RMHPA's Purpose


#1

There have been recent discussions among local pilots regarding RMHPA’s purpose and the allocation of club resources and efforts to local free flight sites. RMHPA is an advocacy organization for the right to keep free flight truly free. RMHPA’s first priority is to enjoy flying on Colorado’s public lands and permitted private lands, without needless oversight and regulation, as possible. It is vital, in maintaining access to these sites, that we are aware of affected stakeholders and governmental issues that could affect access and that we proactively manage potential problems before sites are lost.

When issues arise that could compromise access, RMHPA’s first priority is to work with government entities and landowners to seek resolutions to maintain access, without adding restrictions or encumbrances to the use of the site. This can sometimes be as simple as educating the involved parties about our sports and making agreements to maintain trails or other activities of stewardship. In some instances, private land owners and government agencies have only permitted continued use of flying sites when RMHPA agrees to provide liability insurance for their properties.

While it is true that Colorado Statute provides liability limitations for private land owners, under 33-41-103, there are limitations to that protection and it also does not prevent injured parties from filing suit against the land owner. Tort claims filed can take years to resolve and even if baseless or related to activities covered in the recreational use statute, can cost land owners in legal representation to fight the claims filed. A great Colorado example is Nelson v. United States (10th Circuit Court of Appeals, 2016). To summarize, a mountain biker received an injury while mountain biking on a trail maintained by the USAF Academy, in 2008. In 2014, the petitioner was awarded damages and the United States government was deemed liable. It wasn’t until eight years later, in 2016, that the 10th Circuit reversed that earlier decision, in favor of the land owner. Even though the protections of the law prevailed, in this case, the legal defense costs in a similar case would be insurmountable for most private land owners.

One major limitation of the landowner liability limitation law, is that the use of the land must be without charge. In any instance where a private land owner or government agency is receiving payment for our use of their land, this liability limitation evaporates. This could arise in instances where competitions, events, fly ins, clinics, or training activities involve a space rental or special use permit from the land owner or government entity.

When insuring a private land owner or a local government entity is truly the only option to keep a flying site open, unfortunately, some restriction is required, by the insurer, to reduce liability. This is when RMHPA is required to file safety plans and place requirements on site users. No Officer of RMHPA wants to pay for insurance nor place any use restrictions on any flying site without first exhausting all other options and without the only alternative being the closure of the site.

Please also bear in mind that RMHPA has no authority over nor interest in regulating any use of public (BLM) or Forest Service land. RMHPA’s only interests are to those stakeholders, mostly comprised of local governments (cities, towns, and counties) and private landowners. If your flying is on public lands, you are only subject to the laws of the State and the Federal Government, as applicable. RMHPA will never attempt to take away any of those rights, and contrarily, we will advocate and fight to protect those rights, should they be restricted or infringed.

My mission, as your Vice President, is to give all pilots who use all RMHPA sites equal representation and to address the issues which matter most to you. My implementation of site representatives and liaisons is an outreach effort to ensure local pilots you fly with, faces you know, are representing your needs and protecting access to your site. Should you have any concerns, please reach out to them or directly to me.

Thank you,

Adam Lendi


#2

Adam,

That is the most thoughtful, well presented description of RMHPA that I have read or heard. Outstanding!

Thank you,

Steve Ford


#3

Some clarification and my 2 cents:

One major limitation of the landowner liability limitation law, is that the use of the land must be without charge. In any instance where a private land owner or government agency is receiving payment for our use of their land, this liability limitation evaporates.

This statement is no longer completely accurate. Since 2016, CRS 13-21-121 limits liability for landowners who provide for recreational activities. This protection is given even when there is a charge for the activity. We include the following language on our aerotow waiver:

UNDER COLORADO LAW, THERE IS NO LIABILITY FOR THE DEATH OF OR INJURY TO A PARTICIPANT IN AN AGRICULTURAL RECREATION OR AGRITOURISM ACTIVITY RESULTING FROM THE INHERENT RISKS OF THE AGRICULTURAL RECREATION OR AGRITOURISM ACTIVITY, PURSUANT TO SECTION 13-21-121, COLORADO REVISED STATUTES.

In addition it was stated:

While it is true that Colorado Statute provides liability limitations for private land owners, under 33-41-103, there are limitations to that protection and it also does not prevent injured parties from filing suit against the land owner. Tort claims filed can take years to resolve and even if baseless or related to activities covered in the recreational use statute, can cost land owners in legal representation to fight the claims filed.

