"I get the feeling that the hope of powder never dies here." -- Porter Fox, writing about Telluride's Bear Creek Canyon, Powder Magazine (Oct. 2010)
By Tim Mutrie
Published: December 14, 2010
In Boston you've got Bucky F-cking Dent. Now, in the mellow-tropolis of Telluride, Colo., you've got Tom F-cking Chapman.
Understand that the middle f-cking name moniker isn't bestowed upon just any run-of-the-mill type jerk. Nope. It's a special deal, reserved for the most reviled sort of perpetrator who, juxtaposed against an emotionally-charged historical backdrop, really, really earns it.
Tom Chapman can take the heat. He has made something of a career in playing--or being, arguably--the bad guy in Colorado land battles that pit the rights of private land owners against the public interest. This usually results in well-publicized confrontations where Chapman gets called all kinds of names and then wins anyway. Chapman's modus operandi: He buys up parcels of land known as "in-holdings"--that is, surrounded by public lands--then threatens to build or develop (or just builds and develops). Or, in the scenario blowing up near Telluride, threatens development long-term while short-term altering the historical and traditional complexion of a beautiful, wild place set aside for the public's enrichment by barring public access to it. And in-holdings with certain strategic cachet, Chapman has learned, are much like endangered species--they’re worth exponentially more when facing extinction. Thus, Chapman has frequently been accused of being an extortionist.
Which is also why Chapman is “probably the most hated man on the Western Slope,” says Telluride realtor Chip Lenihan in an interview. “He needs body guards when he shows up at a public meeting.”
None of this is meant to suggest that Chapman is a crook. But a recent Wall Street Journal story about Chapman did run under this headline: “‘The Buzzard of the Backcountry’ Strikes It Rich In National Parks." (A thorough rundown of Chapman dust ups appeared in The Denver Post back in May.)
It all makes perfect sense then that Chapman's latest news-making deal has brought him to Telluride's doorstep. That the U.S. Forest Service has so readily capitulated to his demands, however--with last week's announcement that it was closing, effective immediately, three backcountry gates that allow access from the Telluride Ski Resort into the Upper Bear Creek Canyon sidecountry--is another story altogether.
"People are freaking out here, for sure. It seems like this Tom F-ing Chapman guy is holding this land hostage for some big payout," one local Telluride skier says in an interview Friday with Powder.com.
"I think it's gonna be a full on civil disobedience free for all up there now," says Brett Schreckengost, a local photographer. "Because we've had the cake for too long; they can't just take it away now."
Bear Creek Canyon is just the sort of place you might read about in a multi-page spread in a ski magazine (take Powder Magazine, October 2010 issue, for example). It’s also the sort of place--filled with well-documented avalanche slopes that double as classic ski lines when they’re in condition--where people have died. According to the town’s figures, as many as 300 people ski out of the entire Bear Creek drainage on a busy winter day.
Comprised mostly of Uncompahgre National Forest, Bear Creek is an uber popular hiking destination by summer--its Wasatch Trail climbs out of Telluride and links to the tiny outpost of Ophir, via Oscars Pass. It has also gained equal esteem in wintertime with its easy access, directly east, from the Telluride ski resort. Like a lot of public lands, though, it is also dotted up with private in-holdings, including one controlled in part by a man known in some circles as Tom F-cking Chapman.
As of last March, Chapman and a partner, Ron Curry, control a swath of private in-holding in Upper Bear Creek; another private in-holding, owned by the West family, is also involved. (Until Chapman arrived on scene, the Wests tacitly allowed access.) The private lands, Chapman contends, put recreationalists who are passing through--by summer and winter--in a de facto trespass situation, because the common routes in and out of the canyon cross private property. (Reports in the local newspapers, The Telluride Daily Planet and Telluride Watch, have disputed Chapman's claim that the swath of lands create such a barrier.)
“There are other routes out there that don’t cross the Chapman or West properties, and if those properties are clearly marked they can be avoided,” said a local resident familiar with the terrain. “It’s like, ‘No, Chapman, you don’t have this ace in the hole.'”
Last Tuesday night Stu Fraser, mayor of Telluride, was driving home from a council meeting. An email from the local district ranger of the U.S. Forest Service, Judy Schutza, popped up on his phone.
Fraser immediately forwarded the email to the town attorney and town manager. He was also struck by it, he says, "For being very limited in information, I felt it was somewhat cryptic. I questioned whether it was even from the Forest Service. It was the first we'd heard about it."
The next day, Wednesday, the Forest Service issued a press release formally announcing that the access gates off the ski area into Upper Bear Creek were closed. So, literally overnight, skiing from the resort into Upper Bear Creek went from a right--something skiers were free to do, at their own risk--to a criminal offense (Class II petty offense punishable with a fine up to $1,000, per the Colorado Skier Safety Act of 1979).
