Mount Lindsey Closure

[madbuck]

Isn't that what we ALL do when we sign up on-line for a race such as a bike or running race, or when purchase ski passes? Who even reads these waivers in full? We all check the box electronically and call it a day and it appears to keep all parties happy.

Those sort of events generally have insurance, and often it is required by other agencies for permitting. Ski areas also have liability insurance (and if they didn't, presumably they have the scale to price in their risk).

[madbuck]

Given that the state prides itself on tourism, and the economic benefits thereof, the state seemingly has an interest in "solving" this (which is why it is being discussed).
We seem to agree that, at the extremes, costly accidents while recreating on private land are rare. The problem is that actualization of that small chance is devastating for a landowner, and there's little upside for them otherwise to allow free access. The problem with going too far the other is that there is also a small chance of a costly, preventable accident due to some sort of negligence also devastating a person's life. So some legislators balk at removing those protections.

Since we agree that the situations are rare, what we need is a seeded pool of money available for these rare situations. Yes, insurance. It could be some sort of appropriation from money already spent or earmarked for recreation, because the idea is truly you are enable more recreation in the same way that protecting land, building trails, etc. does. Now that still is not really a landowner benefit, so perhaps they sign onto it similar to the way conservation easements exist. A "recreation easement?" And it makes logical policy sense, they are sharing something with the public. So, they could get some sort of (small, reasonable) tax break.

Again, the State has the economic interest. They (we) also have more resources to deal with frivolous claims.

What do you think? Can we solve this with economics?

[mtn_hound]

[/quote]

How would a massive sign posted right along the trail (maybe two signs, one on each sign of the trail) with the liability print and the mention that once the hiker crosses the line between the two signs, they accept the liability waiver legibly printed on the sign and all its implications, legally differ from handing out a signed piece of paper to a representative of the landowner?

[/quote]

"I went a up a different way, I didn't pass the signs"

"It was dark/foggy/snowing, I couldn't see the signs"

"No hablo ingles"

"Some ornery 14ers.com member vandalized the signs before I got there"

etc.

[John Landers]

Given that the state prides itself on tourism, and the economic benefits thereof, the state seemingly has an interest in "solving" this (which is why it is being discussed).
We seem to agree that, at the extremes, costly accidents while recreating on private land are rare. The problem is that actualization of that small chance is devastating for a landowner, and there's little upside for them otherwise to allow free access. The problem with going too far the other is that there is also a small chance of a costly, preventable accident due to some sort of negligence also devastating a person's life. So some legislators balk at removing those protections.

Since we agree that the situations are rare, what we need is a seeded pool of money available for these rare situations. Yes, insurance. It could be some sort of appropriation from money already spent or earmarked for recreation, because the idea is truly you are enable more recreation in the same way that protecting land, building trails, etc. does. Now that still is not really a landowner benefit, so perhaps they sign onto it similar to the way conservation easements exist. A "recreation easement?" And it makes logical policy sense, they are sharing something with the public. So, they could get some sort of (small, reasonable) tax break.

Again, the State has the economic interest. They (we) also have more resources to deal with frivolous claims.

What do you think? Can we solve this with economics?

What is it that we as outdoor recreationists need to be protected from should we be on private property? Aside from some extreme examples of someone shooting at us, rolling rocks downhill deliberately at us, or golf balls flying off a summit,...... What risks do we really face that we need protection from? I believe i am responsible for what I do, the choices I make, and the risk thst comes with it. Recreating in the outdoors I realize rockfall occurs, holds mke break, rocky slopes may provide unstable footing, trees may fall, snow is slippery, avalanches can occur, stream crossing can be dangerous and slippery and drowning is a possibility, weather happens, old buildings and mines can be dangerous, wildfires of many different causes can occur, some animals are dangerous and could hurt / kill me including "domesticated" animals, .........

I want access as much as possible and I don't want private landowners to bear the risk of my recreation.

[amderr22]

Given that the state prides itself on tourism, and the economic benefits thereof, the state seemingly has an interest in "solving" this (which is why it is being discussed).
We seem to agree that, at the extremes, costly accidents while recreating on private land are rare. The problem is that actualization of that small chance is devastating for a landowner, and there's little upside for them otherwise to allow free access. The problem with going too far the other is that there is also a small chance of a costly, preventable accident due to some sort of negligence also devastating a person's life. So some legislators balk at removing those protections.

