April 18, 2019

Colorado Supreme Court: Avalanches are Inherent Risks or Dangers of Skiing

The Colorado Supreme Court issued its opinion in Fleury v. IntraWest Winter Park Operations Corp. on Tuesday, May 31, 2016.

Ski Safety Act of 1979—Statutes—Immunity Statutes—Plain Language—Plain, Ordinary, Common, or Literal Meaning—Public Amusement and Entertainment—Skiing and Snowboarding.

The Supreme Court held that an avalanche that occurs within the bounds of a ski resort qualifies as an “inherent danger[] and risk[] of skiing” under the Ski Safety Act of 1979, C.R.S. §§ 33-44-101 to -114. The definition of “inherent dangers and risks of skiing” in C.R.S. § 33-44-103(3.5) specifically includes “snow conditions as they exist or may change.” By its plain meaning, this phrase encompasses an in-bounds avalanche, which is, at its core, the movement or changing  condition of snow. As such, C.R.S. § 33-44-112 precludes skiers from recovering for injuries resulting from in-bounds avalanches.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Particular Circumstances Leading to Fall from Horse Should Be Analyzed for Liability Determination

The Tenth Circuit Court of Appeals issued its opinion in Kovnat v. Xanterra Parks & Resorts on Tuesday, October 21, 2014.

Corrine Kovnat and her husband vacationed in Yellowstone National Park in Wyoming in June 2012. While there, Kovnat and her husband went on a horseback ride at the Canyon Corral, operated by Xanterra Parks & Resorts. While on the trail, Kovnat’s saddle slipped and she fell, striking her back on the ground and fracturing three vertebrae. Kovnat filed a diversity action against Xanterra, claiming Xanterra negligently operated Canyon Corrals because Kovnat’s horse was improperly saddled, and that Xanterra negligently failed to maintain the saddle in a safe condition or warn Kovnat of its unsafe condition. Xanterra filed a motion for summary judgment, asserting that under the Wyoming Recreation Safety Act (WRSA), Xanterra owed no duty of care to protect Kovnat from the injuries alleged in her complaint. The district court granted summary judgment to Xanterra, and Kovnat appealed.

The Tenth Circuit first examined the WRSA, and found that in general, claims like Kovnat’s would not be allowed. The Tenth Circuit reviewed a similar case involving a Wyoming horseback rider injured in a saddle accident, where it ruled that the particular circumstances leading to the rider’s injury needed to be examined on a case-by-case basis. Turning to Kovnat’s claims, the Tenth Circuit found no error in the district court’s summary judgment regarding Kovnat’s claim that the saddle cinch was not tight enough, because there was a great deal of evidence that employees of Xanterra checked the cinch and it was too tight to slip the saddle back around after Kovnat’s fall, therefore any slipping of the cinch was an inherent risk of horseback riding. However, the Tenth Circuit evaluated Kovnat’s claim that her stirrups were uneven and determined that the uneven stirrups may not have been a result of the inherent risks of horseback riding. It remanded for further proceedings on this issue.

As to Kovnat’s negligent training and supervision claims, the Tenth Circuit affirmed the district court’s summary judgment as to the cinch issue and reversed as to the stirrup issue. The case was remanded for further findings regarding whether the uneven stirrups were an inherent risk of horseback riding or some extenuating circumstance in which Xanterra may have been liable.

Colorado Court of Appeals: Violations of Open Meeting Law Can be “Cured” if Subsequent Meeting Meets Open Meeting Law’s Requirements

The Colorado Court of Appeals issued its opinion in Colorado Off-Highway Vehicle Coalition v. Colorado Board of Parks and Outdoor Recreation on August 30, 2012.

Curing an Open Meetings Law Violation—Summary Judgment.

In this action alleging violations of the Open Meetings Law (OML), plaintiffs, the Colorado Off-Highway Vehicle Coalition (COHVCo) and several nonprofit corporations and interested citizens, appealed the district court’s summary judgment in favor of defendant, the Colorado Board of Parks and Outdoor Recreation (Board). Plaintiffs also appealed the court’s order denying them costs and attorney fees. The judgment and order were affirmed.

The Board is responsible for managing all state parks and outdoor recreation areas and for administering all state park and outdoor recreation programs. One such program is the off-highway vehicle (OHV) program. Under the OHV Act, annual registration and permit fees are placed in the OHV Recreation Fund and are required to be used for specified OHV purposes. For several years, the Board has made a portion of the OHV funds available through a grant process awarded by the OHV Subcommittee, though the Board retains final authority to allocate the grant funds.