Coincidentally, that same day, Fraser bumped into ranger Schutza on the street. "I asked her if she was thinking of rescinding the gate closures," Fraser says. "And she said no."
"It's just so abrupt. We've just been so totally caught off guard by it. People are trying to figure out what's caused this? Is there a bigger picture going on here? I understand the position of the private land owners, but I don't understand the Forest Service just going along with those two complaints," Fraser continues.
Nothing had changed as of Monday this week, Fraser reported. "At this point, something that was long allowed is no longer allowed. We still feel that the Forest Service acted abruptly and without consulting the senior land holder in Bear Creek, which would be us."
Schutza’s email reads, in part: "Most of you know the new landowners [Chapman and Curry] and a long-time landowner [the West family] in Bear Creek have asked us to remove the backcountry access points along Gold Hill Ridge that generally cause trespass across their private property. After much discussion with local and regional staff, I’ve made a decision to remove the three points that potentially cause trespass. ... This should take care of the landowner concerns, but will certainly affect local use of upper Bear Creek. It will also have an impact on all of our winter outfitter/guides in the drainage. They’ll need approval to operate on private land. Times have changed."
Last February, Chapman, who is about 60 and hails from Paonia, Colo., partnered with Ron Curry to form a "limited partnership," with Curry holding the majority stake; they called it Gold Hill Development Co. In March, under the auspices of Gold Hill DC, Chapman and Curry (it's not clear whether Gold Hill DC has other stakeholders) bought up four old mining claims, amounting to some 40 acres in Upper Bear Creek Canyon, for the sum of $246,000.
A few days later, Gold Hill DC announced it was barring access to its parcels, which according to Gold Hill DC extend across not only a number of common backcountry ski routes, but also--coupled, apparently with the West property--the egress out of Upper Bear Creek into Lower Bear Creek and the Wasatch Trail.
The local newspapers, the Watch and the Daily Planet, have been following Chapman’s manuevering, and so too, apparently, has the ski area. In May 2010, the resort bought an old mining claim directly adjacent the Gold Hill DC's claims in Upper Bear Creek; this dovetails nicely with an two-year snow study project undertaken by the ski area in the area and ongoing talk that the resort has been eyeing Upper Bear Creek for possible expansion, possibly a lift.
More recently, on Dec. 1, prior to the Forest Service's announcement that the Upper Bear Creek gates were closing, the ski area issued a somewhat ominous press release. The statement reads, in part:
“Telluride Ski Resort announced today that it is canceling its backcountry guide program in the Bear Creek drainage…
“‘Telluride Ski Resort believed it was providing a much needed public service which would help people learn to safely navigate the area,’ said Resort CEO Dave Riley. ‘However, certain owners of mining claims, Irene West, Tom Chapman, and Ron Curry, have not accepted our offer to provide insurance and indemnification agreements in return for access privileges across their property.'”
"Despite numerous attempts to reach out to the private land owners, the Ski Resort was unable to get a response. 'They literally would not return emails or agree to get together to discuss a solution,' said Riley."
Riley did not respond to requests for comment by Powder.com.
Says one local, who could not speak publicly about the matter, “Were it not for the ski company’s proposals for commercial use in Upper Bear Creek I doubt Chapman would’ve moved on this in the first place.”
Contacted via phone by Powder.com on Friday, Tom Chapman was polite in declining a formal interview request. "There probably isn't much I'd tell you on the phone," he says. "But I just got through emailing a reporter from outdoor magazine and basically the answers to the questions that you have are already out there--they've just refused to publish them in the two newspapers in Telluride."
"The problem is," Chapman continues, "the public only has half the story. There's a reason the Watch and the Daily Planet aren't publishing that part of it. As to why that's the case, I don't know."
Chapman then emailed over the text of an email interview he says he did, three months earlier, with a reporter from the Watch, Gus Jarvis. He says the interview was never published (attempts to reach Jarvis were unsuccessful).
In the Chapman-Jarvis interview, Chapman enumerates his plans for the Upper Bear Creek mining claims, including: re-opening them as working gold and silver mines; fencing them off for "maximum privacy in summer months"; barring public passage, summer and winter; constructing a 1,000 square foot "European-style rock chalet"; developing "eco-tourism facilities" of the “balloon-igloo construction technique”; and reestablishing "vehicular access along the historic Gold Hill Road for the entire four-and-a-half mile length of the road."
And then there are manifesto-esque digressions:
"Nearly every person in America, every environmentalist, every non-profit organization, and most of the people in Telluride buy real estate of some kind with the thought of selling it for more than they paid for it. This opportunity should not be denied a landowner who happens to be entrapped within a wilderness area or within Bear Creek,” Chapman says.
