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Colorado’s first-ever criminal charges following an avalanche could be slippery slope for backcountry travelers – The Colorado Sun – Colorado Springs, Colorado

Colorado Springs, Colorado 2020-10-18 06:20:00 –

The two snowboarders talk about snow conditions and route selection as they drop in, one at a time. Gusting wind is blowing snow across the ridge as they wind between reefy rocks.

“Avalanche!” yells Tyler DeWitt as he cranks to a stop below his friend Evan Hannibal. 

The two watch the slide — captured on video by Hannibal’s helmet camera — grow from a small slough of wind-deposited snow into a deep avalanche that buries the service road above the west portal of the Eisenhower-Johnson tunnels with 20 feet of snow. 

“F***, dude that is what I was worried about,” Hannibal says.

“F***, dude that is not good,” DeWitt says. 

“I really hope nobody was on that road,” Hannibal says. 

After negotiating a safe descent, the veteran backcountry travelers call 911 to report the avalanche. There was no one on the road and no one was injured by the slide. They talk with police and avalanche investigators from the Colorado Avalanche Information Center. Hannibal gives the researchers his video, which they use to craft a report that details the specifics of the avalanche. Those avalanche center reports, like hundreds before them, help other backcountry travelers learn from previous incidents and possibly glean insights into the capricious nature of avalanches. 

And this time, for the first time ever in Colorado, the statements and video given by Hannibal and DeWitt are the basis of criminal charges filed by a prosecutor who is seeking $168,000 from the snowboarders to pay for an avalanche mitigation device destroyed in the March 25 slide. 

“We called the authorities in on ourselves. We handled it in a professional manner and tried to be as professional as we could be when a mistake was made,” said Hannibal, a 26-year-old emergency medical technician in Vail who has been snowboarding in Colorado’s backcountry for more than a decade. “I think the backcountry community should be worried about the repercussions here when you report an avalanche and tell the truth and get charged with a crime.”

Boarders charged with reckless endangerment

The avalanche below the Continental Divide barreled down a chute directly above Interstate 70. It started small — 4- to 6-inches deep — and then stepped down to deeper, weaker layers in the snowpack, eventually scouring the ground. More than 400 feet of the Loop Road above the west portal of the tunnels was buried. 

What began as a small slide of a few inches of fresh snow stepped down to a weak layer and ultimately scoured the ground in the March 25 avalanche. The snowboarders who triggered the slide face reckless endangerment charges and fines to replace a damaged avalanche mitigation system, which is marked by the blue ovals. (Provided by the Colorado Avalanche Information Center)

Bruce Brown, the district attorney for Colorado’s 5th Judicial District, said he studied the video of the accident. He points out that the two snowboarders were aware of the risk of an avalanche and discussed how to avoid that risk.

“We charged them with reckless endangerment because it was foreseeable they were putting other people at risk of serious bodily injury in that they recognized the potential for a slide and they could obviously see, right below their skis, I-70, where 100,000 cars go by each week,” Brown said. “They knew if there was a slide, it could end up on the roadway, endangering the traveling public.”

DeWitt and Hannibal had all the avalanche equipment needed for rescue and the video shows them practicing safety protocol —  discussing safe routes, noting hazards, moving one-at-a-time and stopping in safe zones — as they navigated through avalanche terrain. DeWitt had been riding different chutes in the area the weeks prior, with no incident. The chute the two chose to descend on March 25 had two remote controlled O’bellx avalanche mitigation cannons, which the Colorado Department of Transportation installed in the fall of 2018 to bring down smaller avalanches to minimize the chance of a larger slide burying the interstate.

“The riders assumed that the avalanche mitigation to protect the tunnel infrastructure decreased the avalanche hazard on the slope,” the CAIC report on the avalanche reads, also noting the difference between avalanche mitigation to protect infrastructure, which reduces the potential for large slides, and mitigation at ski areas, which reduces the potential for small, human-triggered slides. “Backcountry travelers who are unaware of the differences often overestimate the hazard reduction from an infrastructure mitigation program.”

The Colorado Department of Transportation, which spent $371,000 in 2018 installing three remote control avalanche mitigation systems above I-70 around the Eisenhower-Johnson Memorial Tunnels and another on Berthoud Pass, had never lost an O’bellx or Gazex avalanche device in a slide. 

The agency and the Colorado Avalanche Information Center use more than a dozen of the remote controlled systems on Loveland and Berthoud passes to reduce avalanche hazards above U.S. 6 and U.S. 40. CDOT has not replaced the O’bellx unit lost in the March avalanche. An agency spokeswoman said CDOT is looking at “alternative plans to ensure the slide path is safe” throughout the 2020-21 season.  

Trial date will be set later this month

Hannibal said he and DeWitt spent the entire climb up from the parking lot near the west portal of the tunnels studying the terrain and analyzing avalanche activity in the area. They only saw  small releases of new snow. 

