[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.