Sustained: Lawyers, Guns, and Money

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Draper's Bluff, Illinois, currently closed to climbing. Photo by Eric Ulner

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The sad story of Draper's Bluff

In the West, the vast majority of rock-climbing areas sit on public property: BLM, national forest, or state or national park lands. Such is not the case in the East. Private lands predominate. Large portions of the eastern states are rural, even wild, but generally this land is privately held, the “back 40” of small farms, cabins, trophy homes, and family homesteads. Throughout the East, private landowners are often willing to let climbers use the cliffs on their lands. They sometimes make a point of coming out to watch. Other owners, for a variety of reasons, want climbers to stay off.

The most common reason to restrict climbers is fear of liability if an accident occurs. So when climbers find a great crag or boulderfield on private land, with friendly owners, it sure helps when the law supports the relationship by protecting the owners from liability. Generally, climbers and hikers get thrown in with hunters, who enjoy broad and longstanding protection in many states. But not always.

Case in point: in 1996, Eric Ulner purchased a nice plot of land in southern Illinois containing a mile of the excellent sandstone escarpment known as Draper’s Bluff. This 110-foot-tall cliff is one of the most extensive trad- and sport-climbing areas in Illinois, and one of the only crags in the Midwest where climbers can enjoy multi-pitch routes. After the purchase, Ulner, a prominent Midwestern climber, guidebook author, and climbing school owner, officially opened the rock to climbers. He had done some homework and knew that the 1965 Illinois Recreational Use Act protected him from lawsuits if he allowed the public on his land for a “recreational or conservational purpose.” Or so he thought.

In addition to his climbing school, Ulner runs a tree-felling service. After a big storm in 2009, he got a call to do some tree work on the property of an attorney in nearby Carbondale, Illinois. Conversation drifted onto the topic of landowner liability, one of the lawyer’s specialties. Ulner mentioned the cliff on his property, and the lawyer mentioned that, in 2005, the liability language had been amended; he encouraged Ulner to read the latest version of the law. A few days later, a packet arrived in Ulner’s mailbox containing the current text of the Illinois Recreational Use Act.

“I read it, and my jaw dropped,” Ulner says.

The original law provided that landowners were protected if they permitted use of their land for “recreational or conservational purpose.” In the new version, this wording had been changed to eliminate most user groups, and now offered protection only for owners allowing “hunting or recreational shooting or a combination thereof or any activity solely related to the aforesaid hunting or recreational shooting.”

This change was not widely noted in the local media, but had the effect that, in Illinois, private landowners who allowed hikers, bikers, fishermen, birdwatchers, or climbers—anyone not carrying a gun—were fully exposed to lawsuits. Ulner, a vocal climbers’ advocate, had just finished a stint leading the Illinois Climbers Association. “The previous year I was president of the ICA,” says Ulner. “It was the height of irony to walk down to the parking lot and post a no-trespassing sign.”

“Fortunately, our largest climbing area and destination spot is Jackson Falls, which of course is in Shawnee National Forest,” says John Payne, the founding president of the Southern Illinois Climbing Alliance. “However, Draper’s has been a huge loss, as many trad lines exist there, not found in quantity at Jackson.”

Of all states with significant climbing opportunities, Illinois may have the least public land, only five percent of the total. In general, as the Illinois Recreational Use Act was tested after its passage in 1965, judgments tended to reinforce landowner protection, in keeping with the stated purpose of the law: “to encourage owners of land to make land and water areas available for recreational or conservation purposes… by limiting their liability toward persons entering thereon for such purposes.” With the intent of the law and the trend to strengthen it well established, it seems strange that in 2005 Illinois would reverse course and reduce protection for landowners. So what was the story?

In 1987, according to a study done at the University of Illinois [“Survey of Illinois Law: The Latest Twist on the Illinois Recreational Use of Land and Water Areas Act: Clamping Down on Landowner Immunities,” by Bryan Endres and D. L. Uchtmann], “the legislature significantly expanded the scope of the Act’s protection... in response to a national study of the effectiveness of recreational-use statutes in the various states.” Part of this expansion was to remove language specifying that protections applied to “rural” lands. This expanded protections into suburban neighborhoods, exposing the law to a new battery of tests involving scenarios well outside itsww original intent.

In 2003, despite an initial ruling in favor the landowner, an Illinois appeals court ruled in Hall v. Henn that the landowner was liable for a neighbor’s injury sustained on a tricked-out, iced-down backyard sledding run. The loophole that won the day was that the property had only been opened to “select friends and neighbors,” rather than “the general public.” The most far-reaching consequence of this ruling was to raise questions about liability in other “selective” openings, including cases where an owner might post a seasonal closure to protect wildlife or allow only non-motorized access.

The court decision gutted the 1965 act, just as the 1987 changes had unwisely expanded it, and in 2005 restorative legislation was passed. Language was added to 1) protect landowners even if they provided only selective access, and 2) explicitly eliminate residential areas. Unfortunately, the sponsors of the bill had apparently been listening mostly to one particular lobbying group, and in a classic case of lawyers, guns, and money, language was added stating that owners were protected from liability only if visitors were involved in “hunting or recreational shooting or a combination thereof.”

Whenever landowners became aware of the new law—as in the case of the Ulner property—climbers, hikers, birdwatchers, and fishermen got shut out. They needed reform, deserved reform, and finally saw it in House Bill 6072, introduced in February 2010 by Illinois Rep. John A. Fritchey (D). The bill quickly got through second reading, acquired two cosponsors, and near the end of March 2010 was referred to the House Rules Committee, whose sole responsibility was to schedule it for a vote.

But there it inexplicably stayed. The vote that should have made it law went by in May, and the bill remained in committee. No one seems to know why. There is some talk that the Illinois Trial Lawyers Association lobbied to kill the bill, presumably to allow people more freedom to bring lawsuits, but this is pure speculation. What is known is that at press time, this very helpful bill, which would open Draper’s Bluff to climbing, remains stalled.

On a national level, in early July, U.S. Agriculture Secretary Tom Vilsack announced a new program to “encourage owners and operators of privately held farm, ranch, and forest land to voluntarily provide public access,” according to a USDA press release. Unfortunately, the effort specifi cally promotes “wildlife-dependent recreation.” Although the effort does not preclude other types of recreation, it is aimed at the hunting and fi shing crowd. Let’s hope this focus does not lead to exclusion of climbers, as it did in Illinois.