The tens of thousands of climbers who scale steep towers of handmade ice in the Ouray Ice Park each winter reflect the gold standard partnership for visitors on private land doing dangerous stuff.
The one-of-a-kind agreements among a city, landowner and nonprofit in the park’s Uncompahgre River Gorge have wrestled with water rights, collapsing canyons, giant festivals and hordes of climbers for nearly 30 years – all of it swirling around the country’s oldest hydropower plant, which is governed by the Federal Regulatory Energy Commission.
But the latest challenge with acute landowner concerns over liability and the suddenly wobbly Colorado Recreational Use Statute – or CRUS, which everyone says like “cruss” – has shaken the cooperative agreement at the Ouray Ice Park.
“The community of Ouray, the city and a private landowner and a recreational nonprofit are trying to work together to solve this liability problem,” said Peter O’Neil, executive director of Ouray Ice Park Inc., which manages more than 200 human-made routes in the Uncompahgre River Gorge. “We don’t think CRUS is working and we are at risk. Right now, we do not feel protected by CRUS.”
Every winter an army of ice-farming volunteers and climbers carefully sculpt more than 200 ice climbs, trickling 200,000 gallons of water a night down craggy limestone into the mineral-tainted Uncompahgre River. The precipitous frozen fangs lure nearly 25,000 climbers a year who fuel a vibrant winter economy in the city that calls itself the Switzerland of America.
It all started in the early 1990s when adventurous ice climbers asked Eric Jacobson if they could traverse his land in the dark gorge to climb. Jacobson owns the Ouray Hydroelectric Power Plant, which started sparking electricity from water-spun wheels in 1886, making it one of the oldest operating power plants in the world.
Since he purchased the power plant in 1992, Jacobson has leased about 60 acres of his land to the city for a dollar a year. The Federal Energy Regulatory Commission rules allow him to host recreational visitors on either side of the 6,000-foot penstock that delivers water to his turbines, but only if that access is free. The CRUS also protects landowners who do not charge for recreation on their land.
Several years ago, the city wondered about charging climbers to enter the park and Jacobson made it clear his liability concerns would grow if there was a cost of entry. (Both the city and Ouray County own land in the park as well.) The city, Jacobson and the Ouray Ice Park nonprofit eventually hammered out a deal that became a national model for regulating free-of-charge recreation in heavily trafficked private lands.
Jacobson is now among a growing list of landowners worried they could be sued by recreating visitors. Their concerns stem from a 2019 federal court decision that awarded a cyclist $7.3 million after he was injured on a damaged bike trail at the Air Force Academy in 2008. That case highlighted an exception in the CRUS that limits landowner protection if an injured visitor can prove the landowner displayed a “willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm.”
There is very little inside the Ouray Ice Park that is not dangerous and likely to cause harm. Climbers have died in the park. And Jacobson is “very concerned,” O’Neil said.
Since the U.S. Court of Appeals decision in the Air Force Academy case, landowners have closed 14ers. Others have closed trails. Some are requiring all visitors to sign liability waivers using their phones to scan QR codes. A landowner who has closed access to the Decalibron Loop trail accessing several 14ers in the Mosquito Range above Alma just sold a portion of his property to The Conservation Fund, citing liability challenges on the peaks.
This week, Ouray City Council voted to extend a five-year management agreement with Jacobson for one more year, while the city and the landowner hammer out the possible sale of some of his property.
Ouray Councilor John Wood said the concerns with protections offered under the recreational use statute “played a big role in clogging up this process.”
“It was a tough road for everyone involved,” Ouray Mayor Ethan Funk said after the council approved the one-year extension.
Jacobson declined to discuss the details of a possible new arrangement at the Ouray Ice Park until the deal is finalized. Complicating the landscape in the icy Uncompahgre River Gorge is a requirement by the Federal Energy Regulatory Commission that all power plant licensees retain control of licensed properties.
Last year, the commission issued a $600,000 fine to a small hydropower operator in upstate New York for violating its federal hydroelectric license “by failing to retain possession of all property.”
