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Bross Solution: New Summit?

Colorado 14er peak questions and conditions should be posted here. 14er Trip Reports

Good Idea (see first post, below)?

Yes
115
85%
No
21
15%
 
Total votes : 136
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Re: Bross Solution: New Summit?

Postby DeTour » Thu Mar 22, 2012 11:52 am

coloradokevin wrote:Here's part of the section of law I'm referring to:

Colorado Revised Statutes wrote:
...Except as is otherwise provided in section 33-6-116 (1), C.R.S., a person who enters or remains upon unimproved and apparently unused land that is neither fenced nor otherwise enclosed in a manner designed to exclude intruders does so with license and privilege unless notice against trespass is personally communicated to the person by the owner of the land or some other authorized person or unless notice forbidding entry is given by posting with signs at intervals of not more than four hundred forty yards or, if there is a readily identifiable entrance to the land, by posting with signs at such entrance to the private land or the forbidden part of the land.


Also, section 33-6-116(1) simply states that you don't have the right to hunt or fish on such land without permission (I doubt that is a concern to many of us on the summit of Bross):

CRS wrote:
"It is unlawful for any person to enter upon privately owned land or lands under the control of the state board of land commissioners to hunt or take any wildlife by hunting, trapping, or fishing without first obtaining permission from the owner or person in possession of such land."

That statute sounds so reasonable it's hard to believe it still exists. The inevitable next development is for some court to interpret "peak bagging" as hunting ...
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Re: Bross Solution: New Summit?

Postby coloradokevin » Thu Mar 22, 2012 11:55 am

jeremy27 wrote:The CRS section you quoted may apply if you were charged with criminal trespass, it may not insulate you from civil liability.


How so?

If you're legally allowed to cross a piece of land like this one, as is clearly provided for in the Colorado Revised Statutes, and you do so without otherwise trespassing (ex: you don't take anything, damage anything, or hunt/fish anything), then exactly what civil liability are you concerned with? In other words, for what "damages" will the landowner be attempting to receive compensation?

That's not even to mention the fact that a landowner or their agent would need to identify you to sue you. And, you shouldn't be charged with criminal trespass in the first place. That section of law isn't listed as an affirmative defense, it merely describes an action that is NOT trespassing.



DeTour wrote:That statute sounds so reasonable it's hard to believe it still exists. The inevitable next development is for some court to interpret "peak bagging" as hunting ...


Be, veeery, veery quiet... I'm hunting 14'ers! ;)

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Re: Bross Solution: New Summit?

Postby jeremy27 » Thu Mar 22, 2012 12:25 pm

If you were prosecuted by the Park County DA for criminal trespass you may be able to rely on the section of the criminal code you quoted. If the landowner sued you civilly for trespass that section may not insulate you from civil liability. They are two different systems – think of OJ, he was acquitted of the criminal charges but liable civilly. Trespass under the civil system has a different standard entirely, see below:

Hoery v. United States, 64 P.3d 214, 217 (Colo. 2003):
The elements for the tort of trespass are a physical intrusion upon the property of another without the proper permission from the person legally entitled to possession of that property. Public Serv. Co. of Colorado v. Van Wyk, 27 P.3d 377, 389 (Colo.2001); Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 933 (Colo.1997). The intrusion can occur when an actor intentionally enters land possessed by someone else, or when an actor causes something else to enter the land.

"Climbing" Bross without permission probably isn't that important to the local authorities, they need to worry about real crimes. Could it be important enough for the landowner to sue over - who knows.

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Re: Bross Solution: New Summit?

Postby milan » Thu Mar 22, 2012 12:31 pm

Looks like every resident of the USA should be a lawyer to be able to recognize what activity (in other world completely normal and legal) is or is not legal here and what he/she can or can not be sued for.

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Re: Bross Solution: New Summit?

Postby DeucesWild » Thu Mar 22, 2012 12:35 pm

milan wrote:Looks like every resident of the USA should be a lawyer


Just what we need.

Note: I'm not a lawyer, but I play one on the weekends when hiking in potential private property.
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Re: Bross Solution: New Summit?

Postby coloradokevin » Thu Mar 22, 2012 1:37 pm

jeremy27 wrote:If you were prosecuted by the Park County DA for criminal trespass you may be able to rely on the section of the criminal code you quoted. If the landowner sued you civilly for trespass that section may not insulate you from civil liability. They are two different systems – think of OJ, he was acquitted of the criminal charges but liable civilly. Trespass under the civil system has a different standard entirely, see below:

Hoery v. United States, 64 P.3d 214, 217 (Colo. 2003):
The elements for the tort of trespass are a physical intrusion upon the property of another without the proper permission from the person legally entitled to possession of that property. Public Serv. Co. of Colorado v. Van Wyk, 27 P.3d 377, 389 (Colo.2001); Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913, 933 (Colo.1997). The intrusion can occur when an actor intentionally enters land possessed by someone else, or when an actor causes something else to enter the land.

