Snowboarders cited for triggering avalanche at Eisenhower tunnel

[toast2266]

Convincing a layperson that it was reckless to go snowboarding on the snowpack on that particular day seems complicated. This thread is proof enough that reasonable minds can differ.

It seems a whole lot easier to convince a layperson that it was reckless to go snowboarding in that particular location, with the exposure over the road. Not sure how "low probability, high consequence" fits into the legal definition of recklessness.

[goldenboy]

I know these guys have taken a beating on here, but no matter what, it's pretty weak that they called it in and provided what amounted to an obs report to the CAIC, and it's being used against them. Meanwhile Lesh gets basically zero punishment for all the shit that he does.

[~mikey b]

different bullshit

[brutah]

I know these guys have taken a beating on here, but no matter what, it's pretty weak that they called it in and provided what amounted to an obs report to the CAIC, and it's being used against them. Meanwhile Lesh gets basically zero punishment for all the shit that he does.

That's a pretty interesting perspective.... Definitely comparing apples to oranges comparing these guys to Lesh, but I agree with you that its pretty shitty that they called it in and that's used against them, probably the only evidence the state has against them likely too. Definitely something to think about when you a submit a slide in the future.

Do these guys get away with it if they just went home and decided not to call it in?

[SKIP IN7RO]

Do these guys get away with it if they just went home and decided not to call it in?

Probably would have been outed by social media after sharing the footy.

[adrenalated]

It wasn't directed at you personally, it wasn't directed in anyone in particular. I know you are a genuine and incredible person, and you do a ton of work to educate yourself and others in a quest to keep people safe.

I just want to make people stop and think. Just because someone made a mistake, it doesn't mean that person is a reckless asshole who doesn't care about their own safety or the safety of the people around them. For a variety of reasons, my risk tolerance has decreased in recent years to the point where I typically only ski consequential terrain during melt-freeze cycles. But, I guess the reason why I am so strung up in this one is that prior to this point in my life, I could see myself conceivably making the same mistake, and I certainly don't think of myself as reckless. It just bugs me that people who I genuinely look up to (such as you and Aaron) are so quick to condemn this guy. I also know people who regularly ski the sisters, and those people use the same argument this guy did that CDOT manages the risk. I know that you and Aaron know these people as well. And I don't think any of us would classify those people as reckless assholes.

I think there is a double standard here. This guy is clearly disliked and tends to put his foot in his mouth on social media. But that should not come into play when judging the act. Reckless to me, is the cat skiing company that took clients out in avalanche terrain on a day when old growth forests and roadways were being taken out by naturals. That is not this. It is clear to me that this guy made a completely honest mistake, and I think the DA's actions are completely unreasonable.

Good stuff here. First thanks for the kind words. I think you make a couple points here that are worth addressing.

1) I don't necessarily think these guys were "reckless assholes." In fact I'm quite sure they thought they were making a completely reasonable decision. What I object to is the characterization that this type of avalanche was not covered in the forecast (it was, on the forecast discussion tab the possibility for persistent slab avalanches in thinner snowpack areas was clearly discussed) and the idea that this was a fluke accident that they could not have predicted. That's just false. Summit went into good detail on that. I agree that not every backcountry traveler has the skill set to recognize that specific risk but that is not the same as unrecognizable. I don't know the level of actual experience and education that this group had but generally any person that has sufficient education and experience to safely plan a tour in aggressive terrain like this should have been able to recognize potential hazard. I absolutely agree that quickly/blindly characterizing people who are involved in avalanche accidents as reckless or stupid is counterproductive and inhibits your ability to learn from the accident.

2) My main issue with this accident is not that they chose this type of terrain, on this day, it is that they chose this type of terrain on this day above public infrastructure. In fact, I skied a west facing avalanche path further west in the zone about a week prior to this incident. The risk was not zero and we specifically identified, discussed, and avoided thin snowpack areas on the edges of previously windloaded areas on our tour. So when I say the hazard they faced was identifiable, I'm speaking from a place of experience... because we did exactly that. The terrain we chose was overall a bit less likely to slide (thicker, more uniform coverage) and less consequential (less rock/cliff hazard) than the terrain that this group chose but overall it was still big terrain and non-zero risk. The biggest difference, however, is our line did not threaten public infrastructure in any way, which is crucially important because...

3) As a backcountry community I strongly believe that it is imperative to travel with an exceptionally low risk tolerance when recreating in places that threaten infrastructure. The reason why is access. If backcountry skiers put snow on roads, we will lose access. It's that simple. And I do NOT want that to be the precedent. For example, take Berthoud Pass. If closure was the default for management of avalanche terrain above roads, that would mean Stanley, 80s, 90s, and Floral Park at a minimum would all become permanent closures. It wouldn't take much to extend that to a number of steep roadcuts, lower 110s, First Creek, and a bunch of other spots. Now that's getting difficult to enforce so you just stop plowing the parking lot. See where this goes? And that's my issue with this accident. Not that they chose to travel in this type of terrain on this day. It's that they chose to do it above a roadway.

