This story first appeared in The Outsider, the premium outdoor newsletter by Jason Blevins.
In it, he covers the industry from the inside out, plus the fun side of being outdoors in our beautiful state.
When Tim Costello bought 900 acres above Leadville in 2018, he was happy to host Leadville Race Series runners and mountain bikers on the Powerline Trail portion of the racecourse.
The steep section was popular with spectators who flanked the technical trail, cheering on racers as they flew down and then labored upward on the return leg of the races.
Now, as the 40-year-old 100-mile Leadville race series begins, Costello has posted “No Trespassing” signs to remind racers and spectators that the Powerline Trail is on private property and police will be on hand to make sure every spectator on the popular section of racecourse signs an electronic waiver promising not to sue Costello if they get hurt.
It’s the result of several months of negotiations between Costello and Life Time, which owns and operates seven running and mountain bike races and two training camps on remote single track around Leadville.
The company has special insurance indemnifying Costello. All racers will need to sign waivers releasing Costello from liability. So will race organizers, staff, support crew and volunteers. There’s even a booth for spectators to sign waivers before they venture into Costello’s property.
“It’s ridiculous and stupid that it has to be this way,” Costello said. “I’m a big public access fan. I love that the Leadville 100 crosses my property.”
But following a 2019 federal appeals court decision that awarded $7.3 million to a cyclist who crashed on a washed-out trail at the Air Force Academy, Costello is among a growing cohort of landowners who are restricting recreational access to their property over concerns they could be sued by an injured visitor.
“I’m on the hook for liability if anything happens on my land. It’s unconscionable and this situation has put landowners in a completely untenable situation,” Costello said. “All over Colorado you walk through private land to get to 14ers or cool lakes or parks. To hold landowners liable if something happens on their land is ridiculous. But that’s where we are. If there are landowners out there who are not limiting access on their land, it’s because they have no understanding of the recent interpretation of the law and how they are liable.”
In March, landowner John Reiber closed access to three Colorado 14ers outside Alma in the Mosquito Range, saying his attorneys told him he was “rolling the dice by leaving these peaks open.” Nearby Mount Bross has been closed for several years by owners concerned that the old mining structures on the 14er increase their liability for injured hikers.
Reiber’s closure followed a vote by the Colorado Senate Judiciary Committee that killed legislation — Senate Bill 103 — that would have amended the 1977 Colorado Recreational Use Statute to better protect landowners who permit recreational access on their property. That statute protects landowners who allow free recreational access, but there are exceptions. For example, landowners are not protected from lawsuits if an injured person can prove the owner displayed “willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm or death.”
The owner of Mount Lindsey, a 14er in the Sangre de Cristos, also has closed access. In addition to the five privately owned 14ers that are closed to the public, there are dozens of 13ers and many miles of trails on private property that landowners could close. A coalition of nonprofits, local governments, state lawmakers and landowners have joined together in a call to reform the Colorado Recreational Use Statute.
The Fix CRUS Coalition has more than 30 members — including the Access Fund, American Alpine Club, The Nature Conservancy and Ouray Ice Park — and state lawmakers are crafting legislation to introduce in the next legislative session that would reform the statute.
The legislation that failed during the 2023 session amended the statute’s exceptions for landowner liability by removing the term “willful” from the requirement to guard and warn against dangers. It’s likely any new legislation will include a similar focus on that word — willful — with landowners concerned they could be proven to have willful failure to guard if, for example, they did not conduct daily inspections of their property for threats.
“We are seeing more groups and governments joining. They are thrilled we are doing something to strengthen the recreational use statute,” said Anneliese Steel, the group’s chair.
Jim Moss is a recreational law attorney who worked with Costello. He gets calls regularly from landowners worried they could be liable if they don’t close their land.
“The best legal response to the liability concerns to close the land and put up ‘No Trespassing’ signs. If you are the one landowner who gets sued, your life is screwed and it only takes one,” Moss said. “It’s just too dangerous for landowners to allow free recreational access right now.”
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It’s not just lawyers telling landowners to shut down access. Insurance companies are increasingly wary of unfettered public access on private land. Reiber said he struggled to get insurance to cover his alpine peaks outside Alma. Costello said he could not afford to pay the premiums for a multimillion-dollar insurance policy.
Moss said more insurance companies are asking if land is open to recreational use.
“Insurers are saying it’s not worth it anymore,” Moss said. “Fixing the CRUS would take care of 99.9% of these issues.”
Moss and Costello said the Life Time race organizers worked hard to address their concerns. Spectators will be able to sign a waiver on their phones using a QR code. The company included Costello on its umbrella insurance policy. The organizers are working with local police to help enforce the waivers and access restrictions on Costello’s land.
“We are going to have to ask people to do something they have never done,” said race director Tamira Jenlink.
Racer support crews tend to camp around the Powerline Trail. During the Leadville 100 running race, they are there for a day or two. The mountain bike race sees much shorter stays by people supporting the speedier pedaling athletes.
“We need people to understand they are on private property and they are assuming risks,” Jenlink said. “We are making every concerted effort we can to protect Tim. He wants the race to continue in that section and our part is to protect him so we can continue racing there.”
It’s a hassle and an added challenge for spectators, Costello and the Life Time team.
“But I hope everyone understands I want them there but I can’t put myself in legal jeopardy,” Costello said. “Look, this is a bigger issue than my property. This is a problem all over Colorado. The economy of this state is based on recreation and tourism and the outdoor lifestyle. This is a hallmark in Colorado and so much of it depends on the ability to cross private lands to access public lands. You’d think the state would be looking harder at this issue before everything private is closed.”