In November 2009, the Board provided notice and held a public meeting regarding possible changes to the OHV grant program and subcommittee. Notice of subsequent public meetings was made and meetings were held in January, February, March, May, and July of 2010. During the course of these proceedings, three violations of the OML occurred: (1) on March 19, following the meeting, the Board discussed proposed changes to the OHV program and the OHV Subcommittee via e-mail; (2) on April 28, the Board held a meeting via telephone and e-mail to discuss the proposed changes; and (3) on June 7, an “OHV Program Modifications Roundtable” was convened by the state Division of Parks and Outdoor Recreation to discuss the proposed changes (all Board members were notified, two attended, and one actively participated in this meeting).

After the June 7 meeting, COHVCo sent the Board a letter alleging it had violated the OML and subsequently alleged violations of the OML regarding the March 19 and April 28 meetings. On July 16, at its regularly scheduled public meeting, the Board was briefed by the Attorney General regarding the legal implications of the alleged violations. The meeting was well attended by all interested parties and numerous “key” parties commented on record. Ultimately, the Board unanimously approved the changes.

Plaintiffs sued the Board in August 2010. In its answer, the Board admitted to the three OML violations and plaintiffs moved for summary judgment and requested costs and attorney fees. The Board argued the OML violations “were all effectively remedied” by the July 16 public meeting. Following an extensive hearing, the district court granted summary judgment in favor of the Board and denied the request for costs and attorney fees, because the “Board cured any violation of the OML before the initiation of this lawsuit.”

On appeal, plaintiffs argued it was error to find that the Board “cured” the three OML violations. The Court of Appeals disagreed. The Court noted that the OML does not explicitly address whether a violation can be cured by holding a subsequent meeting that complies with the act. However, Colorado case law on the OML implies a public body may do so as long as it isn’t merely “rubber stamping” the earlier decision. The Court found that the July 16 meeting that effected the cure was not a rubber stamping of an earlier decision.

Plaintiffs also appealed the denial of their costs and attorney fees. The Court agreed with the district court that the Board “cured” the previous violation of the OML and therefore no costs or fees should have been awarded to plaintiffs. The judgment and order were affirmed.

Summary and full case available here.

SB 12-171: Creation of the Colorado Conservation and Recreation Program

On April 18, 2012, Sen. Brandon Shaffer and Rep. Jon Becker introduced SB 12-1340 – Concerning the Creation of the Colorado Conservation and Recreation Fund, and, In Connection Therewith, Creating the Colorado Conservation License Plate. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the Colorado conservation and recreation fund and program and designates the program as an enterprise. The program is directed to build a conservation and recreation center at Bonny Lake and to use any remaining moneys for similar programs. The program is given bonding authority. The program may enter into business relationships with nonprofit entities and exercise the powers necessary for an enterprise.

The bill also creates the Colorado conservation license plate. A person becomes eligible to use the plate by donating $150 to the Colorado conservation and recreation fund. In addition to the normal motor vehicle fees, the plate requires two one-time fees of $25. One of the fees is credited to the highway users tax fund and the other to the licensing services cash fund. Assigned to the Finance Committee; the bill is set for committee review on Thursday, April 26 Upon Adjournment.

Since this summary, the bill was referred unamended from the Finance Committee to Appropriations.

Summaries of other featured bills can be found here.

Colorado Court of Appeals: Statute Regarding “Taking” of Wildlife Not Unconstitutionally Vague; Juvenile Delinquency Conviction Upheld

The Colorado Court of Appeals issued its opinion in People in the Interest of M.C. on April 12, 2012.

Willful Destruction of Wildlife.

M.C., a juvenile, appealed an adjudication of delinquency entered after a bench trial. The judgment was affirmed.

The juvenile and two companions, T.P. and C.P., had gone out to shoot clay pigeons when they encountered a pronghorn antelope. T.P. shot and killed it. The boys went to C.P.’s home and returned that night, dragged the carcass down a hill, and hid it. The juvenile assisted. The juvenile was charged with willful destruction of wildlife, in violation of CRS § 33-6-117(1)(a)(II), which holds that it is unlawful to “intentionally abandon the carcass or body of taken wildlife.” The offense is a class 5 felony. The prosecution responded to a request for a bill of particulars as follows:

[Juvenile] abandoned the wildlife when he left the original kill site with the person who killed the wildlife. He went with the person who killed the wildlife back to a [sic] juvenile’s house. He then returned to the scene with the person who killed the wildlife. He helped move the carcass from the original spot to a different location. He and the others then abandoned the wildlife.

