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December 2002
A Survey of Legal Issues Affecting Climbing
      by Christian Caslin & Chris Archer
DYNO [Other Articles] [Table of Contents] [Preface] [Entire Article (270K pdf)]

This page contains the table of contents and preface from Christian Caslin and Chris Archer's fifty-eight page article. The entire article is included as a link to an Adobe Acrobat (.pdf) file.

Table of Contents [Preface] [Entire Article (270K pdf)]

Tort Liability

Elements of Liability

The Tort of Negligence

Legal Duty

Types of Duties

Reasonable Care/Reasonable Person

The Reasonable Profe_able

Duties of Landowners/Premises Liability/Duty to Warn

Invitee- must protect and warn

Licensee- must not setup to get hurt and limited duty to warn

Trespasser - no duty at all

Attractive Nuisance - when kids trespass

Causation

Cause in Fact

Proximate Cause

Strict Products Liability

Limiting Tort Liability

Limiting Liability for Negligence

The assumption of risk doctrine

The contractual waiver

The adhesion contract

Releases and minors

Wrongful death suits

Product Warnings

Limited Liability Business Entities

Governmental immunity

Sovereign Immunity Doctrine Generally - The FTCA and its Discretionary Function Exception

Climbing Activity

Applications to Forest Service Lands

Wilderness Areas

A Tort Action Against the Government in a Nutshell

Recreational use statues

A typical statute

Not charging

Incidental Fees

Criminal Aspects

Property

Easements

Purposes of Conservation Easements

Creation of a Conservation Easement

Land Trusts

Enforcement

Termination

Tax Issues

Other easements

Adverse Possession

Public Lands

The Major Public Lands Statutes

MUSYA

FLPMA

NFMA

NEPA

ESA

The Wilderness Act of 1964

Anchors and protection on wilderness land

Conclusion.

Appendix: Colorado's Recreational Use Statute

Preface [Table of Contents] [Entire Article (270K pdf)]

The purpose of this survey is to provide the climbing public with the basic ability to identify the legal issues that affect climbing. In doing so, it was conceived with a particular emphasis on preserving and creating access to U.S. climbing locations. This work is not meant to be a substitute for a legal education, or to supplant the advice of a practicing attorney. In fact, perhaps the best outcome this survey seeks to foster is an intelligent conversation between local climbers, attorneys, and land managers. By providing an outline of the legal issues affecting climbing, local climbing activists can be better equipped to develop solutions to access issues in their area.

This survey is divided into sections, each with a particular emphasis on a major area of law impacting climbing. These divisions are meant only to provide a framework in which to outline how the law has developed, and thus how it functions to influence any legal solution. This survey is not intended to provide a quick and easy index of problems/solutions. Legal issues affecting climbing are complicated. It would be foolish to focus on one particular element of a legal issue to the exclusion of others. Most often, legal issues affecting climbing draw from many aspects of the law. For example, a property rights problem often really concerns tort liability, and a natural resources issue may center upon a particular agency's statutory grant of authority to manage the land under its jurisdiction. Insomuch as this is the case, the traditional areas of law are somewhat intermingled - property concepts are discussed within the arena of tort law, as well is contractual waiver.

To this point, references to specific cases is disfavored as compared to an emphasis on the general legal concepts that inhere in most disputes. The multiplicity of jurisdictions, the uniqueness of the common law of each state, and the ever new flood of opinions on a daily basis, makes a particular case citation virtually meaningless. What is persuasive legal precedent in Colorado on a particular date is likely to be of no influence a year later in a dispute in Connecticut. Of more importance is a basic understanding of the core legal issues that inform particular case outcomes. On the other hand, there are particular areas, namely in the governmental immunity, easement, and public lands areas, where cases and statutory examples are employed to help illustrate these concepts.

It is our hope that this survey continues to serve as a concise introductory resource to educate local climbing activists- fostering a more informed position from which to argue for access to our many crags. As with any other human interaction, the more informed the parties are, the higher the chances are for sustainable agreement. Knowledge of the legal issues affecting climbing is a crucial prerequisite to any conversation involving access, and if this primer can serve to make that conversation more efficient and successful, then I'll consider my effort a success.

This work is a continuation and expansion of the first edition conceived and written by Chris Archer of the Access Fund in 1995. The goal of the first edition was to provide regional access coordinators with both an introduction to the legal issues affecting climbing, as well as an intelligent resource from which to make initial assessments about which areas of law were likely implicated in a given access conflict. From this informed position, climbers could then create partnerships with specific actors within the legal actors in their community to keep areas open to climbing. With this second edition this intention has not changed, but only broadened.

This edition follows the same topical format as the first edition. The general emphasis on tort liability and how to avoid it remains the main focus of the survey. Some of the specifics of the criminal nuances of trespass have been pared down, perhaps to evince an intent that climbers seeking access preservation should not go that far. Added to the survey is an examination of how recreational use statues and for profit endeavors collide, sometimes even under the auspice of governmental action. Also new to this edition is a more general conceptual approach geared to promoting a fundamental understanding of tort law, including the basics of an action based in strict products liability. It is hoped that expanding the depth of the material will make it more approachable and appealing to a broader audience. A foundation of knowledge rooted in the legal concepts presented in this survey functions to level the playing field between those without much legal knowledge and seasoned activists.

Further, this edition also addresses a few new topics, namely in the areas of federal governmental immunity, property concepts such as land trusts and conservation easements (of which credit is due to Reagyn Germer and Ben Sinnamon for an excerpt from their investigation of the success of this preservation model in the San Luis Valley), as well as in public lands law which provides a platform for identifying the differences between governmental agencies and the legislative directives that drive them. The general form of the survey has been modified from an outline format to a narrative one. While this makes for more reading, it is hoped that with the extra words come a fuller picture of the many ways in which the law affects access.

Finally, a note of thanks must go out to those people around the country who employ this survey. You are the ones working towards creating and maintaining access in your local community. Without your work on the ground, where the crags and people really are, the general climbing community would be tortured without access to our magnificent playgrounds. Kudos!

Christian Caslin & Chris Archer
Boulder, Colorado
Fall 2002

(c) 2002 Christian Caslin & Chris Archer. All Rights Reserved.

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