"Therefore, making a profit for my client is one of my goals. Another would be to serve as a ‘check’ against the overzealous portion of the environmental community and the sycophant politicians that pander to them for political gain." (The September 2010 Jarvis-Chapman interview was published on Lou Dawson’s WildSnow blog
yesterday in an adapted form.)
A few other interesting details also emerged: That Ron Curry, not Chapman, is the majority shareholder of Gold Hill DC (Chapman’s interest is 20 percent); that organizers of the legendary 100-mile footrace through the San Juan mountains, the Hardrock 100, held annually in July, had asked permission to use the Wasatch Trail where it crosses Gold Hill DC claims and that permission was granted.
Further, Chapman cites liability concerns specific to Bear Creek backcountry skiing: “The liability associated with public skiing over our private lands is unacceptable. This should be obvious, with Bear Creek off-piste ski run names like ‘Graveyard’ and ‘Deep & Dangerous,’ both of which are on the GHDC Little Bessie parcel."
Reached by phone on Friday, Ron Curry was at first reluctant to talk. A self-described "risk consultant" from California, Curry kept referring to the Jarvis-Chapman interview as Gold Hill DC’s official line: "Whatever Tom has just sent you, I'm in complete alignment with that. I say amen to that."
Asked if he is in fact the majority shareholder of Gold Hill DC, he replies, "That is a fact. That's all I'm going to say."
But then another hour passes and Curry is still talking. Do you want to sell to the ski resort? What's your goal? "I will say we purchased the property as an investment and have no intention of selling to anyone at this time," Curry says. "What would you have done, had you been me?"
I tell him everybody's gotta believe in something and I believe I'll go skiing. He laughs. Neither Curry nor Chapman, on the phone at least, sound like monsters. The whole story starts pouring out. "The official closing"--for the four mining claims purchased by Gold Hill DC--"was on the 26th of March, but we actually closed on the 18th of March and that's only notable because the Forest Service issued their permit, for the ski area's commercial ski guiding operation in Bear Creek, on the 19th. And I only say that because people have accused us of swooping in after that Forest Service permit was issued to TelSki [the ski resort]," says Curry.
"But that Forest Service decision memo doesn't even mention the private land owners. ... There was no effort to discuss this with any of the landowners of the impacted lands on the part of Ranger Schutza's office."
"Would you want me walking through your living room without even knocking on your door. I mean, private property means something, at least it used to, and we think it still does. But people in Telluride seem to have a problem with this concept and they've been abusing private property rights long before Tom Chapman and I got involved. At what point would you stand up to someone who was abusing your rights and say enough is enough?"
Curry is on a roll. "I'm not trying to be adversarial. But people can't just do whatever they want just because they once did. If it's private, it's private," he says.
So why play nice with the folks from the Hardrock 100 race?
"They're the only people who've ever asked to cross lands up there. And because they did so respectfully and in a timely fashion, it was granted. But no one else has ever done it--the Telluride ski company, the Forest Service, guide services. But the Hardrock people did. And that's usually how it is. You knock on someone's door and ask for permission. You don't just walk into the living room. Or kick down the door and defecate in the living room, which is what a lot of people are proposing to do."
What about easements, public right of ways, historical use?
"There are no easements. You say it's been there for generations? I'm sure it has but the land we own was patented back in 1891, and that's kind of forever too, no? It predates all the other patents up there with the exception of one, in the neighborhood, and it predates the National Forest. So if we're talking historical usage, I think one trumps another," Curry says.
"People will say skiing has happened there forever, but the fact is private property rights have been there for longer than that. ... It is an impasse. But it's an impasse not created by us. The impasse has been created by people who do not respect property rights."
"Let me put it this way, I don't think the Forest Service is at the top of the list, but I think within the Forest Service there are people less inclined to honor private property rights than others," Curry says, chuckling.
Back in Telluride last night there were plans afoot to gather the local brain trust--environmentalists, attorneys, public officials, stake holders--to take stock of the situation and mount a challenge. One local resident who asked not to be named said this meeting of the minds is slated for today, Wednesday morning at the latest.
"On the surface it seems like a Chapman extortion issue, but when you step back it seems like there's an even bigger power play going on," he says. "Whatever happens now is probably not going to happen overnight, but there's a good chance it'll happen--whether it comes down to prescriptive use, or whatever, to regain access. And any solution also needs to be worked out with the other land owners in the valley who have been up there a lot longer than Chapman.”
So much uncertainty has spawned a number of conspiracy theories involving, and not in the purest of lights, the Forest Service and the Telluride ski area. Chapman and Curry may well be the pawns in all this--or the queens.