The juvenile moved to dismiss on the ground that the information failed to charge an offense. He argued that CRS § 33-6-117(1)(a)(I) and (II) are not independent and, therefore, the actor had to have “taken” the wildlife. Alternatively, he argued that subsection (II) was unconstitutionally vague because it does not identify what right or interest the actor must have in the wildlife. The court denied the motion.

The juvenile renewed his same arguments on appeal. The Court of Appeals rejected both of them. The Court first found that the plain language of CRS § 33-6-117(1)(a)(I) and (II) describe different ways of committing willful destruction of wildlife—one of which is abandoning wildlife regardless of whether the actor was also the taker.

The Court also found that CRS § 33-6-117(1)(a)(II) was not void for vagueness. A facial challenge requires a showing that the statute is “impermissibly vague in all of its applications.” The juvenile argued that a person can only abandon something in which a person has a right or interest. Here, the statute requires that the wildlife was “taken,” defined as “to acquire possession of wildlife.” Although finding ambiguity in the phrasing (the actor doing the taking is not identified), the Court held that it did not rise to the level of unconstitutional vagueness, because a person of common intelligence has sufficient notice under the statute that subsection (II) could apply to abandonment of wildlife taken by another person. “Abandon” is not defined in the statute, but the plain meaning of the word is clear enough that a person of common intelligence would understand that there was liability for abandoning the carcass of an animal taken by another. The judgment was affirmed.

Summary and full case available here.

HB 12-1317: Creation of Parks and Wildlife Commission to Replace Parks and Wildlife Board; Members to be Appointed by Governor

On February 23, 2012, Rep. Jerry Sonnenberg and Sen. Gail Schwartz introduced HB 12-1317 – Concerning the Creation of the Parks and Wildlife Commission to Replace the Parks and Wildlife Board in the Department of Natural Resources, and, In Connection Therewith, Describing the Composition and Terms of the Commission. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Senate Bill 11–208 combined the wildlife entities and parks and outdoor recreation entities and functions under the Department of Natural Resources. In so doing, the existing wildlife commission was merged with the existing board of parks and outdoor recreation to form the 16-member parks and wildlife board.

Effective July 1, 2012, the bill replaces the board of parks and outdoor recreation with the new parks and wildlife commission. The commission is comprised of 11 voting members and 2 nonvoting ex officio members (the executive director of the department and the commissioner of the department of agriculture). The voting members are appointed by the governor with the consent of the senate and must represent various geographical regions in the state and certain areas of interest or knowledge. Initial term lengths are staggered to reduce the impact to the board that results from member turnover. The commission is required to submit a five-year strategic plan to specified committees of reference. Components of the plan are specified. On March 23 the Appropriations Committee amended the bill and referred it to the house for consideration on 2nd Reading.

Summaries of other featured bills can be found here.

Governor Hickenlooper Signs Fifteen More Bills Into Law

Governor Hickenlooper has signed 111 bills into law this legislative session, including fourteen bills that he signed on Friday, April 6, and one on April 9, 2012. A complete list of the bills he signed Friday can be found here. Five of these bills are highlighted below.

  • HB 12-1181Concerning a Supplemental Appropriation to the Department of Corrections
    Sponsored by Rep. Cheri Gerou and Sen. Mary Hodge. This Joint Budget Committee bill changes the appropriations to the Department of Corrections for several services. This was one of three bills from the Joint Budget Committee to be signed by the governor on April 6.
  • HB 12-1229Concerning Publication Requirements for a Newspaper In Which a Legal Notice or Advertisement is Printed
    Sponsored by Rep. Carole Murray and Sen. Mark Scheffel. The bill creates a definition for “published” for legal notices that are required to be published in legally recognized newspapers, and creates a contingency for counties that do not have a newspaper.
  • HB 12-1269Concerning the Threshold Amount of Campaign Activity By a Candidate Committee In Connection With a Special District Election that Triggers Disclosure Requirements Under the “Fair Campaign Practices Act.”
    Sponsored by Rep. Jim Kerr and Sen. Ellen Roberts. This bill increases the amount that a candidate committee in a special district election must spend in order to trigger reporting requirements under the FCPA.
  • HB 12-1285Concerning Modifications to Statutory Provisions Governing Intergovernmental Cooperation to Address Wildland Fire Mitigation Where a Municipality Owns Land Inside a County for Utility Purposes
    Sponsored by Rep. Cheri Gerou and Sen. Cheri Jahn. The bill requires municipalities that own land for utility purposes inside a county but outside the municipal boundaries to enter into an Intergovernmental Agreement with the county or the Colorado State Forest Service in order to mitigate wildfires.
  • SB 12-066Concerning Expanding Those Persons Eligible as Guardians in the Guardianship Assistance Program to Include Persons Ascribed By the Family as Having a Family-Like Relationship With the Child
    Sponsored by Sen. Jeanne Nicholson and Rep. Bob Gardner. The bill allows non-family members to receive guardianship assistance if they are guardians and foster parents of a child and are committed to the child’s permanency.

