Outside magazine, October 1996
Upon learning that two government agencies had agreed to pay him and his fellow plaintiffs $2.24 million, Mark Brewer could finally express a bit of vindication. "I'm pleased," said Brewer of the settlement reached last summer with the National Park Service and the Washington County Water Conservancy District. "The park was at fault, and now they have to change their procedures so tragedy doesn't strike someone else."
The incident had occurred three years earlier, when two Mormon youth-group leaders drowned during an expedition in Zion National Park's Kolob Creek Canyon (see "Who's to Blame for Kolob Creek?" Dispatches, May 1994). Brewer--the only surviving adult--and five teenagers then spent five days awaiting rescue. The group subsequently filed a $24.5 million federal suit, contending that the agencies had been negligent in failing to warn them of dangerous water levels when issuing them a backcountry permit.
Alas, the plaintiffs and their attorney seem to be the only ones declaring victory. In fact, many avid wilderness enthusiasts--and at least a few legal experts--fear it may have a chilling effect on those who control access to public lands. "I shuddered when I heard the news," says Charles Cook, the author of four backcountry guidebooks. "A lot of trails have already been closed, and I see more restrictions every year." Dennis Turville, who pioneered the Kolob route in the midseventies, is even more strident. "This," he says, "is a case of the public rolling over to pay off people who shouldn't have been there in the first place."
At press time, no other similar cases involving federal land-management agencies were pending, but that, says sports liability expert Jeff Riffer, is sure to change. "The Kolob case alone won't shut down the national parks," he says. "But our government has limited resources, and soon they may decide that it's more rational to close wilderness areas than to face an increasing number of liability suits."
Which raises a key question: Why didn't the government go to trial, since a victory could have established precedent that would make such suits all but untenable? Indeed, had the case been tried in court, the U.S. Attorney's office says it would have argued that a permit is not a guarantee of safety, that the group was inadequately prepared, and that its leaders exercised poor judgment in descending the canyon despite high water. To Riffer, however, it appears the U.S. Attorney considered the risk of losing--and thus establishing unfavorable case law--too great. The settlement simply bought land managers more time to deal with the backcountry access dilemma.
Despite this reprieve, a harsher new era may have already begun. Following the settlement, water district officials stated that "the tragedy should cause public agencies to evaluate whether facilities should be made available for recreational use." For his part, Zion chief ranger Steve Holder emphasizes that the park has no plans to close trails. But then, almost as an aside, he adds a detail that is perhaps most telling of all: Anyone wishing to overnight in Zion's backcountry must sign a liability waiver.