Colorado’s mountains are beckoning as fourteener hiking season approaches, but five of the state’s 58 towering 14,000-foot peaks will continue to be off limits this summer due to liability concerns from private landowners who control access to those peaks.
Recreation advocates tried to resolve the issues through legislative action in March while Colorado lawmakers were in session. But their efforts were unsuccessful.
Now a growing alliance of prominent nonprofits is mobilizing to raise the issue again next year, seeking a revision to the Colorado Recreational Use Statute (CRUS). The Fix CRUS Coalition, founded in April, includes the Colorado Fourteeners Initiative, the Colorado Mountain Club, the Boulder Climbing Community, the Access Fund, The Nature Conservancy, the Trust for Public Land, the American Alpine Club, the Outdoor Alliance, People for Bikes and American Whitewater.
They contend the issue is much bigger than access to Colorado’s iconic fourteeners. Mountain biking trails, climbing crags, trail races and even river rafting could all be affected by a $7 million liability judgment against the Air Force Academy that was based on the recreational use statute.
Nicole Budine, conservation policy director for the Colorado Mountain Club, and others in the coalition say that decision — which was upheld by the U.S. Court of Appeals in 2019 — is having a “chilling effect” on private landowners because they don’t feel they are protected against injuries that people may sustain on their property.
“Colorado’s population is growing every day. With increased liability protections, there is the opportunity for landowners to allow access for every type of recreational activity that they feel is appropriate,” Budine said. “That’s the larger goal of revising the recreational use statute — giving the landowners the comfort to allow recreational access to the public for free.”
Mount Lincoln, Mount Democrat and Mount Cameron, all near Fairplay, were closed by landowner John Reiber following the defeat in committee of Senate Bill 23-103, which would have revised language in the recreational use statute to provide more liability protection for landowners.
An adjacent peak, Mount Bross, has been closed since 2005, and together they make up the so-called DeCaLiBron loop, named for the four mountains.
Park County, where the DeCaLiBron is located, has joined the coalition. So has the town of Alma, which is at the foot of the peaks.
Also closed because of liability concerns is Mount Lindsey in the Sangre de Cristo range, east of Alamosa. Another peak in the Sangres, Culebra, is controlled by a private landowner who charges $150 per person to climb it.
“The sad part is that in a state where recreation is so huge, there are lost recreational opportunities, there are lost economic opportunities for communities,” said Lloyd Athearn, executive director of the Colorado Fourteeners Initiative. “You think about the impact to Alma, Fairplay, that portion of Park County, when up to 20,000 people a season aren’t going to climb the DeCaLiBron loop.”
There is concern about yet another fourteener, Mount Sherman, which is located 8 miles south of DeCaLiBron. Most of it is on private land, which is tied up in bankruptcy court.
“Unlike the DeCaLiBron Loop, there has not been any effort by landowners to post, ‘This is closed, don’t go there,’ but if things go the wrong way that could also be off limits to people,” Athearn said. “So think about the impact to communities if all of those mountains — which tend to be, as far as fourteeners go, some of the easiest, most approachable, good introductory peaks — if those are no longer available? What does the state lose?”
One of the founders of the Fix CRUS Coalition is Alex Derr, an avid fourteener climber who analyzed recreational use statutes in every state for his grad school thesis at the University of Colorado-Denver.
“I think it’s a huge opportunity, not just to focus on what we’re losing, but also on what we can gain,” Derr said. “I think the land conversation, or access conversation, so often in Colorado is just on public land, understandably because we have so much of it, but we’re running out.
“I mean, we’re filling up fast,” he continued. “We don’t want to just change the law, we also want to take advantage of the law, spread the word and talk to landowners, educate them, really let them know how strong these protections are. We’re building trust through this coalition with farmers and hunters and hikers, groups that don’t talk ever.”
Coalition members say the recreational use statute can be fixed just by changing a few words. It currently says that landowners are liable for “willful or malicious failure to warn against a known dangerous condition.” The Air Force Academy was found liable in one case because it failed to post warnings on a trail that had washed out, and the plaintiff was severely injured in a cycling crash.
The proposed revision to SB103 would have stricken the word “willful,” meaning the failure to warn would have to be malicious. Now the coalition is working on further tweaking the language regarding the failure of landowners to warn of dangers on their property when they are aware of them.
“We’re actually looking at ‘willful and wanton,’” said Anneliese Steel, who represented the Boulder Climbing Community as a lobbyist against SB103 and has helped Derr organize the coalition. “We’re having our lawyers look at the kind of instances that will be covered under willful, what will be covered under willful and wanton, what will be covered under willful and malicious, because we’re going to have to negotiate with the trial attorneys and find a solution.”
Opponents to SB103, including the Colorado Trial Lawyers Association, argued that the Air Force Academy case turned on a unique set of circumstances and that it represented the only successful lawsuit since the recreational use statute went into effect 26 years ago.
“Our position is that the law has worked to protect landowners and protect the hikers, the bikers, the people who want to use the land,” said Kari Jones Dulin, president-elect of the Colorado Trial Lawyers Association, who testified against the revision. “SB103 was going to get rid of the word ‘willful,’ and that’s essentially intentional.
“We greatly value our beautiful land,” Dulin added. “People flock to this state to be able to hike and bike. The least we can do is have a really minor protection in our law that says you can’t intentionally hurt someone.”
Derr doesn’t see it that way, arguing that the intent of the statute is not to prevent lawsuits but to “incentivize open access.” Those who are advocating for a revision also say Colorado’s trial lawyers wield a lot of influence with statehouse Democrats, who killed the bill in committee. They find that ironic, because the outdoors community would seem to be a Democratic constituency. SB103 was sponsored by Sen. Mark Baisley, a Republican whose district includes the DeCaLiBron loop.
“My goal, maybe even my singular goal with this, is to make this a truly bipartisan effort that is good for Colorado, and it’s good for the state,” Steel said. “This is Colorado’s brand identity. This is who we are as a state, this is how we represent ourselves to the rest of the country. And it is at stake with this case.”
