Since a federal appeals court in 2019 sided with a mountain biker who sued the federal government after crashing on an Air Force Academy trail, recreational access on private property in Colorado has been under threat.
Landowners have closed trails, and even entire mountains, fearing an injured hiker could sue them for millions. The appeals court decision left landowners unsure that protections in the venerable Colorado Recreational Use Statute are enough to allow people to recreate on their land.
There’s an exception in that decades-old statute that didn’t mean a lot before the Air Force Academy decision: Landowners could be liable if an injured recreational user can prove a landowner’s “willful or malicious failure to guard or warn against a known dangerous condition.”
Can a trail be a dangerous condition? How about an old mine? Or a bunch of wet rocks next to rapids? How many signs are needed to warn visitors? How often do landowners need to check those signs?
A Colorado lawmaker is stepping up with a plan to amend the Colorado Recreational Use Statute with added protections for landowners whose attorneys are telling them to lock the gates or get ready to be sued.
And this time, maybe, recreational access won’t be such a political football, with partisan squabbling delaying a possible fix for a problem haunting landowners as growing numbers of visitors flock to Colorado outdoors.
“I have a high degree of confidence that this will enjoy widespread support from both chambers and both sides of the aisle,” said state Sen. Mark Baisley, a Republican from Woodland Park who is crafting a bill to update recreational access laws with increased protections for landowners who allow recreational visitors to traverse their property. “I really think everyone is pulling in the same direction here.”
Baisley has been meeting with landowners who host recreational visitors and are worried about liability. Like John Reiber, who in 2021 closed access to mining claims he owns on popular 14ers Mount Lincoln, Mount Democrat and Mount Bross.
Reiber has since restored access, thanks to support from trail advocacy groups like the Colorado Mountain Club and the Colorado Fourteeners Initiative and the Town of Alma. But he still worries. What if someone removes a sign warning visitors about the dangers of the old mines on his property? His lawyers and insurers are worried, too.
“A lot of carriers won’t even touch me,” Reiber said. “They want nothing to do with property that can be accessed by the public. I mean I really want people to enjoy the 14ers … just how can we make it work for the recreating public and still provide landowners with a little better protection so we don’t have to go out and buy all this additional, incredibly expensive insurance? I’m hoping we can find common ground here.”
David Hersh was the lawyer who represented the cyclist, Jim Nelson, who sued the Air Force Academy after he was injured on a washed-out section of trail in 2008. The 10th U.S. Circuit Court of Appeals in 2019 ruled the Air Force Academy knew about the damaged trail and failed to give proper warning, affirming a $7.3 million judgment for the cyclist.
Hersh said the decision supported the Colorado Recreational Use Statute protection for landowners unless they act willfully or maliciously in failing to guard or warn of known hazards that are likely to cause harm. He calls the willful and malicious exception for landowners “really very narrow.”
“And we have a whole bunch of case law that talks about what constitutes willful or malicious … so Colorado landowners have real good guidance on what is within that exception,” said Hersh, an attorney with the Burg Simpson law firm. “The Nelson case fell pretty far out on that willful spectrum but there are many cases where the court said it was not willful. If we go rewrite the act we will have a blank slate and we will have to wait 20 years for the law to develop to figure out what the new provisions really mean.”
Colorado lawmakers in the late 1970s crafted protections for Colorado ski areas that made it very difficult for skiers to sue a resort operator. The Colorado Ski Safety Act, which outlines the responsibilities of both resort operators and skiers, grew from concerns over skyrocketing insurance costs paid by ski areas that could face business-destroying lawsuits.
The Ski Safety Act has been amended several times as resorts identify new issues and skier behavior changes. Recreational access laws should be updated, too, said Lloyd Athearn, the director of the Colorado Fourteeners Initiative.
His outfit is more than a group advocating for sustainable trails on the state’s busiest peaks. It owns a bunch of mining claims flanking Mount Shavano and its own lawyers worked hard to script warning signs that help hikers recognize the dangers on the trail.
“It’s all about finding a good balance,” said Athearn, who is working with Baisley and landowners to help craft the new legislation. “How do we adequately inform the recreating public of the hazards involved? Landowners can’t be up there at 14,000 feet every single day of the year so let’s fine tune our obligation to inform. Landowners should feel protected when people go through their land to access some of the state’s recreational attractions. We all benefit when the landowner is protected.”
Kendall Chastain, the conservation manager for the Colorado Mountain Club who works with landowners to allow recreational access, hopes the legislation will spur more property owners to open their acres to the public. She said there may be owners out there who have never considered welcoming visitors.
“There’s a woman we have been working with who has a little pond on her property and she told us if this goes through she will have much less concern with people visiting her pond and crossing through her property to reach public lands,” she said. “I bet there are more people out there like her.”
One sticking point in the current recreational use statute is that it lumps almost all forms of recreation into the same group. That means landowners have limited ability to restrict certain types of recreation that may not work on their property, like, say, motorized users or people panning for gold. Proposed changes in the law would give property owners greater leeway in choosing which type of recreation best fits on their land, Chastain said.
“It does not make sense for some of these properties that everything goes,” she said.
There are many little discrepancies that are being addressed in the proposed legislative adjustment to the recreational use statute.
“There are a lot more voices being heard and concerns are being expressed more clearly and more urgently than in years past,” Chastain said. “We have a lot of strong support for this across many communities.”
In 2019, legislation proposed by then-Rep. Perry Will, a Republican from New Castle, and then-Rep. Donald Valdez, a La Jara Democrat, would have removed the willful and malicious exception from the state’s recreational use statute. It died in the House Judiciary Committee mere days after it was introduced.
Most advocates for reform of the recreational use statute expect trial lawyers to lobby against any changes. Colorado state Sen. Dylan Roberts, an Avon Democrat, said amending the statute “would definitely still be a very controversial topic at the legislature.”
Baisley said he’s held meetings with local communities, trail groups and landowners and sees growing consensus. He expects many lawmakers will step forward to co-sponsor his bill.
“We look at each other and wonder who will oppose this,” he said. “And all we see are the trial lawyers. I understand this may be a source of business for them and we will consider their objections. But I’m feeling hopeful. This is the bill I’m most proud of right now.”
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