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Whose fault? A Utah canyon turns deadly

 

They set out on a bold hike that was meant to build character. Their hike will end as a case number in some climate-controlled courtroom, with lawyers arguing technicalities and trying to cross-examine the dead.

 

 

Survivors and the two women widowed by the expedition through Kolob canyon, Utah, have inventoried the hell they went through, their loss of life and property, down to the three pairs of designer jeans that the raging water swept away.

 

 

They have seen their wrongful death and damage claims for $24.5 million rejected by the federal government.

 

 

Now they are asking a federal court to determine blame. But the wider question they raise extends beyond the canyon walls that trapped the hikers, to touch anyone who wants to try a wilderness.

 

 

The Kolob canyon case could move society toward mandatory rescue insurance or competency testing for hiking permits; it could result in denied access to alluring yet treacherous public lands.

 

 

About the only aspects of the case not in dispute are the basic facts of what happened down in the maelstrom.

 

 

 

 

 

Flood in a slot canyon

 

 

They could have been just about anyone: three men and five teen-age boys - Explorer Scouts - from a Mormon church youth program in South Salt Lake, Utah. They may have been better prepared than many who set out to explore backcountry in the West.

 

 

Before taking on Kolob canyon, according to the survivors, they had camped together numerous times and practiced simple canyoneering techniques, hiking in streams and climbing rocks with the aid of ropes.

 

 

They were equipped to the extent of wearing poly-rubber wetsuits - scuba-diving skins - to insulate themselves for a hike in the chilly water of the creek canyon in southern Utah.

 

 

They had obtained a hiking permit from Zion National Park, the only stamp of approval there was to go after. Their leader, David Fleischer, 28 years old, had done the same hike at least twice before.

 

 

They even brought along inner tubes, since they planned to go tubing on the last day of what was to be a three-day expedition. They were that confident.

 

 

Already in their wetsuits, their other gear wrapped in plastic, on the morning of July 15 last year, the three men and five boys rappelled by ropes off the rim, down 60-plus feet of sheer sandstone cliff, into the confines of Kolob canyon. The canyon is a deep crack whose creek bends and flooded plunges ultimately feed into the North Fork of the Virgin River and Zion Park.

 

 

Quickly, they must have sensed that control was slipping away.

 

 

They had expected some water in the creek canyon; had expected that hiking the streambed would require continued rappelling down a series of waterfalls and past plunge pools.

 

 

But the water was too fast and too deep. Where they had expected it to be ankle-deep, it was up to their knees.

 

 

Down at the bottom between the slick vertical walls, all that water rushing and tugging at them must have been very loud; it is likely they had to half-shout at each other to be heard.

 

 

They started walking with the current, the survivors would later tell the Salt Lake Tribune. Fleischer knew where there might be some dry ground ahead, if the hikers could make it past a series of four waterfalls.

 

 

The first waterfall dropped off eight feet. Fleischer kept the lead, jump-rappelling over the edge. But a whirlpool at the base captured him. Hung on the rope, he had little freedom of movement, and the boys began yelling that they could see that his backpack strap had slipped around his neck, choking him.

 

 

Kim Ellis, 37, leaped in and managed to free Fleischer from the grip of the whirlpool, but Ellis himself banged his head on a rock and got sucked under. The third adult, Mark Brewer, a 35-year-old advertising executive from Salt Lake City, leaped in and managed to brace his feet on the bottom and wrestle Ellis and himself from the pool.

 

 

Thirty minutes of CPR and pleading encouragement - -Come on, Kim! You can make it!' - were futile. Ellis was dead.

 

 

The two surviving men determined to go on. They propped Ellis' body against a log and rigged a rope to lower the boys from the top of the falls. The first boy lowered was the dead man's 14-year-old son, Shane. The boy had a few private minutes with his father's body.

