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Why an Avalanche That Doesn’t Kill You Might Land You in Jail

The circumstances surrounding the criminal case in Colorado's Summit County could have big consequences for backcountry users in the USA.

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Editor’s Note: On May 18, 2021, Evan Hannibal and Tyler DeWitt settled this case out of court with Colorado’s Fifth District Attorney’s Office. They will have to perform 20 hours of community service and be on unsupervised probation. They will not be required to serve jail time or pay restitution for the damaged equipment.

Original article: On March 25, 2020, Evan Hannibal and Tyler DeWitt were snowboarding in the backcountry above Colorado’s Eisenhower Tunnel, which sneaks its way underneath the Continental Divide connecting the Front Range to Summit County. The two were descending toward the parking area when they triggered an avalanche that buried a service road near the west portal of the tunnel and destroyed an expensive avalanche mitigation system.

The two submitted an avalanche report to the Colorado Avalanche Information Center (CAIC) and volunteered Hannibal’s helmet cam footage to the center, with the hope that it could contribute to the CAIC’s ongoing education and awareness efforts. Instead, the Fifth Judicial District Attorney’s Office obtained the video and used it as the foundation of a criminal case against Hannibal and DeWitt, charging the snowboarders with reckless endangerment for putting drivers on Interstate 70 at risk and seeking $168,000 in restitution for the destroyed mitigation system.

The case has spurred debate and concern over whether the charges brought against the two snowboarders will deter other backcountry travelers from turning over important information regarding avalanches to the CAIC.

Jason Flores-Williams, the attorney for Hannibal and DeWitt, filed a motion asking for the helmet-cam footage and all evidence provided to the CAIC to be dismissed, arguing that the use of the video violated his clients’ protection from unlawful search and seizure. The motion was denied by Summit County Court Judge Ed Casias, as Hannibal voluntarily provided the footage when asked by the CAIC in order to file its incident report, without any search involved.

The “Chilling” Effect

Subsequently, the Fifth Judicial District Attorney issued subpoenas requiring CAIC director Ethan Green and forecaster Jason Konisberg to testify as expert witnesses in the trial. Colorado Attorney General Philip Weiser then filed a motion to quash the subpoenas issued to Greene and Konisberg. The motion argued that neither the CAIC nor its employees were a party to the criminal case, and the requirement to testify was “unduly burdensome” to the center’s limited resources and “unreasonable” as all pertinent documents to the case were already publicly available via the CAIC’s incident report.

Additionally, having CAIC representatives appear as experts in a criminal trial on behalf of the People of Colorado could have a “chilling” effect that could harm the CAIC’s ability to gather information from backcountry travelers involved in avalanche incidents.

The defendant’s motion to suppress all evidence obtained by the CAIC reiterated the notion that having Greene and Konisberg testify could shift public perception of the CAIC to being an extended arm of law enforcement. According to court documents,

“..if CAIC is seen as a revolving door to police and prosecutor, then there will be a chilling effect unless it institutes Fourth and Fifth Amendment safeguards. An undesirable outcome as everyone’s goal is increased safety and education with regard to one of nature’s most uncontrollable and wild forces.”

That’s the narrative that has formed surrounding this case: that there is a legitimate concern that by involving the CAIC and relying on Green and Konisberg as expert witnesses, that Colorado’s backcountry travelers will suddenly stop sharing information with the center altogether. However, the CAIC’s concern over information sharing isn’t necessarily a new one.

“We spend a lot of time trying to get people to share their information with us and with other people,” says Greene. “And whether it’s [this case] or anything else that we encounter, that’s a priority for us.”

Casias rejected the motion to quash the subpoenas, which sets a precedent for future court cases involving avalanches. Now any time the court summons representatives from the CAIC into court to testify about avalanches, they have to go. This is problematic for the CAIC as its resources and staff are limited, and any time spent in court inhibits the center’s ability to do its job.

The CAIC has always made its materials and reports available in prior civil cases surrounding avalanches but has requested to not be involved in court proceedings. Expert witnesses testifying about the science behind avalanches can be found in the private sector without taking away time and resources from the CAIC. Casias’ ruling could result in the CAIC being dragged into more cases as a result of its avalanche reports, and the time required to attend to future criminal cases tied to those reports could result in the center focusing its resources elsewhere due to time constraints, which only serves as a detriment to the greater backcountry community in Colorado.

Public information surrounding the state of the snowpack is an important piece of the puzzle for the CAIC, and the disruption of that information stream can hinder the center’s ability to paint a complete picture of the state of the Colorado snowpack at a given time.

