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Public Access to Colorado's Top Peaks in Jeopardy Due to Risks on Private Land

August 17, 2005

Four 14,000-foot peaks declared off-limits this summer may be the first in a series of trail closures on private mining claims throughout Colorado, or they may be a precaution meant to head off lawsuits. The four peaks are among the most popular 14,000-foot peaks, or fourteeners, in Colorado because they all can be climbed in a one-day hike.

Alma's fourteeners were closed when three of the roughly 60 mining-claim owners on the peaks told the Forest Service in June they no longer wanted to allow hikers on their land because they feared allowing access would leave them open to lawsuits if a hiker was injured. "We have so many ways we can be sued that we thought the simple solution was just telling people to stay off," said Ben Wright, one of the claim owners.

U.S. Forest Service rangers started handing out fliers in and around this former mining town at the end of June warning hikers that Mount Bross, Mount Cameron, Mount Democrat and Mount Lincoln were closed because getting to their summits would mean crossing private mining claims whose owners no longer welcomed hikers. "For now these peaks are closed," said Sarah Mayben, head of the Forest Service's South Park Ranger District. "They are private property, and there is nothing we can do."

But rangers, sheriff's deputies and landowners have done nothing to stop hundreds of trespassing climbers. Recently at Kite Lake, the main trailhead for these forbidden fourteeners, there were no signs warning the summits were closed. The only sign, posted by the Forest Service, advised hikers wanting to explore Colorado's highest peaks that they "are in luck because South Park Ranger district is home to four of Colorado's famous 'Fourteeners.'"

"It's a bunch of baloney," said Keith Wood, an Australian now living in Seattle who had spent a week climbing in the area and had seen scores of hikers. "There's bloody people all over these bloody mountains, and not a 'no trespassing' sign to be seen." Steve Smith, visiting from Florida, said he knew the peaks were off-limits. "We saw something about them being closed on the Internet, but we came anyway," he said. On July 20 he climbed Democrat and Lincoln and saw about 30 other peak baggers. He didn't see any irate landowners or sheriff's deputies writing tickets. Sandra West of the Park County Sheriff's Office said the next day that deputies had not issued any tickets or made any arrests of trespassers on the peaks.

Similar fears eventually could affect large swaths of the high country. Although mining has disappeared largely in Colorado, the state's mountains are riddled with what the Environmental Working Group, a nonprofit research organization, estimates are 800,000 acres of patented mining claims, an area three times the size of Rocky Mountain National Park. Patented mining claims are sections of public land that became private through the 1872 Mining Act, a frontier-era law that gave away land to encourage development of the West. Since the claims followed mineral deposits, many are in alpine settings surrounded by public land. These parcels, many of which have not been mined in decades, can be bought, sold and developed like any private land.

"The access issues near Alma are just part of a much larger story," said T.J. Rapoport, executive director of the Fourteeners Initiative, a nonprofit group that builds sustainable trails on Colorado's highest peaks. "With Colorado's mining history, there are similar issues all over the high country."

A narrow claim cuts across the north shoulder of Pikes Peak, including the Pikes Peak Highway and the Crags Trail. Mount Sherman, a fourteener south of Mount Democrat, is owned by a company that could bar hikers at any time. Wilson Peak, near Telluride, Colo., had its most popular trail blocked this year by a private claim owner. The Sawatch Range in central Colorado, which has 15 peaks topping 14,000 feet, is pockmarked with private holdings. "Mount Shavano alone has 11 different claims," said Chris Welker, a forester with the Salida Ranger District, which oversees many of the peaks. "So far we haven't had any access issues with them, but the potential is there."

Owners who publicly deny access while quietly looking the other way as hikers cross their claims reap a substantial advantage, said Ken Jaray, a personal-injury lawyer. "There is a stricter legal standard for a trespasser versus someone who is just visiting," Jaray said. Under state law, he said, any nontrespassing visitor injured on private land must prove that an injury was caused because a landowner "failed to use reasonable care." But a trespasser must prove the harm was "willfully or deliberately" caused by a landowner.

"Those are very significant differences," Jaray said. Under the "reasonable care" standard, he said, a person who fell through the floor of a rotting mining shack probably could sue successfully to recover damages. "Whereas under the 'willful and deliberate' standard," he continued, "you'd basically have to prove that the shack was booby-trapped."

Claim owner Wright said owners aren't up at Kite Lake trying to stop anybody. "People have been climbing those peaks for years and years," he said. "I have no problem with them climbing them. I just have a problem with a lot of stupid laws that say you have to keep your land perfectly safe." He and other owners have been meeting with officials from the Forest Service, local government and conservation-minded nonprofit groups to try to find a compromise. Gary Nichols, Park County's director of community development and tourism, said they had discussed purchasing a trail easement across the claims that would keep climbers off private land.

In recent years, purchasing easements has solved many access problems. One recent easement kept a trail open across a mining claim on the saddle between Grays and Torreys peaks, Colorado's two most-climbed fourteeners. The group also discussed purchasing the land outright. Wright said he didn't think a trail easement would protect him sufficiently, and he doesn't want to sell his gold-mining claims. Instead, he said, he wants the county to pay for an insurance policy to protect against lawsuits. Both sides say there is no agreement yet.

Colorado's growing number of peak baggers are not waiting for a final resolution.

"Make us sign a waiver, I don't care," said Robert Schmerr, who drove out from Wisconsin to climb Bross, Cameron, Democrat and Lincoln. "Until then, even if there is a 'no trespassing' sign on every summit, I'm going."