 

 

There was no place to rest and the stunned canyoneers struggled on. With rope, they managed to descend two more waterfalls. When they reached the fourth falls, they had been in the water two hours and had made only 50 yards of progress downstream. They had lost all but two of their backpacks and much of their rope. The fourth falls was taller, dropping 15 feet at once.

 

 

From the lip of the falls, Fleischer tested the force of the whirlpool at its base, tying a rope to his pack and throwing the pack into the pool. The pack got sucked under and could not be pulled free. Fleischer decided he had to try anyway. He wanted to swim the pack to shore where it could serve as a safety anchor for the others. He leaped in, and just when it seemed he had it handled, the pack slipped and the current sucked him under again.

 

 

There was a long moment as the others craned to peer down into the churning torrent. Fleischer didn't reappear. It fell upon Brewer to decide whether to stay with the boys or risk himself further by trying to save his friend. "It was very difficult," he was to say later. The boys were shivering with cold.

 

 

Brewer told the boys Fleischer must be dead. He backed them away from the dropoff and said there was no choice at all now, they had to wait right where they were and hope for rescue.

 

 

Just Brewer and the boys then, they pulled rocks from the stream and built up a small ledge they could rest on. When exhaustion overtook them, they slept piled on each other.

 

 

Waiting it out for five days and four nights, they sustained themselves on small rations of candy, raisins and oatmeal packets. The canyon was about 1,300 feet deep and so narrow that each day they got less than an hour of direct sun.

 

 

They prayed and sang hymns against the damp chill. They knew that sooner or later it would be noticed that they were overdue, and a search would begin. They had three matches and wasted two trying to light some driftwood for a signal fire.

 

 

Twice helicopters flew over the slot of sky above, and they heard searchers calling. But no one responded to their own shouts for help. They used their last match to ignite a glue-smeared inner tube, but they were too far down and the black smoke wasn't noticed. Late on the afternoon of July 19, like magic, the end of a bright orange rope flicked down into the pool in front of them.

 

 

They were rescued by the local search and rescue team, and people from the local sheriff's office and Zion National Park. A helicopter shuttle took them to Zion. Ellis' body was also recovered and winched out.

 

 

At least two of the survivors were treated at a local hospital for edema in their legs and feet, which had been brought on by the prolonged wearing of the tight wetsuits.

 

 

The survivors were Mark Brewer, who had inherited leadership of the expedition, and Shane Ellis, 14, Chris Stevens, 15, Rich Larson, 16, Mike Perkins, 17, and Josh Nay, who celebrated his 16th birthday on the rock pile while waiting for rescue.

 

 

Searchers working their way carefully up the canyon bottom didn't locate Fleischer's body until 11 days later.

 

 

 

 

 

The day's danger level

 

 

National recreation magazines, hiking-guide authors and experienced canyoneers have ventured second guesses, entering the debate about what went wrong in Kolob canyon. The expert view is that the boys and their three adult leaders were not well-enough prepared and died because they made mistakes.

 

 

Attorneys for the survivors and widows argue that the blame lies with the National Park Service and the Washington County Water Conservancy District, which operates a dam and spillway upstream of Kolob canyon.

 

 

In January, the survivors and relatives of the dead men filed 13 claims seeking a $24,556,813 payment for damages, injuries or death under the Federal Tort Claims Act, which says the federal government can in certain cases be held liable.

 

 

The Salt Lake Tribune obtained copies of the damage claims through the Freedom of Information Act. The claimants say Zion National Park officials failed to warn expedition leaders of unusually large flows of water being released into the canyon from Kolob Reservoir, an upstream irrigation project managed by the water district. Flows from the reservoir pass through the canyon to reach private meadows below.

 

 

The claims accuse park employees of negligence for issuing a backcountry hiking permit despite the doubly dangerous conditions, and say the agency "indeed, supported and encouraged the group's expedition into the canyon."

 

 

Park officials and the government accept no blame.

 

 

Lynn Collins, a regional solicitor for the Interior Department, determined June 17 that the federal government could not be held liable in this case.