This is a “two edged sword.” Court cases can take years to resolve and are expensive. However, having insurance may encourage a law suit because a plaintiff knows there is a deep pocket (the insurance company) who is more willing than a landowner to settle for monetary damages. I know of landowners whose legal counsel have advised they not ask for USHPA coverage for this reason and just let the Colorado laws that limit liability apply.

It may be too late for the USHPA and especially certain sites because we used the offer of insurance to gain access. Once a government agency or private landowner is offered such insurance they come to expect it, regardless of its true value. So in many ways we created this problem of insurance. I look at other recreational users of public property - do mtn bikers need insurance to ride state or county trails? Do climbers? Hikers? Dog walkers? No, yet bikes crash into others, people fall and dogs bite and yet all are allowed to use public lands without insurance, because they never offered to provide it.

In my opinion the USHPA has become an insurance company. Most of the focus and efforts are centered on insurance and liability. I think in the long run this will be the ruin of the USHPA. Insurance issues have made getting a tandem rating near impossible and instructors are being eliminated. There are alternatives to insurance to limit liability while teaching and giving tandems, but our organization does not promote these.

Sorry for the rant. I know that most of the people serving our local and national club do so out of love for the sport with the best of intentions. I do value the RMHPA and all that it has done for free flying over the years. I have held pretty much every officer position at one time and contributed to the original deal for us to gain official access to Lookout through Jefferson County. Part of that deal was to insure the site. Looking back now, the insurance was probably not even needed, but here we are. At some point insurance may become cost prohibited or unavailable. That will require a new strategy!

My recommendation would not be that we drop insurance at sites where we have existing agreements, but that we make every effort not to offer it in the future or when we re-negotiate agreements.


#4

Jim,

I appreciate your response and I share your sentiment that RMHPA should not be insuring for the sake of insuring alone. During my tenure as an officer, I have no intention of voting to insure any site, unless insurance is the only option to prevent the closure of the flying site or to guarantee us access to an otherwise inaccessible site. I also agree that we should not offer insurance to a landowner unless all other avenues for ensuring access have been exhausted. By the same, if the need or desire for insurance by the landowner dissipates, I believe insurance should be allowed to lapse. Our mission is solely to keep free flight, for all wing types, accessible.

I can understand how some plaintiffs might be more inclined to file suit if they know the site is insured against injury and if they believe a large settlement is more likely. Nevertheless, it would be unreasonable to expect a private landowner, allowing us to use their property for our recreational gain, to foot legal defense expenses. As I stated in my last paragraph, I do believe in educating landowners about the liability protections afforded by Colorado law, prior to offering liability protection to landowners. If there was a misuse or abuse of insurance protection in years past, I am unfamiliar with it and it was likely long before my time. In reviewing this year’s renewals, thus far, all owners and stakeholders currently insured would otherwise prohibit access and there does not appear to be any unnecessary liability protection.

To your point about agrotourism, I should preface with a disclaimer that I am by no means an expert in this law. I did, however, review the statute you cited and I wanted to point out the definition of “Agricultural recreation and agrotourism activity,” found in 13-21-121(2)(b):

“Agricultural recreation or agritourism activity” means an activity related to the normal course of agriculture, as defined in section 35-1-102 (1), which activity is engaged in by participants for entertainment, pleasure, or other recreational purposes, or for educational purposes, regardless of whether a fee is charged to the participants. “Agricultural recreation or agritourism activity” also means hunting, shooting, swimming, diving, tubing, and riding or operating a motorized recreational vehicle that occurs on or in proximity to the property of an agricultural operation or an adjacent roadway. “Agricultural recreation or agritourism activity” includes, but is not limited to, planting, cultivation, irrigation, or harvesting of crops; acceptable practices of animal husbandry; rodeo and livestock activities; and maintenance of farm or ranch equipment. “Agricultural recreation or agritourism activity” does not include any activity related to or associated with medical marijuana as defined in section 44-11-104 or retail marijuana as defined in section 44-12-103.

I don’t know if this has been challenged, in relation to your hang gliding tow operations, but it seems it may not be a covered activity. The riding and operating of a motorized recreational vehicle may protect the tug operator, but perhaps not the tandem instructor. Again, I am not an expert in this area. I just want to ensure we are all being safe and protecting our best interests.

As I mentioned before, please pass any other concerns or questions along to me.

Happy New Year! May you all have a safe and prosperous 2019!

Adam


#5

Brilliant and thoughtful presentation of both sides of this critical topic. Thank you for that. (and sorry I’m late to the party on this). Suggestion:

Make these realities known to our national organization and elected/appointed representatives, both in USHPA and in our local communities. It’s my observation that both of these entities are uninformed and in fact mis-informed on these niche topics.