Discussion extending from Bear Creek/Telluride avalanche death and legal responsibilities therein

[tball]

Do we know this as a fact? And in the legal sense, does it matter?

I think it probably matters on the criminal side in showing recklessness. Maybe not so much, or necessary, on the civil side assuming the statutory negligence holds.

As for knowing it for a fact, no not for certain. But there is good reason to believe someone from the Forest Service would testify there is no legal access from the ski area to this slope because of not just the avalanche danger to someone on the slope but also to those on the busy trail below. There are also decades of meetings where discussion on where to place the backcountry access gates took place.

Here's a good article with background on opening the backcountry gates:
https://www.telluridenews.com/the_watch/news/article_422633a3-1285-5a75-9465-b78747ffb1e9.html

And another article with more context that mentions this slope and has a quote from the Forest Service supervisor:

Still, it is not uncommon to see tracks leading down Telluride’s steep, deep and permanently closed Tempter Chute, where several skiers have died in avalanches over the years.

“One of the most important things we try to tell skiers is to not cut ropes,” says U.S. Forest Service ranger Scott Spielman, who supervises the Telluride ski area. “There is so much avalanche-prone terrain in the backcountry surrounding the ski area. The ropes are there for a very good reason.”

Most ski resorts engulfed by public lands require that all egress from the ski area be done through established backcountry gates. Leaving through a roped boundary carries the same penalty under the state’s Ski Safety Act as cutting an internal rope that isolates either permanently closed sections or areas where the slope isn’t ready for skiers. But skiers who leave the boundary are rarely pursued by patrollers. Those who cut ropes inside the ski area tend to be easily spotted and captured.
https://www.denverpost.com/2009/01/19/crossing-the-line-youll-pay-for-it/​

 

[HardDaysNight]

Colorado’s SSA does not pertain and has no application to areas or conduct outside of ski area boundaries.

“The general assembly hereby finds and declares that it is in the interest of the state of Colorado to establish reasonable safety standards for the operation of ski areas and for the skiers using them. Realizing the dangers that inhere in the sport of skiing, regardless of any and all reasonable safety measures which can be employed, the purpose of this article is to supplement the passenger tramway safety provisions of part 7 of article 5 of title 25, C.R.S.; to further define the legal responsibilities of ski area operators and their agents and employees; to define the responsibilities of skiers using such ski areas; and to define the rights and liabilities existing between the skier and the ski area operator and between skiers.”

and

“6) "Ski area" means all ski slopes or trails and all other places within the ski area boundary, marked in accordance with section 33-44-107 (6), under the control of a ski area operator and administered as a single enterprise within this state.”

It’s clear that “adjoining skiable terrain” does not include terrain outside the ski area but areas within the ski area not defined as slopes. We know this because the entire ambit of the SSA is limited to ski areas by definition and, of course, because of the absurd result the alternative leads to.

Nonetheless @tball’s position is not without hope! We don’t have to rely on the SSA to find culpability on the part of the boarders (leaving aside their obvious breach of the SSA in ducking the rope). Common law contains all the precepts necessary to analyze this case. Nor does the argument that it wasn’t the ducking of the rope but the avalanche that caused the death avail. This is sophistry, akin to claiming that it wasn’t the running of the red light that caused the injury but the subsequent collision!

 

[dbostedo]

Colorado’s SSA does not pertain and has no application to areas or conduct outside of ski area boundaries.

“The general assembly hereby finds and declares that it is in the interest of the state of Colorado to establish reasonable safety standards for the operation of ski areas and for the skiers using them. Realizing the dangers that inhere in the sport of skiing, regardless of any and all reasonable safety measures which can be employed, the purpose of this article is to supplement the passenger tramway safety provisions of part 7 of article 5 of title 25, C.R.S.; to further define the legal responsibilities of ski area operators and their agents and employees; to define the responsibilities of skiers using such ski areas; and to define the rights and liabilities existing between the skier and the ski area operator and between skiers.”

and

“6) "Ski area" means all ski slopes or trails and all other places within the ski area boundary, marked in accordance with section 33-44-107 (6), under the control of a ski area operator and administered as a single enterprise within this state.”

