October 23, 2009

Ms. Colleen Gadd
Mr. Don Klima
Jefferson County Open Space
700 Jefferson County Parkway, Suite 100
Golden, CO 80401-6018

Dear Ms. Gadd and Mr. Klima:

The Colorado Mountain Bike Association (hereinafter “COMBA”) is a not-for-profit organization dedicated to protecting and improving mountain biking on the Front Range– from Buffalo Creek to Coal Creek Canyon. The organization is committed to being an advocacy voice for all mountain bikers, building and maintaining trails, teaching proper trail use, and working with government on land management decisions.

This correspondence is intended as updated and revised formal comment to JCOS regarding its draft recommendation to update current regulations set forth by JCOS on October 6, 2009, and distributed to the public along with an invitation for comment regarding proposed regulation 6.4.1.C.25 (Failure to Yield Right-of-Way). The question posed therein was: Does this updated regulation and proposed language reasonably address user safety, yielding expectations and understanding of protocols for you or your user group as an equestrian, pedestrian or bicyclist?

COMBA agrees with the spirit of the proposed regulation; however, we continue to have specific concerns that we feel should be addressed to maximize safety for all trail users, as well as to create a clear and enforceable regulation. Therefore, we suggest the following language modifications to better achieve the objectives set forth in this process.

“Gain the Attention of the User”

COMBA’s concerns to the proposed language begin with the stated requirement that trail users “communicate and gain the attention” of another user (emphasis added). Language requiring any user to gain the attention of another is problematic since it makes it incumbent upon—and puts an affirmative duty upon—an approaching user to gain another’s attention– even at times when it may not be within their ability to do so.

JCOS’ proposed language fails to address the frequent and dangerous situation whereby users have made themselves unable to hear oncoming users and/or their attempts at communication intended to gain their attention– such as through the use of personal audio devices and headphones. Therefore, COMBA believes that a trail user who makes a good faith attempt to communicate, but cannot successfully do so due to the unavailability of the other user to receive their communication should be specifically exempted from liability under this regulation. Such an exemption not only helps to ensure that JCOS’ new regulation is legally sound, but also encourages safe behavior between all park users.

Users are Responsible to Grant Right-of-Way to Approaching Users Traveling in the Same Direction

As described to JCOS during the recent Improving Visitor Experience at Apex Park process, it is not an uncommon occurrence for some trail users to unreasonably withhold the right-of-way of an oncoming user from a different user group. To ensure safety, enhance user cooperation and clarify expectations between all groups it should therefore be documented within the regulation that users are required to allow passage after an approaching user has met defined prerequisites.

With COMBA’s proposed amendments (underlined) the Regulation now reads:

C25.b Passing On Natural Surface Trails:
At no less than fifteen (15) feet of approaching other trail users from any direction, slow to a walking pace (under 4 mph), communicate by attempting to reasonably gain the attention of the user being passed. If the user being passed cannot hear the communication due to the use of personal headphone or audio devices, no user violation shall be found against the approaching user. Pass single file at no more than five (5) miles per hour when oncoming traffic is clear. Stop when necessary to allow safe passage. Users are required to grant right-of-way to approaching users traveling in the same direction after all prerequisites set forth in this regulation have been met. Fine: $50.00.

ADDITIONAL COMMENT

Considerations for Lateral Distance

COMBA notes that the current revision to the yielding regulation no longer includes lateral distance between users as a consideration when yielding and passing, unlike those proposed by JCOS only three months ago. This is an important omission, as “natural surface trails” in JCOS vary greatly in width– technically including two-lane service roads that are over thirty feet wide used by maintenance vehicles. Presumably lateral distance was initially—and necessarily—included in recognition of the fact that as distance grows between users (where no unique safety factors exist), expectations for reasonable and safe passing behaviors change, because the proximity between users no longer gives rise to danger of collision. That is to say, yielding only comes into play when there is a question of reasonable safe passage, a determination of which should be strongly based on trail width (among other considerations).

Of course, it must be recognized that every yielding situation is different and presents a unique set of circumstances. COMBA appreciates that there are situations in which the highest level of precaution must be exercised by all visitors (i.e., when encountering or passing a horse, animal, child, elderly or handicapped visitor); however, these are unique situations and should be managed accordingly.

Enforcement of Yielding Regulations / DEEP Patrols

With the omission of reference to lateral distance (trail width) in JCOS’ revised yielding regulations, COMBA is concerned that the regulation may continue to be abused via enforcement. As reported to JCOS during the Public Forum in August 2008, citizens have serious and legitimate concerns regarding the Directed Education and Enforcement Program (DEEP) patrols, as well as the aggressive and hostile behavior displayed by at least one JCOS Park Ranger conducting them– as reported by multiple park users over several incidents.

DEEP patrols have been described as “zero-tolerance” operations by Director Schell, in which historically plain-clothed Rangers patrol very wide sections of natural surface trail (including 30’ wide service roads). Observations of this entrapment-based practice include a decoy Ranger non-verbally inviting passage by standing off-trail or walking on the wrong side to the extreme edge, ignoring call outs made in an effort to gain their attention. Subsequently, a second Ranger further down trail issues tickets for yielding infractions after cyclists—having believed to have reasonably and safely passed the decoy—continue riding past the first officer. Unfortunately, despite these concerns being raised at the Public Forum last year, DEEP patrols continue to be conducted in an unreasonable manner, in inappropriate locations– presumably targeting mountain bikers and thereby negatively affecting their trail experience. [Please refer to attachments A, B]

COMBA believes that zero-tolerance legal enforcement is an extraordinary measure that should be reserved for appropriate violations that rise to a level of unsafe use. We further believe that the current enforcement of etiquette standards primarily against a single user group is misguided and counter-productive, as it confounds “common sense” trail-use expectations, discourages cooperation between user groups, and ultimately compounds the perception of conflict on JCOS trails.

COMBA therefore requests JCOS to formally re-evaluate the DEEP program– specifically, by: A) providing better training for enforcement officers dealing with the public; B) utilizing educational warnings for etiquette infractions; C) focusing on park safety by issuing citations against violators and violations that rise to unsafe use; D) conducting patrols only on natural surface trails narrower than 6 feet where safety more reasonably becomes an issue in passing/yielding scenarios.

Conclusion

JCOS’ stated objective in changing this Regulation is to increase user safety and to clarify language. COMBA believes both objectives will be better met using the amendments proposed herein with an additional benefit of fostering cooperation and shared responsibility between user groups. We also believe achieving these important goals through improved educational efforts—utilizing resources both within and outside of JCOS—will most fairly and effectively improve visitor experiences for all users.

Thank you, once again, for the opportunity to opine on this very important matter affecting all trail users in Jefferson County Open Space properties.

Sincerely, on behalf of the Colorado Mountain Bike Association Board of Directors and our members,

Terry Breheny, President
Colorado Mountain Bike Association

C: Jefferson County District Attorney, 500 Jefferson County Parkway, Golden, CO 80401