A catastrophic event three years ago planted the seeds for preserving public hiking and climbing access in the Uncompahgre River Gorge forever – leading to a historic agreement signed in a crowded Mexican restaurant Tuesday.
The deal inked between the city of Ouray, the Ouray Ice Park and the owner of the Ouray Hydroelectric Power Plant didn’t come together easily, and involved several moving parts, extended negotiations and revisions up until the final hours before it was signed.
Mayor Ethan Funk compared the process to ascending a spiral trail on a mountain — where the parties involved circled round and round and had trouble seeing the final destination. But he called the agreement “an amazing demonstration of cooperation.”
“Hopefully this can be a template for how organizations can work together in the future,” he said.
The long-term solution to ensuring public access to the gorge was born out of another problem, which brought the parties together.
Three years ago, rockfall uprooted vital infrastructure in the dark, narrow canyon at the south end of Ouray.
That morning in March 2021, 12,000 pounds of rock crashed down and knocked out a section of the penstock carrying water to supply the Ouray Hydroelectric Power Plant, built in 1888. It also destroyed the trestle that holds up the steel pipe, the 4-inch line supplying water for the Ouray Ice Park and the catwalk used by ice park and power plant staff.
By necessity, the disaster brought together a trio of community and business leaders who have forged a unique public-private partnership — Ouray City Administrator Silas Clarke, hydro plant owner Eric Jacobson and Ouray Ice Park Executive Director Peter O’Neil.
In the short term, the three needed to figure out how to pick up and put back together the pieces. But the meeting also opened the door to conversations about how to address a delicate 30-year arrangement allowing the public to criss-cross Jacobson’s property.
After eight months of negotiations and back-and-forth between attorneys for the city and Jacobson, the parties signed a landmark deal this week ensuring, in perpetuity, climbers can continue to scale rock and ice in the canyon and hikers and runners can traverse narrow ribbons of trail along the edge of the gorge.
The centerpiece of the complex agreement is Jacobson’s donation to the city of roughly 7 ½ acres of a 35-acre tract of land he owns at the south end of the ice park, which includes a popular area for beginning ice climbers and a climbing route that was added to the Ouray Via Ferrata in 2021. The deal also covers and ensures permanent public access to a section of the Ouray Perimeter Trail, the Ice Park Trail and a trail used for the annual Hardrock 100 endurance run.
“The goal was – how do we make sure the Ice Park is going to be around for the next generation without having to worry about being on private land? This collaboration has solved that problem,” O’Neil said.
“It’s a huge win for the community. No other way to say it. It’s an incredible, generous contribution from Eric.”
The Ouray City Council unanimously approved the agreement on Monday, which also includes an agreement to transfer a small parcel of land on Oak Street to Jacobson to build a tiny house for affordable housing. The parties formally signed it Tuesday night at Mi Mexico restaurant in Ouray, where a crowd gathered over pitchers of margaritas to cheer and applaud the historic pact.
Part of the motivation to pursue the deal came from the uncertainty of public access to the land in the future. Jacobson’s heirs, in theory, could decide to stop allowing public access or sell the land someday.
But a larger factor that drove the deal was concern over liability and the Colorado Recreational Use Statute.
CONCERNS ABOUT LIABILITY
The old arrangement dates back to 1992, when Jacobson purchased the power plant for $10 at auction. He had leased about 60 acres of his land in the gorge to the city for a dollar a year, allowing public access.
The Colorado Recreational Use Statute protects landowners who don’t charge for recreation on their land. But Jacobson and other private landowners have grown worried in the last few years that they could be sued by recreating visitors. Those concerns about liability stem from a 2019 federal appeals court decision that awarded $7.3 million to a cyclist who was injured on a washed-out bike trail at the Air Force Academy in 2008.
The case highlighted an exception in the recreational use statute that limits landowner protection if an injured visitor can prove the landowner displayed a “willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm.”
The Ice Park, with its steep canyon walls and 200-foot-long fangs of manmade ice, is an inherently dangerous place. Several climbers have died or been injured in the park over the years.
A legislative effort to remove the “willful or malicious failure to guard” exception from the statute failed earlier this year. Jacobson said he has no faith the legislature will be able to fix the statute, and since neither he nor Ouray Ice Park Inc., the nonprofit that manages the park, has liability insurance, he said the donation was the only way to protect himself while permanently preserving public access to the park.
The city plans to insure the land just like any of its parks, and believes governmental immunity will add an extra layer of protection.
ENSURING RECREATION AND BOOSTING ECONOMY
The agreement ensures the long-term viability of the heart of Ouray’s winter economy in the Ice Park, as well as a growing segment of the city’s already strong summer economy in the Ouray Via Ferrata.
A Kent State University study last year concluded the Ice Park, in the roughly 100 days it’s open per year, generates nearly $18 million in spending for the Ouray County economy. Spending by Ice Park visitors and climbers supported 184 full-time jobs and $6.4 million in local wages.
And when the ice park closes in the spring and the 20,000 or so ice climbers head home, they’re replaced by roughly 20,000 climbers in the summer and early fall who grab onto iron rungs and scramble across the via ferrata, which opened in 2020.
The preservation of public access to recreation is the latest event in the long history of the connection between the ice park and the hydroelectric power plant. Ice climbers started frequenting the gorge in the 1980s after they discovered long ice columns, created in the gorge by leaking power plant water pipes. It wasn’t until 1994 that the ice park had its first official “ice farmer.”
SPIRIT OF COOPERATION
For Jacobson, the donation reflects a spirit of cooperation in Ouray he says is lacking in Telluride, where for nearly 20 years he operated the Smuggler-Union Hydroelectric Power Plant. He gave up the lease on the plant after he tired of legal battles with the town.
“We’re not jackasses like in Telluride,” he said. “Nobody lawyers up and smacks people upside the head. (Ouray) is a society based on people trying to do the right thing.”
“The Ouray method is a much better method. That’s how Ouray works. If there’s an issue, you sit down and talk about it and see if it works.”
Jacobson pointed to the history of preserving community assets in Ouray — of the Fellin family donating land to the city that became Fellin Park, of the famous gold king Thomas Walsh donating property that became City Hall and the Ouray Public Library. He views his donation in the same regard.
“There’s time and time again where people have done the right thing by Ouray because Ouray has done the right thing by its citizens,” he said.
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