"Climbing" Bross without permission probably isn't that important to the local authorities, they need to worry about real crimes. Could it be important enough for the landowner to sue over - who knows.


I understand the differences between civil and criminal law. What I don't see is the threat of civil action as a legitimate risk in this case.

Lets take a look at the first case you mentioned (Hoery v United States):

Casebriefs.com wrote:Citation. 64 P.3d 214 (Colo. 2003).

Brief Fact Summary.

The United States dumped toxic chemicals at Lowry Air Force base which seeped north seven blocks underneath Plaintiff’s property and into his groundwater. Plaintiff sued and Defendant argued that the statute of limitations barred the claim. The California Supreme Court disagreed under the continuing tort theory.

...

Issue.

Whether the United States’ chemical dumping is a continuing tort such that Plaintiff’s claim continues to accrue and is not barred by the statute of limitations.

...

Held. Yes. For “continuing” intrusions, either by way of trespass or nuisance, each repetition or continuance amounts to another wrong, giving rise to a new cause of action. The practical significance of the continuing tort concept is that for statute of limitations purposes, the claim does not begin to accrue until the tortious conduct has ceased. By contrast, a “permanent” intrusion, often found in the context of irrigation ditches and railways, the trespass or nuisance continues indefinitely absent extraordinary measures, and in fact is encouraged to remain because it benefits the development of the state. Under the permanent intrusion theory, an action to recover for damages would accrue when the lands where first visibly affected. Because the record did not reflect that the continued presence of toxic pollution under Plaintiff’s land would continue indefinitely, and could be, but had not yet been, remediated by the United States, the court declined to apply a permanent theory and instead deemed the violation a continuing one. Accordingly, Plaintiff’s claim was not barred by the statute of limitations.


Honestly, do you think that case has any reasonable similarity to the issue we're examining in this thread?


Your second case (Gerrity Oil & Gas Corp. v. Magness) concerns a dispute between a landowner and the holder of mineral rights on the property. The argument in that case is also very far removed from the debate that is going on in this thread. But, you might note this statement that was found in the decision to the Magness case:

If a privilege to enter the property of another is defined in terms of reasonableness, trespass may only occur when the holder of the privilege acts unreasonably or unnecessarily.   See Magliocco v. Olson, 762 P.2d 681, 685 (Colo.App.1987)


http://caselaw.findlaw.com/co-supreme-court/1213353.html

Notice the similarity in the use of the word "privilege". The section of the Colorado Revised Statutes that I quoted already defines the fact that you are granted a "privilege" under the circumstances described in that statute. Moreover, the Magness case you provided in this thread also states:

Whenever a claimant alleges that a statute, ordinance, or regulation implicitly creates a private right of action, the critical question is whether the legislature intended such a result.


Is it your belief that the legislative intent in CRS 18-4-201(3) was vague or ambiguous in any way, at least as it pertains to the issue of simply walking up to the summit of Mt. Bross?

Also in the Magness case:

Although it is true that reasonableness is often irrelevant to a trespass claim, this is only because in the usual case the property rights of the one asserting the trespass claim are limited only by geographical boundaries.   However, when a surface owner brings a claim of trespass against a mineral rights holder, the surface owner's right to exclude is limited not by the geographical boundaries of the property owned by the surface owner, but by the lessee's right to do what is reasonable and necessary for the development of the mineral rights.   See Salardino, 125 Colo. at 522, 245 P.2d at 464 (“[N]either the owner of the surface nor the owner of the subjacent rights can lawfully destroy, interfere or damage the right of the other.”).   Therefore, a mineral owner or lessee that violates this rule of reasonable surface use commits a trespass.


Again, the issue of trespass that was brought forth in this case is a totally different issue than the one we are examining in the case of hikers accessing Mt. Bross. As the law I provided already explains, an owner has every right to exclude hikers from his/her property. However, if they essentially make no such effort to do so, we are thereby granted privilege to enter that land (with some limitations).

We could pick apart cases for days while trying to make a for-or-against argument here. But, it is quite obvious that the cases you've presented thus far involve an intrusion onto someone's property that is far greater in scope than the mere act of walking up to a summit (in accordance with CRS 18-4-201(3)). Your first case involves dumping hazardous waste. The second case involves a dispute between a mineral extraction company and the surface owner. After reading these cases, I don't believe that either one creates an issue of case law that would create a risk to me, should I go and stand on the summit of Bross tomorrow.

I don't live my life in fear of lawyers. My job in law enforcement is such that I'm sued by dissatisfied criminals from time-to-time, and common sense has prevailed in every case that has ever been brought against me. If you don't want to walk up Bross, don't do it. But, I think there's enough evidence to suggest that you will not be able to get in trouble for doing so under the current situation (wherein the landowner(s) have not signed the property, fenced it, or made efforts to inform each hiker of the trespass).