It’s clear that “adjoining skiable terrain” does not include terrain outside the ski area but areas within the ski area not defined as slopes. We know this because the entire ambit of the SSA is limited to ski areas by definition and, of course, because of the absurd result the alternative leads to.

Nonetheless @tball’s position is not without hope! We don’t have to rely on the SSA to find culpability on the part of the boarders (leaving aside their obvious breach of the SSA in ducking the rope). Common law contains all the precepts necessary to analyze this case. Nor does the argument that it wasn’t the ducking of the rope but the avalanche that caused the death avail. This is sophistry, akin to claiming that it wasn’t the running of the red light that caused the injury but the subsequent collision!

I agree, and I think you're correct on the "adjoining skiable terrain" piece... but there is one spot in the SSA where they deal with some relationship between the ski area, and land outside the ski area.

33-44-107, paragraph 6 :

"(6) The ski area operator shall mark its ski area boundaries in a fashion readily visible to skiers under conditions of ordinary visibility. Where the owner of land adjoining a ski area closes all or part of his land and so advises the ski area operator, such portions of the boundary shall be signed as required by paragraph (e) of subsection (2) of this section. This requirement shall not apply in heavily wooded areas or other nonskiable terrain."

Paragraph (e) of subsection (2) reads :

"(e) Closed trails or slopes, designated by an octagonal-shaped sign with a red border around a white interior containing a black figure in the shape of a skier with a black band running diagonally across the sign from the upper right-hand side to the lower left-hand side and with the word "Closed" printed beneath the emblem."

We're I investigating this case, the question I would have is : Did the owner of the adjoining land notify Telluride that the chute was closed?

If so, then the signage posted earlier in the thread would have been posted by T'ride based on that information, and that chute was closed regardless of how it was entered. It's not Telluride closing land outside its boundary, which I agree would be absurd (and some earlier posts seemed to imply was possible - I don't think it is). Instead, it would be T'ride simply marking land that they have been informed is closed by the land's owner, as they are required to do.

If that's the case, then anyone skiing or riding that chute was violating the closure by the owner,.regardless of how they got there. So IMO, you have two separate violations - 1) ducking a rope at a ski area, 2) skiing/riding in closed back-country terrain. I'm not sure what laws cover #2.

 

[HardDaysNight]

^^^Yes!

 

[Seldomski]

My interpretation is that the snow on the slope is regarded (legally) as a force of nature and beyond the control or direct responsibility of anyone that is on it. Ducking the rope is regarded as trespassing and a separate thing.

If you trespass in bear country, wake up a bear, then that bear wanders off and kills someone, are you legally responsible? If you entered that area 'legally' and wake up the bear, is the consequence to you different somehow? I think that is the general legal logic concerning avalanches. Is the bear more likely to cause harm if you enter legally vs. illegally? I don't think the bear cares.

Now if you see someone else in the forest, then intentionally poke the bear in the eye and sprint off toward the other person, that's different. In this case, the boarders did not know anyone else was there and made a best effort of determining if the slide had buried someone. So they did not consider the presence of others when assuming the the risk of skiing on the snowpack in those conditions.

Perhaps a flaw in the SSA as written is the difficulty in actually enforcing the rule for closures outside the ski area. How do you practically catch people in the act of crossing the boundary? Who pays for that enforcement? If the fine is high enough, would it make it worthwhile? Maybe there should be some closed areas that carry a much higher penalty for entry. More signs required to designate it, and still not bullet proof solution.

 

[dbostedo]

Perhaps a flaw in the SSA as written is the difficulty in actually enforcing the rule for closures outside the ski area.

The only rule there is for the ski area to post the appropriate sign at the boundary when they are informed by the land owner that it is closed to skiing. Nothing else other than the sign posting needs to be enforced. The SSA doesn't control anything else.

 

[Seldomski]

The only rule there is for the ski area to post the appropriate sign at the boundary when they are informed by the land owner that it is closed to skiing. Nothing else other than the sign posting needs to be enforced. The SSA doesn't control anything else.