Since we agree that the situations are rare, what we need is a seeded pool of money available for these rare situations. Yes, insurance. It could be some sort of appropriation from money already spent or earmarked for recreation, because the idea is truly you are enable more recreation in the same way that protecting land, building trails, etc. does. Now that still is not really a landowner benefit, so perhaps they sign onto it similar to the way conservation easements exist. A "recreation easement?" And it makes logical policy sense, they are sharing something with the public. So, they could get some sort of (small, reasonable) tax break.

Again, the State has the economic interest. They (we) also have more resources to deal with frivolous claims.

What do you think? Can we solve this with economics?

I think you are on to something here. One of the things we've already identified we can do differently next time is secure some testimony from the 14er researchers who calculated the economic impact statewide from 14ers - their data, while a bit outdated, is the best available and suggests that the 14ers create between $82 and $100 million in economic activity across the state each year - and that 85% of that is spent within 25 miles of the peaks in mountain towns that rely on that traffic to keep their budget in the black. (https://www.postindependent.com/news/14 ... o-economy/).

If we do this again, I think we'll definitely have some experts testify about these facts and make it clear that there are major economic incentives at play - especially since this law affects much more than just the 14ers. More access for skiing, climbing, hunting, fishing, and camping all increase tourism revenue for the state.

Another strategy in that vein is to go out and find landowners who don't currently grant access - and have them commit to opening up their land - if the bill changes. Being able to quantify the impact - 40,000 acres could be opened - is another way to make tangible the impacts of these liability concerns - and the benefits that would come with a simple update.

An insurance pool system came up when I was researching this issue and potential solutions a few years ago. Most of the landowners were not interested in pursuing it because of the complexity involved. Any bill that involves appropriations, whether it's new revenue or shifting it from elsewhere, is much more controversial than a revenue-neutral bill. Plus some landowners didn't want to remain open to lawsuits, even with insurance. They'd still need to go through the hassle of hiring attorneys, going through depositions and a trial. Most would rather just shut it down than have to put up with that risk - and deal with signing up for a public insurance program. A waiver program was another idea proposed, but quickly got shot down when we started thinking through the practical issues of ensuring 10,000 hikers all have a liability form.

At the end of the day, the coalition of landowners, hiker groups, farmers, ranchers and conservation groups all agreed that this strategy, getting rid of the one exemption that has successfully been used to get around immunity, was the simplest way to get a solution - avoiding the need for a complext new public program - but also requiring us to overcome Trial Lawyer Association opposition.

I firmly believe that the next year will provide a lot of time to build public awareness through social media, word-of-mouth, news articles, and hiker outreach, and also help us build a larger coalition with more influential groups. When we introduce the bill a second time, it'll be with a much broader base of support, and I think we'll have a strong likelihood of success. For one thing, we'll be able to come back and show them, 'this isn't getting better - it's getting worse - and it's clearly going to continue to spiral until you fix it.'

For one thing, I have no idea if the decalibron will close again. But if it does - and it might - it would raise major awareness and make hundreds of hikers - perhaps thousands - angry enough to email their representative, give them a call, request a meeting, or show up at the next hearing. That's what will ultimately overpower the CTLA.

[montanahiker]

Given that the state prides itself on tourism, and the economic benefits thereof, the state seemingly has an interest in "solving" this (which is why it is being discussed).
We seem to agree that, at the extremes, costly accidents while recreating on private land are rare. The problem is that actualization of that small chance is devastating for a landowner, and there's little upside for them otherwise to allow free access. The problem with going too far the other is that there is also a small chance of a costly, preventable accident due to some sort of negligence also devastating a person's life. So some legislators balk at removing those protections.

Since we agree that the situations are rare, what we need is a seeded pool of money available for these rare situations. Yes, insurance. It could be some sort of appropriation from money already spent or earmarked for recreation, because the idea is truly you are enable more recreation in the same way that protecting land, building trails, etc. does. Now that still is not really a landowner benefit, so perhaps they sign onto it similar to the way conservation easements exist. A "recreation easement?" And it makes logical policy sense, they are sharing something with the public. So, they could get some sort of (small, reasonable) tax break.