“Our concern was definitely not reading into an avalanche of that size,” he said. “We were expecting light stuff, like the rest of the chutes we had seen.”

Hannibal said his worst-case-scenario concern was an avalanche that might hit the Loop Road, which is used by service and emergency vehicles and not open to the public. 

The March 25 avalanche deposited as much as 20 feet of debris on the Loop Road above the west portal of the Eisenhower-Johnson Memorial Tunnel. The road is not open to the public. (Provided by the Colorado Avalanche Information Center)

“At no point was I worried about it reaching the highway,” he said. “This was a relatively small chute and where we were standing was literally 3, maybe 4-inches deep before you hit rocks. We were on the shallow end of the snowpack. There didn’t seem to be that much snow in the chute to begin with.”

Hannibal and DeWitt, who are due back in court in Summit County later this month to set a trial date, are looking for attorneys. Hannibal also is using a GoFundMe page to raise a little more than $11,000 to pay for his defense.

Hannibal recently studied CAIC’s comprehensive list of avalanche accidents in Colorado and the United States. (Colorado leads the nation in avalanche fatalities, with 287 deaths since 1950.)

“So many avalanches. Numerous accidents in the backcountry and so many people have died in the backcountry,” he says. “And there have never been criminal charges and this is the only case that makes it to trial. That is astonishing to me.”

There has been one case in Colorado where an avalanche resulted in litigation and a small-claims judgement against a backcountry skier who triggered an avalanche that injured another skier. 

In that 2017 case in San Miguel County, District Court Judge Cory Jackson ordered Christopher Parke to pay Jayleen Troutwin $7,500 to cover medical costs after she was injured in an avalanche in Bear Creek, a drainage popular with backcountry skiers just outside the boundary of the Telluride ski area. Parke and his partner met Troutwin and her partner as they hiked out of the ski area. Parke said he would call Troutwin to make sure she was clear of the zone before he and his partner began their descent. 

Parke waited and made the call but Troutwin did not answer. He and his partner began their descent and triggered an avalanche that swept Troutwin off a rope as she rappelled down a rock face.

Read more outdoors stories from The Colorado Sun.

Jackson’s ruling had less to do with the dangers of backcountry skiing than the duty of care Parke had assumed when he said he would call Troutwin before beginning his descent. Because Parke began his descent before reaching Troutwin by phone, as he promised, Jackson ruled that Parke “failed to act as a reasonable person would under those circumstances and therefore breached the duty he assumed.”

Brown called Jackson’s ruling “a great piece of legal writing” and he sees similarities in his case against Hannibal and Dewitt. Brown said he is obligated to help victims secure compensation for property lost due to a crime and this case involves taxpayers losing avalanche mitigation devices. 

“People need to double down on safety not only for themselves and other people in the backcountry but also because of first responders whose resources are strained and who are working under heightened risks in the era of COVID,” Brown said. “We all need to have a heightened sense of safety and that may mean not taking as many risks as we may otherwise want to.”

Ethan Greene, the executive director of the Colorado Avalanche Information Center said the charges against DeWitt and Hannibal “bring up a lot of complicated issues.” And those issues are becoming more critical as avalanche forecasters and search and rescue teams across Colorado brace for what will be a very busy season in the backcountry. (Backcountry retailers and manufacturers are reporting record sales as skiers prepare for a season that may involve limited access to ski resorts.)

Greene’s team navigates a thin line when it crafts its reports on avalanche accidents. The goal is to create a record of avalanches that backcountry travelers can study to learn from previous miscalculations. Details about missed warning signs can provide insight for other travelers. The report writers at CAIC work to avoid assigning overly critical blame, for fear that future backcountry skiers might not share information about accidents. Greene’s team even provides their avalanche reports to the skiers involved before the description and analysis of the accident is published. That makes the report-writing process more like a discussion, Greene said. 

A district attorney might look at that process differently, Greene said. 

Brian Metzger, a special operations technician with the Summit County Sheriff’s Office who responded to the avalanche and interviewed DeWitt and Hannibal after the slide, reviewed the helmet camera video two weeks after the incident.

Two snowboarders who triggered an avalanche that buried Loop Road submitted helmet-cam video, from which this image is taken, that showed the debris and included them saying they hoped to people or vehicles had been on the road. (Provided by the Colorado Avalanche Information Center)

“Throughout the video, there are several comments made about areas of concern. The pair were clearly worried about avalanche conditions,” Metzger wrote in his report. “After the avalanche was triggered there were comments made about how they hope there were no people or vehicles on the road. They also make comments about being in trouble if the cops show up.”

The same day he received the video, April 6, Metzger said he attempted to contact DeWitt and Hannibal to issue them summonses for reckless endangerment.

Greene said he does worry about skiers possibly not sharing information with his investigators following the filing of charge. 