Additionally, on Monday, April 9, Governor Hickenlooper signed HB 12 -1295 “Colorado Rockies Vehicle License Plate,” sponsored by Rep. Kevin Priola and Sen. Lois Tochtrop. The governor signed the bill into law at Coors Field before the Colorado Rockies home opener. The bill creates a specialty license plate for the Colorado Rockies that benefits the Colorado Rockies Baseball Club Foundation.

For a complete list of legislation signed into law by Governor Hickenlooper on April 6, 2012, click here.

For a complete list of Governor Hickenlooper’s 2012 legislative decisions, click here.

Tenth Circuit: Rehearing and Amended Opinion in Wyoming National Parks Snowmobiles Case; Substance of Opinion Unchanged

The Tenth Circuit Court of Appeals revised its opinion in State of Wyoming v. Nat’l Parks Conservation Assoc. on Thursday, April 5, 2012.

The Tenth Circuit granted rehearing on the case, which was originally decided on February 29, 2012, and directed the clerk to issue an amended opinion. The substance of the opinion remains the same.

SB 12-151: Giving Permanent Authority to Parks and Wildlife Board to Set Fees for Use of Parks and Recreation Facilities

On February 20, 2012, Sen. Lois Tochtrop introduced SB 12-151 – Concerning the Authority of the Parks and Wildlife Board to Set Fees for the Use of Park and Outdoor Recreation Facilities and Programs. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill makes permanent the authority of the parks and wildlife board to set fees for the use of parks and outdoor recreation facilities and programs. The bill is assigned to the Agriculture, Natural Resources, and Energy Committee; it has not been calendared.

Summaries of other featured bills can be found here.

Tenth Circuit: Challenge to Rules Limiting Snowmobiles in Wyoming National Parks Moot and Injuries Merely Speculative

The Tenth Circuit Court of Appeals published its opinion in State of Wyoming v. Nat’l Parks Conservation Assoc.on Wednesday, February 29, 2012.

The Tenth Circuit affirmed in part and vacated in part the district court’s decision. “In 1974, the National Park Service (NPS) adopted a default rule prohibiting the use of snowmobiles in all national parks except on designated routes. Pursuant to the default rule, NPS must promulgate a special regulation designating specific routes open to snowmobile use in a particular national park. Absent such a rule, no snowmobiles are allowed. In 1997, environmental and recreational groups began seeking to limit the daily number of snowmobiles permitted [national parks]. . . . In the present cases, Petitioners, the State of Wyoming, filed petitions for review of agency action, challenging the 2009 rules governing snowmobile use in the parks. The district court dismissed the petitions for review, holding Petitioners lacked standing to pursue their claims.”

“NPS prepared an EA in 2008 with the stated purposes of ensuring (1) park visitors had a range of appropriate winter recreational opportunities for an interim period and (2) recreational activities in the parks did not impair or unacceptably impact park resources or values. In the EA, NPS formulated two alternatives for snowmobile use . . . . Alternative 1 proposed elimination of snowmobiles in the parks. Despite the 2004 temporary rule allowing 720 snowmobiles per day into Yellowstone at the time NPS wrote the EA, NPS believed the 2004 temporary rule expired at the end of the 2007 winter season and, in the absence of agency action, snowmobiles were no longer authorized. Thus, the agency labeled Alternative 1 a ‘No Action’ alternative. In contrast, Alternative 2 proposed allowing 318 snowmobiles per day in Yellowstone and 50 snowmobiles per day in Grand Teton. NPS asserted the numbers selected in Alternative 2 reflected the recent snowmobile use trends in the parks. Concluding that neither alternative would pose any significant adverse impacts on the environment, NPS issued a FONSI for both Yellowstone and Grand Teton adopting Alternative 2. NPS promulgated a permanent rule for Grand Teton, but rather than issue a permanent rule for Yellowstone, NPS decided to promulgate a temporary rule for the 2009–10 and 2010–11 winter seasons to replace the reinstated 2004 rule while NPS determined ‘a long-term strategy for Yellowstone winter use.’ . . . [T]he 2009 temporary rule provided for 318 snowmobiles per day in Yellowstone and imposed a commercial guide requirement for snowmobilers.”