4) Skiing the Sisters/using highway mitigation as justification. Yep I know the people you refer to. One I consider a good friend and not an asshole, but he is reckless, and I've told him that. The others I haven't heard them use CDOT bombing as justification but if they do, they are wrong, full stop. I increasingly stress that highway mitigation work is not equivalent to mitigation work for skiing in my awareness classes because I've noticed this is a disturbing trend.

5) I've avoided commenting on the legal case directly because I'm no dentist and we don't have the full story anyway. My layperson opinion is that he's probably getting the book thrown at him because this went down during the stay at home order. There might be more to it that we don't know as well. I don't feel like I have enough info or legal knowledge to really comment on whether the criminal charges are justified.

[adrenalated]

https://www.vaildaily.com/news/vail-...nche-incident/

OK I posted my above comment before reading this article, and I haven't watched the GoPro. But jesus fucking christ, they intentionally were kicking off the small wind slab? Above the highway? That just reinforces my points about exceptionally low risk tolerance above infrastructure. You shouldn't be intentionally triggering avalanches above highways. Ever. Just... no.

As for it being used as evidence against him? Eh, I dunno... I'd have to think about it more.

[goldenboy]

Definitely comparing apples to oranges

Definitely. Just annoyed that Lesh isn't in a Turkish prison for life for being a douchebag.

[altasnob]

If there is expensive equipment that can be damaged by a slide in the slide path, why was this area not posted as closed? There is a permanently closed slide path off the backside of a chairlift at Crystal. This closed slide path crosses a road at the bottom (closed in winter) and has been deemed too easy to access and too dangerous avy-wise, so it is illegal to ski. If an area is not closed, seems to be fair game to ski regardless of the avy conditions. The governments job is not to keep all backcountry skiers safe, but the government does have a duty to protect motorist from dangers along the road, such as avalanches and falling trees. I think this is on the government for not properly closing this area.

[mall walker]

If there is expensive equipment that can be damaged by a slide in the slide path, why was this area not posted as closed? There is a permanently closed slide path off the backside of a chairlift at Crystal. This closed slide path crosses a road at the bottom (closed in winter) and has been deemed too easy to access and too dangerous avy-wise, so it is illegal to ski. If an area is not closed, seems to be fair game to ski regardless of the avy conditions. The governments job is not to keep all backcountry skiers safe, but the government does have a duty to protect motorist from dangers along the road, such as avalanches and falling trees. I think this is on the government for not properly closing this area.

it would be great if the bc community could avoid an abundance of permanent closures by not causing slides into roads... it’s pretty nice being able to ski tanners and superior and that stuff (out this way), I’m sure the people who hit that road lap in april would be annoyed if it got closed cuz some bro needed footy

[~mikey b]

I don't know the history of that path at all, but if it's got a brand new blasting system it's serious. I also don't know how often it happens or has happened historically, whether at the tunnel, the Sisters or elsewhere, but yeah, I think it's a good plan to not trigger avalanches on paths that threaten a road. Even if you don't intend to but you know you might, I think you should not ski that path. And you should not use a ski cut to try to trigger a small avalanche when you know it can go big. Those guys knew that path was a willing runner.

To me it does not matter that they sent their obs in to CAIC and those are being used in their case. I think these days people have to understand that any video or photos that are published on social media, sent to CAIC, texted to mom, stored on your phone, etc. are fair fucking game in court.

From my couple winters working at Vail Pass, I also know that the fs and caic and troopers and the deputies figure out pretty quickly who the local backcountry tools are because they interact with them at trailheads and stuff. I wonder if either of these guys had a history of douchebaggery?

March 25th was early in the shutdown. People were not taking shit seriously, and govt agencies were freaking out. I know I was taking things pretty conservatively, and I even asked the sheriff, my neighbor, if we were cool doing what we were doing because I was certainly not fucking staying home, I was going skiing. And there were people doing stupid stuff that threatened my access to the backcountry. I'm fortunate though, I can boot up at home and skin out the door, go for a solid tour with turns and ride it switch into my basement apartment.






anyone know if Johnny Rotten is still stinking up VP?

[altasnob]

Ya, there is nothing that says evidence you voluntarily turn over to the government cannot be used against you, as unfair as it may seem. Ignorance of the law is no defense and you are supposed to know all laws that could potentially apply.

