Outdoor recreation is foundational to our state’s identity. Whether it be hiking, skiing, fishing, rock climbing, hunting, equestrianism, or mountain biking, recreation transcends political parties and unites us as Coloradans. We are incredibly lucky to have access to world-class public lands for recreation; however, the majority of land in Colorado is privately owned and public access is reliant on strong landowner liability protections — protections that should be strengthened with the passage of SB 23-103 by the Colorado General Assembly.
Colorado’s recreational use statute has long helped landowners open their gates to the public by reducing liability for accidents. However, after a well publicized $7.3 million dollar judgment was entered against the Colorado Springs Air Force Academy after a mountain biker was severely injured while riding on a washed out trail, landowners have been nervous about their own liability.
In April of 2021, this liability concern led to the closure of Mount Lincoln and Mount Democrat, two prominent fourteeners that saw more than 30,000 visitors in 2020. Access to these peaks cross privately owned land. This closure was temporary, thanks to the hard work of the Colorado Mountain Club and the Fourteeners Initiative. But these incidents are representative of a larger climate of uncertainty around the strength of Colorado’s recreational use statute. For example Mount Lindsey, another popular fourteener, remains closed to the public.
The James Nelson and Elizabeth Varney v. United States of America case found that the Air Force Academy’s failure to repair the washed out trail represented a “willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm.” The bill making its way through the Assembly, SB 23-103, seeks to narrow this provision to by striking “willful.”
This may sound like a small change, but it has big consequences for public access. The court found liability because the Air Force Academy was notified of the washed out trail two weeks before the accident but failed to put up a sign or repair the trail in a timely manner; this was considered “willful.”
I serve as the Board Chair of the Boulder Climbing Community, an environmental stewardship nonprofit that represents the thousands of rock climbers in the Front Range. We work closely with land managers to repair trails, replace outdated hardware, and protect watersheds and ecosystems from Rocky Mountain National Park to Shelf Road. As a rock climber, I am particularly interested in protecting landowners from liability to “inherent dangers” because a significant amount of climbing is on private land. This includes popular crags such as the Animal World area and Plotinus Wall in Boulder Canyon, the Industrial Wall on Eldorado Mountain, and many crags in the Western end of Clear Creek Canyon. That’s over 250 routes in some of the most popular climbing areas in Colorado.
Many recreational users don’t think about how the trail system they are using is built or maintained. A lot of the time it isn’t public land managers or private landowners, but rather hardworking volunteers who love the sport and give of their time and money to build and maintain trails. This was the case at the Air Force Academy, which was aware of the trail but did not build or maintain it themselves. The trail in question was not even part of the published Air Force Academy trail guide.
At the Boulder Climbing Community, we work with landowners, public and private alike, to preserve access to rock climbing resources. We restore the trails, and we replace the bolts. Our work, and the climbing access it supports, hinges on positive relationships with landowners. We want landowners to be as fully protected from liability as possible in order to encourage the sharing of private land with the public.
SB-23-103 does not change the law for landowners who decide to charge for access; let them be responsible for maintenance. But, if a landowner is generous enough to allow access to their land for free, they should only face liability where their actions are “malicious.” Otherwise, let the public maintain the resource through individual stewardship and through organizations like the Boulder Climbing Community, and let users take responsibility for whether to use those lands.
It isn’t just climbers that have their own nonprofit stewardship groups. Mountain bikers have the International Association of Mountain Bikers and local organizations, hikers have the Colorado Mountain Club, and many other outdoor users have similar stewardship-oriented organizations. There is a vast network of nonprofits and volunteers who love the outdoors and are dedicated to protecting access to outdoor recreation and stewarding the land.
We can take care of the commons, and we can all be responsible for our own activity around “inherent dangers and risks.” SB-23-103 provides an important opportunity to strengthen liability protections in support of opening the outdoor spaces Coloradans cherish to public recreation and stewardship, and it deserves our support.
Anneliese Steel, of Louisville, is the board chair of Boulder Climbing Community, a stewardship non-profit whose mission is to mobilize the local community and partners to care for the environments impacted by climbers, and enrich the outdoor experience for all.
Note: The excerpt of James Nelson and Elizabeth Varney v. United States of America quoted in the fourth paragraph was corrected to say “Willful or malicious,” replacing the erroneous “Willful and malicious” formulation. The correction was made March 6 at 11:15 p.m.