Feds: Out-of-bounds not off-limits

It is not a crime to ski out of bounds into public land, according to a nationwide policy of the U.S. Forest Service.

The issue came to the fore after three rescue operations at Heavenly Mountain Resort on Jan. 15, two in California and one in Nevada. The skiers allegedly exited Heavenly Mountain Resort through their new backcountry gates, which were mandated by the Forest Service.

Apparently there was some confusion between the Forest Service and local law enforcement on what constitutes a crime in this situation.

Most ski areas on the West Coast operate on public land under a permit from the Forest Service, including Heavenly.

Ski resorts may close areas within their permit boundary due to hazards, but they may not limit access to public land outside the border of their permit area, said Forest Service spokesman Matt Mathes.

"Our guiding principal is that national forests are public lands and we should not restrict access to the public's lands," Mathes said. "If someone wants to leave the ski area boundary and ski into the backcountry, that's their prerogative as a citizen. We do not consider it a crime."

This is a contentious issue throughout the country because of the time, money and emotional costs counties incur from search and rescue operations, Mathes said.

The Forest Service expects skiers to obey all closure signs and roped-off areas and warns that anyone who enters the backcountry does so at their own risk. Frostbite, amputation, gangrene, slow suffocation or massive body trauma from an avalanche, hypothermia and death are just a few of those risks.

"If they get into a bad situation, there are only two possible outcomes: the individuals will either die or they will have to pay for a very expensive rescue," Mathes said.

The public land under the gondola is not in Heavenly's permit area, but is open to skiers through backcountry gates, according to resort spokesman Russ Pecoraro. This is the second season the gates have been in place. The resort prefers that people stay within the boundaries, Pecoraro said.

The resort may not close the gates unless it is performing avalanche control nearby, according to its agreement with the Forest Service.

Douglas County Sheriff's Office Sgt. Tom Mezzetta said there is a public safety concern here. The Forest Service does not consider out-of-bounds skiers a problem because they do not have to foot the bill for search-and-rescue operations, or send volunteers out who risk their lives, he said.

The county has the means to recover the costs of the rescue through civil action, said Forest Service spokesman Rex Norman. The Forest Service cannot do that.

California counties may bill each other for the cost of rescuing a resident of another county, Almos said.

The three gates on Heavenly's northern border warn skiers they are leaving the ski area boundary, and that the area is not patrolled or marked for hazards.

A caveat: ducking ropes is against the rules at all ski areas and can result in forfeiture of a season or day pass. It is illegal under California penal code to enter an area marked closed in a ski resort or to enter an area closed due to the risk of natural disaster, such as avalanche.

And a Douglas County ordinance prohibits bypassing a man-made barrier designed to prevent skiers from leaving the resort.

However, many ski resort borders are marked only by a sign that says "ski area boundary". There are often no ropes or closure signs. Sierra-at-Tahoe spokeswoman Nicole Klay said resort policy prohibits leaving through those areas. Norman was unable to confirm or deny Tuesday whether that is a violation of the Forest Service's open access policy.

Sierra-at-Tahoe restricts access to its eastern area, called Huckleberry Canyon, through backcountry gates. The canyon lies within its permit area, so it can be closed for hazards.

Heavenly Mountain Resort is the only ski area in Douglas County.

The sheriff's department is prepared to cite anyone popping out on Kingsbury Grade who they can show bypassed a man-made barrier at Heavenly, Mezzetta said.

"We are not saying anyone who goes out into the backcountry is in violation of the law," Mezzetta said. "If they don't intentionally bypass a man-made barrier, then they are not in violation."

Sgt. Joe Duffy said the county's ordinance was amended to be more strict because of "the enormous amount of time and money spent rescuing these idiots that go out in the backcountry."

It appears now that there are no areas in Douglas County where the ordinance would apply, with Heavenly's gates open.

"It's somewhat surprising that they've decided not to block that area," said Bob Morris, Douglas County deputy chief district attorney, who helped write the skier responsibility code. He said Heavenly had requested the law.

Jurisdiction questions

While Morris believed the county has a right to make such a law, the Forest Service disagreed.

"We have jurisdiction over federal land," said Mathes.

Douglas and El Dorado counties have agreements with the Forest Service that each county takes the lead in search and rescue operations.

Nobody has been cited so far this season by Douglas County, said Sgt. Duffy.

"But the season is young," he said.

Deputy Mike Sukau, who is in charge of search and rescue for El Dorado County is a proponent of legal, safe, responsible backcountry skiing.

"We are going to take each event on a case-by-case basis and look at the facts to determine whether to issue a citation," Sukau said. "The bigger issue is: are you prepared to go in the backcountry, whether it's legal or not."

The recent boom in the backcountry gear industry has made the outer mountains more accessible, but brings with it a false sense of security and safety, he said.

"People should get out there when they are ready, not just because they can," Sukau said. "I'm the one that has to make the death notification."

Douglas County Code

9.08.030 item 11. A skier, having used a ski lift or surface lift of a ski area, must not ski under a man-made barrier that is designed to prohibit a skier from entering a closed portion of the ski area or from leaving any part of the ski area. For the purpose of this section, a barrier may be designated by roping off an area. Any skier that violates this subsection is guilty of a misdemeanor.

El Dorado County code: 9.20.010 B

B. Skiers who ski in any area not designated for skiing within the ski area control boundary or who ski outside of a posted area boundary assume the inherent risks thereof. (Ord. 3418 ¤2(part), 1984)

(Doesn't create a crime, according to deputy district attorney Tony Sears. Implies that a skier would have to cover the cost.)

California penal code

A misdemeanor:

602 (r) Knowingly skiing in an area or on a ski trail which is closed to the public and which has signs posted indicating the closure.

409.6 Any unauthorized person who willfully and knowingly enters an area closed (because of flood, storm, fire, earthquake, explosion, accident, or other disaster) ... shall be guilty of a misdemeanor.