Agreed. The way I read it, the snowboarders are subject to a fine up to $1000 for crossing the boundary and skiing that slope. I guess even if you wrote them a ticket as they crossed the rope, the wrong has already been addressed. They could then proceed down that slope. There isn't anything in the SSA about detaining or arresting someone. There isn't anything (legal) preventing them from continuing down, is there?

 

[dbostedo]

There isn't anything (legal) preventing them from continuing down, is there?

If the out-of-bounds terrain isn't closed, that's true. But in this case, it appears, based on the sign that Telluride posted, that this terrain WAS closed. So proceeding down after ducking the rope is also illegal. Not because of the rope ducking, but because the terrain was closed by the owner. (I.e. if you hiked up the chute, and skied down, that would also have been illegal.)

 

[tball]

I agree, and I think you're correct on the "adjoining skiable terrain" piece... but there is one spot in the SSA where they deal with some relationship between the ski area, and land outside the ski area.

33-44-107, paragraph 6 :

"(6) The ski area operator shall mark its ski area boundaries in a fashion readily visible to skiers under conditions of ordinary visibility. Where the owner of land adjoining a ski area closes all or part of his land and so advises the ski area operator, such portions of the boundary shall be signed as required by paragraph (e) of subsection (2) of this section. This requirement shall not apply in heavily wooded areas or other nonskiable terrain."

Paragraph (e) of subsection (2) reads :

"(e) Closed trails or slopes, designated by an octagonal-shaped sign with a red border around a white interior containing a black figure in the shape of a skier with a black band running diagonally across the sign from the upper right-hand side to the lower left-hand side and with the word "Closed" printed beneath the emblem."

We're I investigating this case, the question I would have is : Did the owner of the adjoining land notify Telluride that the chute was closed?

If so, then the signage posted earlier in the thread would have been posted by T'ride based on that information, and that chute was closed regardless of how it was entered. It's not Telluride closing land outside its boundary, which I agree would be absurd (and some earlier posts seemed to imply was possible - I don't think it is). Instead, it would be T'ride simply marking land that they have been informed is closed by the land's owner, as they are required to do.

If that's the case, then anyone skiing or riding that chute was violating the closure by the owner,.regardless of how they got there. So IMO, you have two separate violations - 1) ducking a rope at a ski area, 2) skiing/riding in closed back-country terrain. I'm not sure what laws cover #2.

Thanks for saving me from my next long post! I didn't notice the boundary section of the SSA that specifically addresses the closing of terrain outside the ski area until late the other night. I should have kept reading (actually searching for "boundary" is how I found it).

As I read the law it was very carefully crafted to allow the prosecution of poachers on closed slopes and trails outside the ski area (again not a lawyer).

This isn't absurd. You either crossed a closure to get there or not. This is also consistent on how I've seen the law applied along Colorado ski area boundaries for over 30 years.

And to answer your question, I think it's safe to assume the adjoining landowners asked T-ride to close the boundary.

The Forest Service decided where to open the boundary with the backcountry access gates. The inverse is therefore also true in that they decided to close the boundary where they choose not to locate a backcountry gate, like where the snowboarders ducked the rope.

The private property owners along the boundary have been aggravated by trespassing skiers for years and their potential liability. I think it's also safe to assume they have formally notified the ski area to close the boundary, if for no other reason to limit their liability.

 

[tball]

If the out-of-bounds terrain isn't closed, that's true. But in this case, it appears, based on the sign that Telluride posted, that this terrain WAS closed. So proceeding down after ducking the rope is also illegal. Not because of the rope ducking, but because the terrain was closed by the owner. (I.e. if you hiked up the chute, and skied down, that would also have been illegal.)

That's not my understanding of how it works. It would be legal to ski this slope if you hiked up. It's closed from the ski area but not from below (unless it's signed by the Forest Service that we have not heard about).

There are lots of examples of where it's legal to be on either side of a ski area boundary but not legal to cross the boundary. The boundary is actually closed in both directions, in and out of the ski area.

It matters how you got to where you are on a slope. The slopes inside of a closed ski area boundary are closed to backcountry users and they will face the same penalties if they cross the boundary into the ski area. The same way these snowboarders were breaking the law on that entire slope because they exited the ski area past a closure.