I struggle with criminal liability here. So if avy conditions are bad, and you ski a path above a road and it slides across the road causing damage, that is criminal. But how about if avy conditions are low and everyone would assume it is safe to ski but the path slides nonetheless. Is that criminal? So the whole criminal trial hinges on the avy conditions on a particular day, which is very inexact and subjective.

Even if these guys were not criminally charged, the government could civilly sue them and recoup for the damage they caused. Civil is a lower burden of proof, so easier for government to prove. To me, it seems the only reason they were charged criminally is for the government to try to recoup some of the cost of the damaged equipment. If that is the reason they were charged, the prosecutor would be breaching an ethical duty. Prosecutors should not charge just to get repaid but should charge because they believe a crime has been committed (in other words, prosecutors should not use criminal prosecutions to extort payments).

Maybe a fair compromise would be to not close areas like this, but post warning signs about the danger and advise that if you ski it and cause damage, you will be held accountable. Then they couldn't claim they were not put on notice. This may sound like huge pain but there are not that many of these areas in the lower 48. I can't think of any in Washington State.

[adrenalated]

Maybe a fair compromise would be to not close areas like this, but post warning signs about the danger and advise that if you ski it and cause damage, you will be held accountable. Then they couldn't claim they were not put on notice. This may sound like huge pain but there are not that many of these areas in the lower 48. I can't think of any in Washington State.

There are hundreds if not thousands of skiable avalanche paths that threaten roadways in Colorado (ie can "cause damage"). Definitely hundreds that are routinely monitored and mitigated. There are less of them that have automated avalanche control equipment such as Gazex or O'Bellix, but there is an increasing push to install more on the paths that threaten roadways because those systems are significantly safer to operate. A CDOT worker was seriously injured a few years ago when a shell went off in a launcher (forget if it was an avalauncher or a howitzer) and that seems to have really accelerated the installation of these systems.

[altasnob]

"Every winter, CDOT and its sister agency, the Colorado Avalanche Information Center (CAIC), regularly monitor and control 278 of 522 known avalanche paths located above Colorado highways."

https://www.codot.gov/travel/winter-...AvControl.html

[altasnob]

The (alleged) crime was committed at the moment the skiers started skiing the slide path. The legal argument being they knew the avy danger was high and knew the slide path crossed a road and still decided to ski it, which recklessly endangered persons and/or property. The fact that an avalanche occurred and damage was done does not make it any more criminal. The damage can play a factor in the sentence given and restitution, but it is not a requirement to prove the charge. For instance, DUI is illegal regardless of whether you crash your car or not. You have committed the crime of DUI the second you start driving your car sloshed. So if Dewitt is guilty of a crime, anyone who skis any of these 522 known slide paths in CO on a high avy danger day would be guilty of the same crime, regardless of whether an avalanche occurs or damage is caused.

[MiddleOfNight]

Legally, sure. But how many people drive drunk and don't get caught/charged?
I'd bet most who don't crash, don't get caught/charged.

If a dibs falls in the woods and there's no one around to hear it, is it still a dibs?

Something about outcome and consequence has a way of changing of legal motivation - and effecting the ability for public agencies to look the other way.

[altasnob]

Something about outcome and consequence has a way of changing of legal motivation - and effecting the ability for public agencies to look the other way.

True, but criminal laws, and all laws, are supposed to have clear lines between what is right and wrong. That is what prevents the government from arbitrarily enforcing the laws.

The current law (reckless endangerment in this case) does not say skiing avy paths that lead to highways is illegal, but only if you end up causing damage. The Summit County prosecutor's legal theory of this case is it is reckless endangerment if you ski an avy path that leads to a highway on a high avy danger day (the fact you cause damage is irrelevant to the legal elements of the crime). So when Dewitt claims his case could affect backcountry skiing everywhere, I think there is some truth to that statement.

[whipski]

So if there was avy control equipment in the slide path why didn't CDOT control it? Was it misplaced? Does CDOT consult CAIC in the use of said equipment? I've noticed down my way that the road closures for the "avy control" don't seem to correlate with releases that occurred when patrol was hucking bombs into the same slide path. Should this query have it's own thread? Be interesting to hear observations of others around the west.

[I've seen black diamonds!]

So if there was avy control equipment in the slide path why didn't CDOT control it? Was it misplaced? Does CDOT consult CAIC in the use of said equipment? I've noticed down my way that the road closures for the "avy control" don't seem to correlate with releases that occurred when patrol was hucking bombs into the same slide path. Should this query have it's own thread? Be interesting to hear observations of others around the west.

Controlling for big naturals and controlling for skiers isn't the same thing.