In this sense, the concern over information submissions is shared by the CAIC. Oftentimes, perception can outweigh reality, and the optics of CAIC representatives acting as expert witnesses in a case against two backcountry snowboarders could be negative. That’s still speculative, however, and the pervading narrative extrapolates the unique circumstances surrounding this particular case to everyday backcountry travel, which may be a bit of a stretch.

Skiers trigger avalanches both big and small, consequential and not, frequently in the backcountry. And the vast majority of the time they don’t result in damage to other backcountry travelers or property. But, in this case, the necessary elements coalesced into a situation where criminal charges were brought against two snowboarders.

“This is a very specific situation where somebody triggered an avalanche that somebody else feels constitutes a crime. And it’s been lumped into kind of everyday situations, which I don’t think is really the case,” says Greene. “People trigger avalanches all the time. And most people don’t think of those as being criminal acts. And so looking at this situation, and equating it to what most people encounter, I don’t think is really a very accurate description of what’s happening.”

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It’s Already Public Information

As far as future disclosures of avalanche information from backcountry travelers, information submitted to avalanche centers—not just in Colorado, but across the country—become public information. The CAIC is a cooperative effort between the Colorado Department of Natural Resources (DNR) and the Department of Transportation (CDOT). As a state agency, the CAIC is subject to the Colorado Open Records Act, and the information it collects is publicly available. While the majority of avalanche centers across the country are funded primarily by the United States Forest Service, they’re all still subject to the Freedom of Information Act; meaning all information submitted to any of the country’s avalanche centers is available to the public.

Casias stated in the hearing on February 16, that information provided to an avalanche center that subsequently became evidence in a criminal charge wasn’t a constitutional violation.

“If there are things that you, as a backcountry traveler do that cause new concern that law enforcement may be involved and someone reaches out and asks for information, you don’t have to give it,” said Casias. “I can’t make you disclose and I can’t make you withhold. But if your common goal is to make it safer for other people… it’s your decision.”

The CAIC has made it possible for backcountry travelers to submit observations anonymously. Even if a skier doesn’t want to disclose their name or where, specifically, they were skiing, the CAIC still encourages backcountry travelers to submit information, as it’s vital to the center’s function. Regardless of how public perception is painted by this particular case in Summit County, the onus for assisting with the spread of useful information for the backcountry community remains with the backcountry community.

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Additional Backcountry Responibilites

Aside from the issue of diminished public information sharing, the case involving Hannibal and DeWitt does pose the question of what responsibility backcountry travelers have to each other and to public property when recreating.

There have been numerous examples of avalanches triggered by one party onto another or skier-triggered avalanches burying vital roadways. In February 2019, a group of three snowboarders triggered an avalanche in the backcountry adjacent to Telluride Ski Resort, which buried and killed a skier traveling up the drainage below them. In this case, the snowboarders were unaware of anyone in the path of their descent who could be in danger of an avalanche release.

However, in 2016, also in the Telluride backcountry, an avalanche was triggered by one party onto another following communication between the two parties. The skier caught in the avalanche sued a member of the other party in small claims court, as a result.

The court ruled in favor of the plaintiff, but also issued a comment on future public policy in its ruling:

“In situations where skiers have no knowledge of whether a group is below, the legal outcome of an accident may be different than the result reached here. A liability rule that thus encourages skiers to avoid investigating whether their descent might pose a risk to those below feels averse to sound public policy. Communication and coordination between groups of backcountry skiers is surely good practice.”

The circumstances surrounding the criminal case in Summit County should spur a discussion of what responsibility backcountry travelers bear in relation to one another and to public and private property. The freedom of skiing outside the boundaries of the resort is often what attracts skiers to the backcountry. Relying on the government or another entity to regulate that will likely lead to closed areas, intrusive signage or the levying of criminal fines isn’t an outcome that aligns with that freedom backcountry travelers seek.

And so the responsibility lies on backcountry users to police themselves and take responsibility for the actions taken while traveling in the wilderness.

Resources have popped up in areas where backcountry traffic is high and people are consistently interacting with other parties and state highways. In Wyoming, the Teton Backcountry Alliance, for example, promotes public safety, community, stewardship, and sustainable access through dialogue, public information sharing, problem-solving, and advocacy.

In Colorado, Friends of Berthoud Pass operates a peer-based educational model to help foster continued education and responsibility for backcountry users in the state’s Front Range.

The answer to what responsibility is shared for the safety of others and to property is as complicated as the act of traveling in the backcountry itself. What is clear is that, for a group as tight-knit and passionate as the backcountry community, there should be a shared awareness of the impact one’s actions can have in such an uncontrolled environment.

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