Jacobson does not have any liability insurance. Neither does the nonprofit that operates the park. A permanent solution for the ice park – solving both liability concerns and federal regulatory issues – could be announced in a couple weeks, O’Neil said. Everyone knows this is a critical mission, he said.
“If we had to close the park, wow, what a blow,” he said.
Economic vitality of small towns at risk
A Kent State University economics professor last year studied the economic impact of the ice park’s 20,600 visiting climbers and 4,000 event spectators in the winter of 2021-22. In the summer, another 20,000 visitors traverse the Ouray Via Ferrata on city-owned land in the Uncompahgre River Gorge, but access to the gorge involves crossing Jacobson’s land.
Winter visitors spent $13 million in Ouray, which stirred an overall economic impact of $17.8 million when the trickling effect of visitor spending was estimated. The spending by ice park climbers and visitors supported 184 full-time jobs and $6.4 million in local wages.
But a permanent solution for Ouray will not likely work elsewhere. Same for the conservation sale on the Decalibron Loop and the QR-coded liability waivers for all participants and spectators at the Leadville 100 running race.
These one-off fixes all stem from landowners getting skittish about their liability after the 2019 appellate court decision.
Ouray “was a shining example” of how things could work, said Anneliese Steel, who is heading a group called the Fix CRUS Coalition, which is lobbying for legislation to adjust the venerable statute to better protect landowners.
“But unfortunately, like many other landowners concerned with the fragility of the CRUS, this kind of partnership and agreement will not be possible,” Steel said. “We see reform as the only viable answer here. All these creative solutions are working in individual instances, but they highlight the greater need for long term protections for landowners.”
Earlier this year Sen. Mark Baisley, a Republican from Woodland Park, proposed legislation that removed the “willful or malicious failure to guard” exception from the CRUS. His Senate Bill 103 amendment to the CRUS was killed by the Colorado Senate Judiciary Committee in March.
The Fix CRUS Coalition – now backed by 39 nonprofits, businesses and local governments including Alma and Fairplay, where thousands of 14er hikers support summer businesses – is working with lawmakers again to amend the statute. Steel is hoping the city of Ouray joins the coalition, which includes the Ouray Ice Park.
Colorado State Sen. Dylan Roberts, a Democrat from Avon who voted against the CRUS amendment in March as a member of the Senate Judiciary Committee, will support CRUS-adjusting legislation this year.
Roberts has spent the past several months talking with landowners, business owners, residents, trial lawyers and the Fix CRUS Coalition about how to adjust wording in the statute to address landowner liability concerns.
“We all agree there is the need to do something to fix this situation,” said Roberts, who will co-sponsor CRUS-amending legislation next year with Baisley.
The previous legislation was “overly broad and not precise enough,” Roberts said.
Roberts said negotiations with recreation groups, landowners and lawyers are ongoing and focused on the words “willful and malicious failure to guard” in the CRUS.
“A small change in a few words can make a huge difference and we are being very careful to find the right balance,” Roberts said. “We are trying to find the right wording that alleviates the concerns of landowners and makes sure people are protected when they recreate outdoors.”
The Colorado Trial Lawyers Association testified in March against amending the recreational use statute. The association argued that one case in the 26-year history of the statute proves the law is working to protect Colorado residents and landowners. The group’s position has not changed, said Kari Jones Dulin, an attorney who serves as president of the trial lawyers association
The case of the Air Force Academy was “egregious,” Dulin said. The academy knew of the dangerous sinkhole in the trail and had photographed the damage but failed to install signs warning of the danger ahead. The cyclist suffered “life-altering injuries” and it’s the only time the CRUS has been successfully challenged, Dulin said.
“That shows that the law in place works,” she said. “It works for landowners. It works for Coloradans. It works for everybody.”
The group will oppose legislation that changes CRUS and the “extremely high standard” that requires injured parties to prove a willful and malicious failure to guard, she said.
“We cannot create laws because of fear. That’s when you do real harm to Coloradans,” Dulin said. “You have to enact legislation based on rational thought and common sense and to have a knee-jerk reaction to create legislation purely based in fear … creates a bad legacy and a bad law.”
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