Access to public lands off of ski areas has been, historically, something that has evolved individually on a resort-by-resort basis. Telluride’s Gold Hill backcountry access gates were established in 1999; before that, closures there created “bandit” situations for skiers who dropped in, according to a Forest Service spokesperson.
Boots Ferguson, a longtime ski area attorney, with Holland & Hart in Aspen, has been advocating for open boundaries for much of his career. And while the Jackson Hole Air Force might like to take credit for the hard-fought campaign to open the boundaries at Jackson Hole, lesser-publicized evidence points to Ferguson for creating the legal basis that won that victory for backcountry skiing for Teton-area skiers. The Aspen ski area boundary policies, too, are among the most progressive in the industry. Backcountry access gates exist, and are well-marked with skulls and crossbones like other places, but skiers in Aspen are free to exit the ski area along any boundary rope.
The boundary policy in Telluride is less progressive. Ducking ropes is not allowed; it is illegal. And while Colorado law may be clear, "The application is more complicated and that's what usually drives the train," says Ferguson. "That's why you're calling me."
“The Forest Service generally doesn’t like closing pubic lands, but it’s authorized to do so. And usually that’s the result of political pressures that have been brought to bear. And if you think about it philosophically, the price of freedom is the right to take risks,” Ferguson says.
Still, liability-wise, for private land owners like Chapman, Curry and the West family, the law does protect them, too.
“You can talk til you’re blue in the face that you’re not liable if people get munched on your land, but they may still say, ‘Well, I’m closing my land because I can,'” says Ferguson.
Citing the law, Ferguson says, the onus of the recreational areas liability statute says that an owner of land who either directly or indirectly invites or permits without charge any person to use such property for recreational purposes does not thereby:
A. Extend any assurances that the premises are safe for any purposes.
B. Confer upon such a person the legal status of invitee or licensee to whom a duty of care is owed.
C. Assume responsibility or incur liability for any injury to person or property or for the death of any person caused by an act or omission of such a person.
“The key is B, under the statute they’re going to be treated as a trespasser and a trespasser under the statute may recover only for damages willfully or deliberately caused by the landowner,” says Ferguson. “The whole design of the statutes is, one, to protect the landowner and, two, under the recreational use statutes, to encourage the land owner to make land and water areas open for recreational purposes by limiting their liability.”
And that’s not enough for Curry. “It’s a huge liability exposure,” he says. “People have been killed there. … We have nothing against profit, we’re capitalists, but if you charge somebody 98 bucks for a ski ticket and then send them down Deep & Dangerous or Graveyard then I will suffer some liability exposure for that. And I don’t want that.”
The local sheriff’s office, meanwhile, told the Telluride Daily Planet that it won’t be enforcing trespass violations that may occur on the private lands in question up Bear Creek. "Due to its remote location and our limited staff, etc., we can't possibly enforce the trespass laws on their property. They understood that, and didn't expect us to," said San Miguel County Sheriff Bill Masters.
The discussion opened another vein with Curry of Gold Hill DC. Asked whether, as the ski resort contends, Gold Hill DC has been unresponsive to the ski resort’s efforts to meet and discuss the access issue, Curry says: “We don’t have a relationship with them. People can believe this or not. But it’s not true that we’ve avoided responding to them. That’s just not true--in person, via emails, intermediaries…”
“This is not hasty, this is just hidden. All the things that are coming to light now are things have been in the works since May, at the least. Negotiations have been going on behind the scenes. We haven’t tried to get anybody to buy the land, we haven’t tried to sell the land, we don’t intend to, we haven’t made any coercive attempt against anybody--the feds, the state. But we have established rights that have been long abused by the permitees of the county government and the federal government. And if someone else wants to tell a different story, I can’t tell you about that. And if you read Tom’s missive, we’re consistent with that. Nothing has changed.”
So people in Telluride are still scratching their heads and muttering about this Tom F-cking Chapman guy. “How, after putting a bunch of money into a backcountry guiding program was this not even on the radar?!” said one local skier. “I mean, over the last three years they’ve been back there mapping everything out, all the slide paths, all the regular offenders and coming up with a plan to see what it would take to put a lift back there.”
“Then all the recent publicity, Powder magazine, Warren Miller, the prospect of a lift back there, maybe that’s what motivated Chapman to do this. There’s just so many moving parts and it’s still working itself out. But I think when it’s all said and done, those gates will be open. And it’s not like ski patrol’s gonna be up there on the ridge line monitoring it all day; I don’t see that happening. So people will continue to ski, for sure.”
Just today, in fact, Powder.com learned that a large party of skiers started from Ophir and climbed up some 3,500-vertical feet and to a prominent 13,000-foot plus ridge. They dropped into Bear Creek and made tracks right through the contested zone. Tom Chapman was nowhere to be seen.