“The other thing I worry about is people triggering avalanches above other people or onto roads and killing people. We have had some really close calls,” Greene said. “We are seeing more people on the highway and more people in the backcountry and with those increases, this issue becomes more complicated.”

Hannibal and DeWitt said they always check the CAIC daily forecast before venturing into the backcountry. That day, the center’s avalanche forecast for the Vail-Summit County zone decreased the threat of avalanches from considerable to moderate. The warning that day included a note that triggering a slide between the new snow and old layers can shear slabs 2-feet deep that can propagate “wider than you might think.”

Hannibal said he happily gave his video to CAIC, “knowing the video would be used for avalanche education.” 

“I never thought it would be handed over to authorities,” said Hannibal, who pursued emergency medical care as a career so he could be prepared to help himself and his friends when they explored the backcountry.

Threat of charges in 1987 left two bodies buried for days

Jim Moss, a Denver attorney who has specialized in outdoor recreation legal issues for more than 30 years, has never seen criminal charges stemming from a backcountry avalanche. 

“Inbounds, yes. But out of bounds? Never,” he said. 

As he reviewed the case against Dewitt and Hannibal, he flipped through his book of Colorado’s statutes and read the law that constitutes reckless endangerment. The law says a person commits the misdemeanor crime by recklessly engaging in conduct “that creates a substantial risk of bodily injury to another person.”

“According to the statute, I think you have got to have someone at the other end of that avalanche run who could have been injured for this to be reckless endangerment,” Moss said. 

Moss also takes issue with the idea that backcountry travelers recognizing a risk and taking measures to avoid that risk can constitute criminal activity. 

“This criminal charge suggests that if you don’t have any idea what you are doing in the backcountry, you are better off,” he said. “Which is just stupid.”

Moss is concerned that a conviction could set a precedent that opens doors for more criminal charges spilling out of avalanches. Transportation agencies and avalanche centers across the West often create avalanches that cause damage, burying roads and parking lots.

“Everything about an avalanche is unpredictable,” Moss said. “This one has me worried. It’s just so far outside the normal boundaries”

Veteran avalanche researcher Dale Atkins said Brown, the district attorney, “is suffering from a bad case of hindsight bias.”

Atkins fears the chilling effect that could come from pursuing criminal charges, not not on backcountry skiing but all outdoor recreation. 

He worries criminal charges “or even the threat of prosecution” will deter people from reporting avalanches, which will challenge forecasters and researchers who study accidents so backcountry travelers can learn from past incidents and mistakes.

Atkins remembers the Summit County Sheriff in 1987 telling newspaper reporters that he might pursue criminal charges against two skiers who triggered the avalanche above Peak 7 outside the boundary of Breckenridge that killed four skiers. 

Atkins was in charge of the avalanche investigation back then and was searching for buried victims in the massive debris below the basin. The two skiers who were on top of the Peak 7 snowfield when the avalanche released went into hiding following the sheriff’s threat of criminal charges.  

“It wasn’t until we got the sheriff to back off his threat that the two came forward and provided information that helped us find the last two skiers,” Atkins said. “This is a situation and time for education, and not the heavy hand of the law.”

Like Moss, Atkins calls avalanches unpredictable.

“In the face of uncertainty we have to focus on the process, not the result,” he said. 

DeWitt had been riding the zone for two weeks before the March 25 slide. He said the snowpack was settling as spring and warmer temperatures arrived. The 38-year-old who has been riding backcountry in Colorado for more than 20 years said he suspected the two cannons in the chute had reduced the risk of catastrophic avalanches over the interstate. 

What began as a small slide of a few inches of fresh snow stepped down to a weak layer and ultimately scoured the ground. (Provided by the Colorado Avalanche Information Center)

“We did not trigger a 4-foot crown. That crown started at the cannons. So if there is a 4-foot crown sitting above a major interstate where they were mitigating avalanche danger, that tells me those cannons were not doing their job,” DeWitt said. “Those cannons are in place to control snow through the year and decrease the large build-up of deep, persistent slab avalanches. And that’s exactly what we exposed. I think Bruce Brown is bypassing the fact that the CAIC and CDOT cannons were not doing what they claimed to be doing. I don’t want this to look like I’m pointing fingers. I just want the community to learn from this.”

So does Greene. Education is a pillar of CAIC’s purpose, as well as protecting backcountry travelers and drivers on mountain roadways. It’s a delicate job, especially as travel in Colorado’s high country grows. Mitigating avalanches amidst spiking traffic mirrors the challenges of public lands managers who are balancing resource protection with maintaining access and encouraging people to recreate on public lands. 

“But they are starting to see more trash and more damage and more accidents. This year, we have seen these issues accelerate pretty dramatically,” Greene said. “This is something we all need to work on together. We need people to think about where they are recreating. This is something that we as a society need to wrap our heads around and understand what we value and what we expect of each other.”

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