Again, the State has the economic interest. They (we) also have more resources to deal with frivolous claims.

What do you think? Can we solve this with economics?

What is it that we as outdoor recreationists need to be protected from should we be on private property? Aside from some extreme examples of someone shooting at us, rolling rocks downhill deliberately at us, or golf balls flying off a summit,...... What risks do we really face that we need protection from? I believe i am responsible for what I do, the choices I make, and the risk that comes with it. Recreating in the outdoors I realize rockfall occurs, holds mke break, rocky slopes may provide unstable footing, trees may fall, snow is slippery, avalanches can occur, stream crossing can be dangerous and slippery and drowning is a possibility, weather happens, old buildings and mines can be dangerous, wildfires of many different causes can occur, some animals are dangerous and could hurt / kill me including "domesticated" animals, .........

I want access as much as possible and I don't want private landowners to bear the risk of my recreation.

Well you're not going to fund any second homes for lawyers with that attitude!

[amderr22]

for years, you had to sign and carry a waiver with you to "hike" the summit of Black Mountain, KY's high point (ironic since the "hike" is really just a mile-long road walk). there's no significant danger but since the propery used to be owned by a coal mining company, i guess they were worried maybe a company vehicle would hit somebody walking that road or something and they'd get sued. the state eventually took ownership of the land and now the waiver is no longer needed.
but i wonder why Lindsey or other summit property owners couldn't implement something like that. different state, different laws, i know, but surely some lawyer could craft a simple waiver agreement people could download and fill out that would absolve the property owner of all liability for any injury or accident, and protect the landowner from any legal responsibility.

The owners have considered using liability waivers - but who would print them out and ensure everyone has one? Who enforces the rule and forcibly removes or blocks people who don't want to sign one? Any liability waiver program for a 14er or similarly busy trail would require staff to check that visitors have waivers 24/7 - which would cost thousands of dollars each year. If the owner charged an entrance fee to pay for that, they lose recreational use statute protection. So they decided it wasn't a realistic solution.

For small-scale situations where only a few hikers or climbers visit an area, a waiver works, but not on peaks with tens of thousands of annual visitors.

How would a massive sign posted right along the trail (maybe two signs, one on each sign of the trail) with the liability print and the mention that once the hiker crosses the line between the two signs, they accept the liability waiver legibly printed on the sign and all its implications, legally differ from handing out a signed piece of paper to a representative of the landowner?
Isn't that what we ALL do when we sign up on-line for a race such as a bike or running race, or when purchase ski passes? Who even reads these waivers in full? We all check the box electronically and call it a day and it appears to keep all parties happy.

I'm not in favor of highway-grade-size signs up mountains but if this can help keep a peak open, then sure enough I'm ok with it...

Funny, this kind of came up during the bill hearing. A senator asked the three trial lawyers if putting in a sign that said "There are risks beyond here - enter at your own risk" would count as 'warning and guarding of known dangers", which is the requirement at issue in the law. They all gave vauge answers that said the sign would provide MORE protection - but none of them said 100% that it would provide complete protection.

Another attorney, on the pro-side, pointed out this and mentioned that the law implies that owners must warn users of each specific known danger - a broad statement about general risk and that you accept it likely would not have prevented the Nelson case from ending up as it did, for example, because they could argue that the sign did not provide a specific warning or defense against a known danger: a washed out section of trail was not clearly visible.

The signs are also less effective than liability waivers because by signing a waiver you legally state that you read and agree to the terms and conditions. Even if the sign said something like, 'by walking past this sign you accept all risk," it would be pretty easy to argue in court you never read the sign, which isn't a legal requirement, and thus did not agree to anything. It's one thing to sign a form - because signing something almost always means you are making an agreement. There is no such common view that walking past a sign means you are making a legal agreement - it just wouldn't stand up in court.

That's why when you see signs in stores or restaurants that say things like "By entering and remaining on this premise you waive all rights blah blah blah" they are essentially useless in court - just because it was on a wall doesn't mean you can prove someone saw the language and actually read it.

