Court Limits Suits on Backcountry Perils

In a decision of importance to all American wilderness users, a federal appeals court has ruled that the National Park Service does not have to make every possible effort to protect people from hazards of the backcountry or to launch a rescue effort at the first sign of trouble.

The decision by the U.S. 10th Circuit Court of Appeals in Denver involving a Wyoming mountain climbing death means that the activities of wilderness travelers cannot be regulated to the point that they are virtually risk-free, experts familiar with the case said.

Richard A. Stacy, the U.S. attorney for Wyoming, added, “The point is that people have to be responsible, at least to a certain extent, for their own actions.”

Had the decision gone the other way, federal land managers might have been forced to virtually close backcountry areas to recreational users because there is no way to ensure their safety or protect the government from potential legal liability, Stacy said.

The case stemmed from the death of an inexperienced young climber in 1987 after a fall on 11,938-foot Buck Mountain in Grand Teton National Park.

Ben Johnson’s parents sued the federal government for unspecified monetary damages, claiming the Park Service should have given him more explicit warning about the dangers involved and not allowed him on the mountain if he lacked the necessary experience and equipment for that climb.

Failing that, the suit said, rangers were negligent in not launching an immediate search-and-rescue operation when they received word of possible trouble on the mountain, even though there was no indication then that Johnson was hurt or in real danger.

While the precedent directly applies only to the Rocky Mountain region, Stacy said, “I think it will have governmentwide and nationwide application,” and not just for mountaineers.

The decision thus might spare hikers, skiers, snowmobilers and others from strict new regulation throughout the 700-million acre federal estate, he said, including lands under the control of the Park Service, the National Forest Service and the Bureau of Land Management.

“It’s hard to grasp how important this case was,” commented James P. McCarthy, a New York trial lawyer who represented the American Alpine Club as an expert witness working with Assistant U.S. Atty. Carol A. Statkus, who led the federal legal defense.

Victory for the plaintiffs would have forced “a doomsday scenario” on federal land managers, McCarthy said. “They would really have had to close down their entire backcountry. That’s how serious we took this thing,” he said.

The case first was dismissed by the district court in Cheyenne, Wyo., because the facts failed to prove negligence by the Park Service. On appeal, the circuit court held that the federal government could not be sued in such an instance because the law exempts officials from liability when they are required to exercise policy judgment and discretion in reaching decisions.

The Johnson case met that test, the court said. The ruling was made in November, but word of the decision did not circulate widely until this week. No further appeal was expected.

The court sided with the Grand Teton park superintendent’s argument that the dangers of climbing are obvious and that it was impossible for rangers to screen all climbers for competence. Also, the court noted, “many park visitors value backcountry climbing as one of the few experiences free from government regulation or interference.”

The Alpine Club’s McCarthy said it was impossible for the Park Service to respond to every possible report of trouble, noting that every park is inundated daily with false alarms involving “lost dogs, lost kids, everything under the sun. The rangers are trying to triage this and figure out what is real.”

Progress in the case was followed closely in California’s Yosemite National Park, an American rock-climbing Mecca. J.R. Tomasovic, the acting chief law enforcement officer, said Yosemite now faces more than $12 million in damage claims, including a suit alleging negligence in the death of a 12-year-old girl who was killed by a tree toppled during a windstorm. The suit claims the area should have been evacuated before the accident happened.

“When you come into a park you assume certain risks in being in a wilderness environment,” Tomasovic said, but that many people “want Disneyland safety.”

Coincidentally, a federal magistrate in Yosemite upheld Friday the park superintendent’s decision to prohibit people from parachuting from the brow of El Capitan, the tallest and steepest rock wall in Yosemite Valley.