ranch, which is among the largest in Colorado at almost 180,000 acres, this month erected “No Trespassing” signs on the trail to the popular Mount Lindsey, warning hikers that public access to the San Luis Valley peak is not permitted.
The conservationist owner of Trinchera Blanca — billionaire financier Louis Bacon —put up the signs after consulting with his attorneys about the implications of a 2019 federal court decision that upheld a $7.3 million verdict awarded to a Colorado Springs mountain biker who crashed in a sinkhole on a washed out trail at the U.S. Air Force Academy.
The ranch closed private sections of the trail up Mount Lindsey “as a result of a recent ruling out of the 10th Circuit U.S. Court of Appeals, which limited the scope of the Colorado recreational use statute and increased landowner exposure,” Trinchera Blanca spokesman Cody Wertz said.
Earlier this year, that 2019 decision prodded John Reiber, the owner of mining claims all over Mount Lincoln, Mount Democrat and Mount Bross, to close access to fourteeners on his land. Access to the peaks was restored last month, after the Colorado Fourteeners Initiative and the Colorado Mountain Club worked with Reiber, putting up new signs urging hikers to stick to the trail and to stay out of privately owned mining structures.
Negotiations with the Trinchera Blanca Ranch “are going to be a longer process,” said Lloyd Athearn, the head of the Colorado Fourteeners Initiative, which itself owns private property atop Mount Shavano and worked with its lawyers to craft signs warning hikers of some, but not all, known hazards on that peak. “I think their concerns might be more involved.”
There are at least eight peaks in Colorado where hikers traverse private land to reach summits above 14,000 feet. For years the Colorado Recreational Use Statute — or CRUS — has protected those landowners, granting them immunity from lawsuits if they allow people to recreate on their land for free. The statute has exceptions though, if injured parties can prove a landowner willfully failed to warn or guard recreational visitors about “a known dangerous condition … likely to cause harm.”
The 10th U.S. Circuit Court of Appeals ultimately ruled that the Air Force Academy knew about a washed-out section of the paved bike trail on its property but failed to give proper warning.
Jim Nelson, an engineer living in Colorado Springs, went for a bike ride on Sept. 3, 2008. In a shady section of trail on Air Force Academy property, Nelson pedaled into a damaged part of the trail and suffered serious injuries, including brain damage. Less than two weeks earlier a federal biologist stationed at the academy had taken pictures of the washed-out trail as part of a project to document erosion issues around the academy.
“Had something been done to warn or guard against people riding their bicycles on this designated bike path, Jim’s injuries could have been prevented,” said Nelson’s attorney, David Hersh, with the Burg Simpson law firm.
The appeals court actually affirmed the Colorado Recreational Use Statute protection for landowners, Hersh said, giving them immunity from liability lawsuits, “unless they act willfully in failing to guard or warn of known dangerous conditions that are likely to cause harm.” The legislature, when it crafted the recreational use law, “created a very narrow, high burden on the exception,” Hersh said.
“From my perspective as a trial lawyer, responsible landowners really should have no fear of the 10th Circuit’s plain reading of CRUS and this ‘willful’ exception to the otherwise blanket immunity landowners enjoy,” Hersh said in an email. “Landowners have nearly complete immunity. The exception bar is quite high, in my estimation, and will be very difficult for any claimant to address. A landowner who is concerned about steep cliffs near trails or extant mine works can easily warn, for example.”
Jim Moss, a Denver attorney who specializes in recreation legal issues, says the liability of landowners who open their land to recreational users “is absolutely zilch.”
“The original Colorado Recreational Use Statute is solid as a rock,” Moss said. “The only time that the Nelson case would apply to any other case would involve another mountain biker crashing at a federal military property.”
Still, Athearn is finding landowners wary about possible exposure to lawsuits by recreational users who venture into steep mountain trails or explore dangerous, abandoned mining structures.
By warning visitors with signs that identify Trinchera Blanca Ranch as private property and anyone venturing onto private land as trespassing, the owner has more legal room to avoid lawsuits because trespassers have fewer rights when they get hurt.
Trinchera Blanca Ranch is a preeminent model for wildfire and wildlife management, with one of the state’s largest conservation easements protecting a vast swath of the property from any development. Bacon, the ranch’s owner, is renowned as one of the country’s top conservationists, locking up hundreds of thousands of acres in easements that prevent any roads or structures. Those conservation easements, however, do not allow public access.
Wertz, the ranch spokesman, said the property’s managers and owner “plan to continue discussing the issue” with trail user groups, including the Colorado Fourteeners Initiative.
Athearn himself worked with attorneys in 2016 to limit the liability of the Colorado Fourteeners Initiative when it purchased land that hikers use to reach the summit of Mount Shavano, near Salida. One lawyer on the group’s board agreed there was risk, but helped craft signs that warned hikers of hazards, including things like lightning, avalanches and rockfall. Another lawyer advised against buying the property, warning Athearn that an injured hiker could bankrupt the nonprofit trails group.
“Different landowners with different lawyers with different risk assessments will come to different conclusions,” he said.
Athearn fears the impact of the Nelson decision could soon reach beyond land accessing fourteeners.
Soon landowners with rock climbing crags, singletrack bike trails or navigable rapids could close access, he suggested. Athearn said a remedy may involve Colorado lawmakers going back into the Colorado Recreational Use Statute and adding more protections for landowners who open their land for recreational access.
“There are all sorts of recreation features on private land,” Athearn said. “Legislatures across the country have said there is a public benefit to holding landowners harmless when they let the public recreate for free. How do we get back to where landowners are disincentivized from closing their land so they don’t get sued?”