I know it seems odd, but that's my long-standing understanding of how the law works and always has at most Colorado ski areas. The Aspen areas are one exception with their open boundaries. Most others don't want you crossing back into the area if you leave a backcountry gate, nor exiting the area anywhere but out a backcountry gate.

 

[dbostedo]

As I read it the legislation was very carefully crafted to allow the prosecution of poachers on closed slopes and trails outside the ski area (again not a lawyer). It's not absurd. You either crossed a closure to get there or not. This is also consistent on how I've seen the law applied along Colorado ski area boundaries for over 30 years.

That's not absurd. Earlier, it seemed to be implied that Telluride could decide to close a slope outside their boundary by posting a sign. That shouldn't be possible, and would be absurd.

And to answer your question, I think it's safe to assume the adjoining landowners asked T-ride to close the boundary.

Agreed. One clarification though... The adjoining landowner wouldn't ask Telluride to close their boundary. They would let Telluride know that the adjoining land was closed. Telluride then, as required by the SSA, put up a sign. That's not just a semantic difference - it's a difference in who actually decides to close the slope, and having the owner do it avoids the absurdity mentioned above.

That's not my understanding of how it works. It would be legal to ski this slope if you hiked up. It's closed from the ski area but not from below (unless it's signed by the Forest Service that we have not heard about).

I would think that that's not the intent of the SSA, but that could be how it works. Telluride should only have posted that sign if the land adjoining the ski area at that point was closed by the land owner. What does "closed" mean in this case? I guess it could mean that the land owner just doesn't want people entering from the ski area, and could claim that just the a few feet of land near the ski area boundary was closed. But that's already accomplished by a closed boundary. The extra "closed" sign rule would seem to imply that the slope or run outside the ski area was closed. That would make more sense to me. Otherwise, why do you need the sign?

 

[tball]

I would think that that's not the intent of the SSA, but that could be how it works. Telluride should only have posted that sign if the land adjoining the ski area at that point was closed by the land owner. What does "closed" mean in this case? I guess it could mean that the land owner just doesn't want people entering from the ski area, and could claim that just the a few feet of land near the ski area boundary was closed. But that's already accomplished by a closed boundary. The extra "closed" sign rule would seem to imply that the slope or run outside the ski area was closed. That would make more sense to me. Otherwise, why do you need the sign?

I don't think it's that complicated. A closed sign is a closed sign. It doesn't matter how, why, or by whose authority a slope was closed. If you violate a closed sign you are illegally skiing the slope on the other side.

Colorado ski areas are mostly on Forest Service land. They operate under permit from the Forest Service and work closely to define the boundaries and how the ski area manages its boundries, witness the various backcountry access gates placed by the Forest Service. Beyond that, I believe ski areas can manage their boundaries as they see fit, and if they need a rubber stamp from the Forest Service to make it legal, they can easily get one.

Here's the quote again from the Forest Service administrator of Grand Targhee for context:

Kurt Kluegel, U.S. Forest Service special use permit administrator, said the law is upheld by his agency.

“It doesn’t matter if skiers are accessing wilderness or another part of the Caribou-Targhee National Forrest or private land,” Kluegel said. “If Grand Targhee has posted a closure, we support that. It doesn’t mean the forest is closed. If people still want to access the backcountry behind Targhee, it just means they’ve got a lot of skinning to do.”
http://www.tetonat.com/2010/10/16/grand-targhee-resort-adds-backcountry-access-gate/

Note the confirmation that a posted closure from a ski area doesn't mean that slope is closed if accessed another way.

 

[tball]

So if a truck is speeding down a mountain road, causing their brakes to go out, then kills a bunch of people, the driver will be charged with more than just speeding. Right?

 

[dbostedo]

I don't think it's that complicated.

But it is! There's lot of nuance, and definitions we can't be sure about. These two statements seem to directly contradict each other.

A closed sign is a closed sign. It doesn't matter how, why, or by whose authority a slope was closed. If you violate a closed sign you are illegally skiing the slope on the other side.

Note the confirmation that a posted closure from a ski area doesn't mean that slope is closed if accessed another way.

So to be very specific, what I think the big unknown still is, is this.