[mtn_hound]

The owners have considered using liability waivers - but who would print them out and ensure everyone has one? Who enforces the rule and forcibly removes or blocks people who don't want to sign one? Any liability waiver program for a 14er or similarly busy trail would require staff to check that visitors have waivers 24/7 - which would cost thousands of dollars each year. If the owner charged an entrance fee to pay for that, they lose recreational use statute protection. So they decided it wasn't a realistic solution.

For small-scale situations where only a few hikers or climbers visit an area, a waiver works, but not on peaks with tens of thousands of annual visitors.

How would a massive sign posted right along the trail (maybe two signs, one on each sign of the trail) with the liability print and the mention that once the hiker crosses the line between the two signs, they accept the liability waiver legibly printed on the sign and all its implications, legally differ from handing out a signed piece of paper to a representative of the landowner?
Isn't that what we ALL do when we sign up on-line for a race such as a bike or running race, or when purchase ski passes? Who even reads these waivers in full? We all check the box electronically and call it a day and it appears to keep all parties happy.

I'm not in favor of highway-grade-size signs up mountains but if this can help keep a peak open, then sure enough I'm ok with it...

Funny, this kind of came up during the bill hearing. A senator asked the three trial lawyers if putting in a sign that said "There are risks beyond here - enter at your own risk" would count as 'warning and guarding of known dangers", which is the requirement at issue in the law. They all gave vauge answers that said the sign would provide MORE protection - but none of them said 100% that it would provide complete protection.

Another attorney, on the pro-side, pointed out this and mentioned that the law implies that owners must warn users of each specific known danger - a broad statement about general risk and that you accept it likely would not have prevented the Nelson case from ending up as it did, for example, because they could argue that the sign did not provide a specific warning or defense against a known danger: a washed out section of trail was not clearly visible.

The signs are also less effective than liability waivers because by signing a waiver you legally state that you read and agree to the terms and conditions. Even if the sign said something like, 'by walking past this sign you accept all risk," it would be pretty easy to argue in court you never read the sign, which isn't a legal requirement, and thus did not agree to anything. It's one thing to sign a form - because signing something almost always means you are making an agreement. There is no such common view that walking past a sign means you are making a legal agreement - it just wouldn't stand up in court.

That's why when you see signs in stores or restaurants that say things like "By entering and remaining on this premise you waive all rights blah blah blah" they are essentially useless in court - just because it was on a wall doesn't mean you can prove someone saw the language and actually read it.

The vote in the committee was straight party line, both Republicans voted yes and all three Democrats voted no. Do you think that's reflective of how a vote would go if it made it to the floor? If it is, a lot more than just one individual needs to be convinced to switch their position to get a bill like this passed.

[amderr22]

The vote in the committee was a straight party line, both Republicans voted yes and all three Democrats voted no. Do you think that's reflective of how a vote would go if it made it to the floor? If it is, a lot more than just one individual needs to be convinced to switch their position to get a bill like this passed.

The bill had Democratic co-sponsors in the House - and they picked up a Democratic Senator willing to be a co-sponsor, Kevin Priola a few hours before the hearing - they just didn't have time to add him as a co-sponsor. He spoke in support of the bill but wasn't able to convince his colleagues - I expect next time he'll be a co-sponsor from the start.

However, we knew that the Committee Hearing was the bottleneck in the process. Once we moved the bill to the full Assembly and Senate, we knew we would nearly complete GOP support, and there was already some Democratic support - and we would have had about 6 weeks to drum up public support to apply more pressure. If we can make it through the Committee next year, I think we have a very good shot in the full legislature.

Some more bad news: I just got word that the Decalibron owners have indeed decided to close the 14ers; the Colorado Sun is running an article with the news tomorrow morning. Sad, but not shocking, given the response the bill got.

[justiner]

s**t.

[madbuck]

Thanks Alex for the informative updates and advocacy.

[Jorts]

What do you think? Can we solve this with economics?

No. Legislatively with bipartisan support, yes.

Decalibron should create a little more urgency, especially if blatant trespassing becomes ubiquitous this summer.