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Re: Bross Solution: New Summit?

Postby jeremy27 » Thu Mar 22, 2012 1:54 pm

The cases I cited express a generally applicable civil standard. Your activities on Mt. Bross do not have to be similar in any way to the cited cases, they only have to be contrary to the standard. I don’t want people thinking that the sections you cited from Title 18 gives them a free pass from civil liability – they do not.

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Re: Bross Solution: New Summit?

Postby MountainHiker » Thu Mar 22, 2012 2:14 pm

For there to be a successful civil case, doesn’t there have to be actual damages? Even with the silly reputation of our legal system, doesn't it take more than "grief and suffering from the knowledge a hiker crossed my land!"
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Re: Bross Solution: New Summit?

Postby jeremy27 » Thu Mar 22, 2012 2:49 pm

Actual damages are not necessary, a landowner could sue and recover “nominal damages” (usually $1) simply for the principle. Would they go to all that trouble? Who knows? Could they find you and serve you with the complaint? Who knows? Would you end up spending time not hiking and money on a lawyer instead of at REI if you were sued? Yes. Would Title 18 protect you? Likely not. Is Bross worth it? Ask me on Monday. It’s about time I saw what all the fuss is about.

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Re: Bross Solution: New Summit?

Postby painless4u2 » Thu Mar 22, 2012 2:53 pm

But, I think there's enough evidence to suggest that you will not be able to get in trouble for doing so under the current situation (wherein the landowner(s) have not signed the property, fenced it, or made efforts to inform each hiker of the trespass).




I know the actual land owner may not have posted it (perhaps their representative did), but isn't there a rather large "No Trespassing" sign already in place, just below the summit? So, perhaps this argument wouldn't be viable (I'm no lawyer, of course).
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Re: Bross Solution: New Summit?

Postby coloradokevin » Thu Mar 22, 2012 2:59 pm

jeremy27 wrote:Actual damages are not necessary, a landowner could sue and recover “nominal damages” (usually $1) simply for the principle. Would they go to all that trouble? Who knows? Could they find you and serve you with the complaint? Who knows? Would you end up spending time not hiking and money on a lawyer instead of at REI if you were sued? Yes. Would Title 18 protect you? Likely not. Is Bross worth it? Ask me on Monday. It’s about time I saw what all the fuss is about.


While I fully appreciate that you are trying to look at the other side of this issue, I consider the threat of lawsuit from merely hiking 100 yards across this (unknown) person's land to be about as great as the threat of being hit by a meteorite, and somewhat less than my chances of being hit by lightning. Similarly, I consider the odds of them prevailing in court to be equally slim. Personally, I believe that Title 18 will protect you in this case, as the obvious intent of the legislature was to allow for exactly that type of entry onto private property (even in civil court the accused could argue why they felt that they were acting within the scope of the law).

People can and do sue for everything imaginable these days (maybe I'll sue them for needlessly restricting my view of the mountain?). Winning a suit is a different story. The landowner would have no complaint for damages, and no complaint for illegal conduct. Perhaps there has been a case of this type out there somewhere, but I've never heard of it, and I'm more than willing to take the "gamble" in light of the information I found on this issue. The biggest risk I think a hiker faces in this case is the chance that an unhappy landowner would suddenly materialize during their hike (slim chance), and request that they leave the property. If they do so when asked, they won't be charged with trespassing.

Please do report back on Monday! The best part of this whole debate is how much time we've invested in arguing over a few feet of that slag heap we call a mountain :)


painless4u2 wrote:I know the actual land owner may not have posted it (perhaps their representative did), but isn't there a rather large "No Trespassing" sign already in place, just below the summit? So, perhaps this argument wouldn't be viable (I'm no lawyer, of course).


I haven't been up there since this debate started, but it is my understanding that the only sign that exists up there is a sign posted by the USFS that says something like "The Summit of Mt. Bross is Closed". Here are the issues I see with that:

1) It isn't a sign posted by the landowner, or their representative.
2) If the owners haven't been found by the USFS, then the USFS can't be acting on their behalf.
3) The USFS has no venue over private land (that I'm aware of), and can't close a person's property for them.
4) Even if the first three points weren't true, the sign doesn't sound as if it meets the posting requirements of the law.


Again, the whole issue is largely academic in nature. Hundreds if not thousands of people have stood on that summit since the "closure" took place, and I am not aware of a single person being charged with any crime, or sued by any person. As I said at the beginning of this thread, I'm not even opposed to the idea of having the "public summit" that Bill mentioned, since it really takes nothing of substance away from this hike.
Last edited by coloradokevin on Thu Mar 22, 2012 3:06 pm, edited 2 times in total.

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Re: Bross Solution: New Summit?

Postby MtHurd » Thu Mar 22, 2012 3:04 pm

Maybe someone could hack the USGS database and swap the Bross and Grizzly Peak (Sawatch) elevations.

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