Petitioners filed separate petitions for review of agency action challenging both the substance of the 2009 rules and the sufficiency of Respondents’ analysis during the rules’ promulgation procedure. “Substantively, Petitioners asserted the 2009 winter use plans violated the National Park Service Organic Act and the statutes establishing Yellowstone and Grand Teton by arbitrarily restricting snowmobile access in spite of evidence which demonstrates that NPS could permit more snowmobiles without causing unacceptable impacts or impairment to park resources. Procedurally, Petitioners posited the 2009 rules arbitrarily and capriciously limit the daily number of snowmobiles into the parks in violation of the APA. Specifically, Petitioners argued Respondents ignored scientific evidence regarding snowmobile use in the parks and fashioned a rule that will systematically exclude thousands of snowmobilers from the parks. Finally, Petitioners alleged NPS violated NEPA by failing to consider a reasonable range of alternatives or to provide a reasoned explanation for the restriction on the number of snowmobile entries. Wyoming also alleged NPS violated NEPA by failing to take a ‘hard look’ at the environmental consequences of the 2009 rules.”

The Court held that “Petitioners’ procedural challenge to the 2009 temporary rule as to Yellowstone is moot, [and therefore] that portion of the district court’s order must be vacated and remanded to the district court to dismiss that portion of the case for lack of jurisdiction. As to Petitioners’ remaining claims, [the Court concluded] that Petitioners lack Article III standing to bring their substantive challenge to the 2009 temporary rule as to Yellowstone and their entire challenge as to the 2009 permanent rule as to Grand Teton because Petitioners’ alleged injuries are merely speculative.”

Tenth Circuit: Opponents of Ski Area Expansion Plan Failed to Exhaust Administrative Remedies with Forest Service

The Tenth Circuit Court of Appeals issued its opinion in The Ark Initiative v. United States Forest Service on Tuesday, November 8, 2011.

The Tenth Circuit affirmed the district court’s decision. “The Snowmass Ski Area occupies land within the White River National Forest near Aspen, Colorado. The Aspen Skiing Company operates the ski area pursuant to a long-term special use permit issued by the U.S. Forest Service. This permit requires Aspen Skiing to submit Master Development Plans to the Forest Service that outline any envisioned future improvements and expansion plans to the resort or surrounding areas.” Aspen Skiing “proposed improvements such as replacement of ski lifts at Snowmass, expansion and addition of ski trails, expansion of snowmaking facilities, and construction of a new complex at the Base Village,” and Petitioner contends that the Forest Service “violated NEPA by approving the project without examining certain cumulative effects— namely, effects on water resources, endangered fish, forest habitats, and ‘other resources.'”

The Court agreed with the Forest Service that Petitioners failed to exhaust these claims before the agency. Petitioners failed to exhaust any claims brought up on appeal at the administrative level beyond the water depletion issue. “Though they did exhaust the water depletion issue, they failed to properly preserve it before the district court.”

Obama Signs New Law to Permit Year-Long Recreation Opportunities on Forest Service Ski Areas

On Monday, November 7, 2011, President Obama signed H.R. 765, the “Ski Area Recreational Opportunity Enhancement Act of 2011,” into law. The new legislation clarifies the authority of the Secretary of Agriculture regarding additional recreational uses of National Forest System land that is subject to ski area permits.

According to Summit Daily, the Ski Area Recreational Opportunity Enhancement Act “permits year-long recreation opportunities on U.S. Forest Service ski areas, boosting rural economies while continuing to maintain stringent environmental safeguards.”

The new legislation amends the National Forest Ski Area Permit Act of 1986, which allowed only Nordic and alpine skiing. Under the new legislation, other snow sports may be permitted on National Forest System lands, as well as year-round activities. Potential permitted activities may include zip lines, mountain bike terrain parks and trails, Frisbee golf courses and ropes courses.Currently, the Forest Service averages 27 million visits annually to ski areas. This has contributed $4 billion every winter and created approximately 80,000 full-, part-time and seasonal jobs in hard-hit rural communities. Under the new legislation, the Forest Service anticipates roughly 600,000 more summertime visits that may create and sustain up to 600 more full-, part-time and seasonal jobs. The addition of summer recreation is expected to infuse almost $40 million of direct funding into local mountain communities.

Protecting natural resources will remain a priority and year-long facilities will be subject to the same review and approval processes as those for ski facilities such as the construction of ski lifts and ski trails.

Not all recreation activities will be permitted. Those considered to be destructive to the natural environment will be excluded, including tennis courts, water slides and water parks, swimming pools, golf courses and amusement parks.

“The national forests have always been some of America’s greatest playgrounds,” said U.S. Forest Service chief Tom Tidwell. “It is exciting that our ski areas will now be able to offer more recreational opportunities and economic benefits.”