Sent from my Pixel 3a using TGR Forums mobile app

[doebedoe]

So if there was avy control equipment in the slide path why didn't CDOT control it? Was it misplaced? Does CDOT consult CAIC in the use of said equipment? I've noticed down my way that the road closures for the "avy control" don't seem to correlate with releases that occurred when patrol was hucking bombs into the same slide path. Should this query have it's own thread? Be interesting to hear observations of others around the west.

CAIC and CDOT both have offices in the Eisenhower tunnel. The two agencies work closely together in all things snow-control with CAIC having dedicated forecasters and staff for highway control.

[whipski]

Controlling for big naturals and controlling for skiers isn't the same thing.

Sent from my Pixel 3a using TGR Forums mobile app

Granted but it would be interesting to see the logs of how the equipment mitigation was used and the results

[doebedoe]

Granted but it would be interesting to see the logs of how the equipment mitigation was used and the results

Pretty sure if you email CAIC and ask them for them, they very well may produce them. CAIC is a program of a state department -- records they keep are public unless they contain pii/phi or otherwise sensative information. Such records fall under the Colorado Open Records Act (CORA). But only your first hour of state-employee time in their production is gratis -- then you gots to pay.

One reason they probably don't release info like that on their website is that people will draw all sorts of unsubstantiated conclusions. Few people have the skills to match up logs with weather, with field obs, etc etc to draw out an accurate interpretation.

[altasnob]

I made a public records request to the COLORADO, FIFTH JUDICIAL DISTRICT, DISTRICT ATTORNEY’S OFFICE a few days ago. Still no response but will share anything I receive here. I requested the entire prosecutor file. I believe this is the prosecutor handling the case. As mentioned above, public records cost money in CO. I am not going to spend my own money digging for info but I mentioned this case has a lot of national attention, so maybe the prosecutor will cut me a break on fees.

If people in CO (or anywhere) want to do further digging, you could make a public records request for "all documents" to the Summit County Sheriff (or whichever law enforcement agency investigated this case) and the CAIC. Public records are more or less free in Washington State. They cost money in CO, which sucks. Someone in CO could stop by the Summit County Courthouse in Breck and view the entire court file. The police reports are unlikely to be filed in the court file, but there should be a probable cause statement, which is a summary of the police reports.

What I am interested in is why and how did this become a criminal case? After the snowboarders voluntarily reported the slide to CAIC, did CAIC call the cops on them? And then the cops turned the case over to the prosecutor? Any email communication between the prosecutor and CAIC would not be confidential because it is not protected by attorney-client privilege (the CAIC is not he prosecutor's client). It is unethical for a prosecutor to use a criminal charge to try to extort restitution from someone (they can sue someone in civil court if all they want is restitution). So I am wondering if CAIC encouraged the prosecutor to charge a criminal offense in hopes that the defendants would be more likely to pay up if they are facing a criminal conviction on their record. If this is true, people should know that when you report a slide to the CAIC, that info can and will be used against you to convict you of a criminal charge. This, of course, will have a chilling effect and people would be less likely to share info with the CAIC. As far as I know, this is the first case in US history where someone has been criminally charged backcountry skiing.

I am not condoning the behavior of the defendants. I would have never done what they did. But this is a legally fascinating case.

[MiddleOfNight]

The current law (reckless endangerment in this case) does not say skiing avy paths that lead to highways is illegal, but only if you end up causing damage.

Google said a person commits reckless endangerment in CO by recklessly engaging in conduct which creates a substantial risk of serious bodily injury to another person. Is 'reckless' meaning they 'knew or should have known'??

Should they have known that ripping that line in those conditions posed a substantial risk of hurting someone (aka hitting the road or buildings)?

If I was the prosecutor, I'd say most of us have probably been on top of lines, and known there could be people skinning up or otherwise exposed down there .. and said well what if something breaks, it could hit them .. and made sure no one was in harms way first, or backed off entirely to a different line, just in case.

We wear beacons and airbags, carry shovels and probes 'just in case' of substantial risks of avi - I bet the guys had at least some of those.

Not sure if those thoughts hold any water legally, I'm just trying to think through the reason for the charges - I'm not a dentist lawyer.

But this is a legally fascinating case.

yeah +1 agreed.

[doebedoe]

Re: Colorado CORA request -- if submitted through through the appropriate channels, should net you a relatively quick turn around. There are strict time limits. If you submit a non-CORA document request, don't expect the same thing. Although you may end up getting more because CORA can be a PITA.

Be as specific as you can in your request -- else you're unlikely to get what you really want. Offer to talk on the phone if possible, it can clarify things and if you're not a dick, may in fact help get you a wider picture/more documentation. The clock on your 1hr of free work starts when the documents begin to be pulled, not in figuring out what you want which is often the biggest issue.

Source: Been on the recieiving side of a dozen of these in the last week.