The land owner of the chute in question here told Telluride that some or all of their land at the chute was closed. That led Telluride to post the closed sign. So what the chute itself closed to anyone who hiked up, or not?

I contend that if the chute itself wasn't closed to those who hiked up it, then the land owner shouldn't have told Telluride anything, and there wouldn't have been a sign. That would make the most sense to me the way I read the SSA. But I'm acknowledging that it might not work that way - which just serves to confuse people.

 

[tball]

So to be very specific, what I think the big unknown still is, is this.

The land owner of the chute in question here told Telluride that some or all of their land at the chute was closed. That led Telluride to post the closed sign. So what the chute itself closed to anyone who hiked up, or not?

I contend that if the chute itself wasn't closed to those who hiked up it, then the land owner shouldn't have told Telluride anything, and there wouldn't have been a sign. That would make the most sense to me the way I read the SSA. But I'm acknowledging that it might not work that way - which just serves to confuse people.

No, the chute wasn't closed to those who hiked up, just to those within the ski area.

The landowner (primarily the Forest Service) wants to close the slope to skiers from the ski area, but not to backcountry users who began outside the ski area. This is common on ski area boundaries.

Think of the motivation being the Forest Service wants to keep the skiers inside the ski area where they are under the care of ski patrol while simultaneously allowing backcountry access outside the ski area.

 

[tball]

Here's an identical example posted by @Ken_R (sorry to drag you into this) over here. He and @MattSmith skinned up the Berthoud Pass backcountry to the Winter Park ski area boundary at The Cirque:

In spite of that closure sign, they were perfectly legal being on that side of the rope outside the boundary because they hiked up starting outside the ski area. If someone from inside the ski area (where you see the Cirque sled tracks) were to duck the rope, they would be in violation of the SSA standing in the same spot and onward into the backcountry. At least that's my understanding of how it works.

 

[dbostedo]

No, the chute wasn't closed to those who hiked up, just to those within the ski area.

The landowner (primarily the Forest Service) wants to close the slope to skiers from the ski area, but not to backcountry users who began outside the ski area. This is common on ski area boundaries.

Then I'd argue that they aren't following the SSA, which says those closed signs should be used where the landowner tells the ski area that the land is closed.

"Where the owner of land adjoining a ski area closes all or part of his land and so advises the ski area operator, such portions of the boundary shall be signed as required by paragraph (e) of subsection (2) of this section."

That doesn't say "where the owner of land adjoining a ski area has all or part of his land open, but doesn't want entry from the ski area".

Actually, either way, I can't understand why there is rule about the sign at all, since the rope is already supposed to keep you from entering from the ski area. Hmm....

 

[tball]

Then I'd argue that they aren't following the SSA, which says those closed signs should be used where the landowner tells the ski area that the land is closed.

"Where the owner of land adjoining a ski area closes all or part of his land and so advises the ski area operator, such portions of the boundary shall be signed as required by paragraph (e) of subsection (2) of this section."

That doesn't say "where the owner of land adjoining a ski area has all or part of his land open, but doesn't want entry from the ski area".

Ah, I see your point. Maybe they'd argue that as a technicality, but that would get to the absurd, IMO. If that were the case all of the land outside the ski area would need to be permanently closed to backcountry users in order for the ski area to close their boundary.

Actually, either way, I can't understand why there is rule about the sign at all, since the rope is already supposed to keep you from entering from the ski area. Hmm....

It's as much or more about keeping the inmates in the ski area as keeping backcountry users out! It's confusing, but I think the closure sign is redundant to the rope except at the Aspen areas where they are messing up the meaning of a rope where it depends on the color.

 

[dbostedo]

It's as much or more about keeping the inmates in the ski area as keeping backcountry users out! It's confusing, but I think the closure sign is redundant to the rope except at the Aspen areas where they are messing up the meaning of a rope where it depends on the color.

If it's just for redundancy, I guess that's OK then, though still shouldn't be necessary. That's why I think it's a valid assumption to assume that the closure sign is for whatever slope is right there at that point of the rope - again, though it still shouldn't be necessary.

 

[Mike King]

Hey, at least someone gets it.

https://www.tetongravity.com/story/...il&utm_term=0_02c03531f8-51d4cfcc93-273070065