 

 

 

 

 

"We regret that this unfortunate incident took place and that two members of the hiking party lost their lives," Collins wrote in a letter to the Salt Lake law firm of Kimball, Parr, Waddoups, Brown and Gee, which represents the survivors and families. "However, our review of the information in this matter indicates no evidence of negligence by any employee of the United States."

 

 

On Aug. 9, the survivors and widows sued the Park Service and the water district. The negligence suit, seeking a jury trial in U.S. District Court in Salt Lake City, charges that both agencies knew water levels were dangerously high and failed to adequately inform the hikers.

 

 

The claimants' attorney, Robert Clark, has predicted that, with full discovery in court, "you will see much more clearly (why the blame) for these tragedies falls on the federal government."

 

 

The hike actually began outside the national park in Kolob canyon, but it was to finish through 16 miles of the Virgin Narrows, the park's most famous and treacherous feature. The Virgin Narrows is the only hike in the park rated day-to-day for its danger, and hikers must obtain a permit before trying it.

 

 

Park officials maintain the church group was properly informed of the inherent dangers and difficulty of a Kolob canyon descent that would finish in the Virgin Narrows. On July 14, 1993, Park Service employee Rich Fedorchak issued Fleischer a backcountry hiking permit for the Narrows.

 

 

Because of the danger of flash floods, the park's visitor center posts the Narrows Canyon Danger Level - a measure of current depth, temperature and weather conditions in the Narrows. Fleischer's permit, say Park Service officials, was marked with a "high" danger rating. When the danger is measured as "extreme," park officials refuse to issue permits.

 

 

During periods of "high" danger, rangers can only recommend against expeditions; legally they cannot refuse a permit if other general requirements are met - hikers must have proper equipment and maps and agree not to build fires.

 

 

Ranger Fedorchak informed the church group that the hike would be "difficult" and "time-consuming ... But at no point did he tell them not to go," says Denny Davies, a park ranger and spokesman.

 

 

Challenge is an integral part of the backcountry experience, says assistant park superintendent Larry Wiese. "If a group showed up with a shopping bag of groceries and wanted to hike the Narrows, we would be asking them a lot about their experience and offer them a lot of information to make a rational decision. But they take on the personal responsibility."

 

 

The Park Service does not assess danger conditions in Kolob canyon, since it is remote, difficult to access and outside the park.

 

 

In fact, while the expedition survivors are suing the National Park Service, they never entered Zion National Park.

 

 

 

 

 

"We didn't know it at the time of the incident, but where they went into the canyon, where they died and where they were rescued was entirely outside the park's boundaries," says Davies. He says boundary lines were checked at the rescue scene using Global Positioning Satellite sensors.

 

 

The deaths apparently occurred on state of Utah and Bureau of Land Management property, where no permit is required.

 

 

 

 

 

Was it negligence?

 

 

Attorneys for the plaintiffs say the government was worried about liability even before the drownings in Kolob Creek. They cite a letter, written five months earlier by A. Scott Loveless, a Department of Interior attorney, that discussed how the government might be vulnerable.

 

 

The letter said that warning hikers about natural water increases, such as flash floods, is "useless' if there are no warnings about deliberate floods released by the water district dam.

 

 

According to the letter, when park officials asked about the timing of future water releases, the Washington County Water Conservancy District has given "only vague responses."

 

 

 

 

 

"These are issues ... that should be resolved as soon as possible in order to minimize the likelihood of actual tragedy," the letter says.

 

 

In addition, the lawsuit contends that two weeks before the drownings - from June 28 to July 2, 1993 - the water district drastically increased the flow out of Kolob Reservoir to 29 cubic feet per second. The plaintiffs say that is nearly 10 times the volume of water that is supposed to trigger notification that the creek could be dangerous to hikers.

 

 

The suit alleges, "Despite the unusually high and extremely dangerous levels of water being released, and despite prior knowledge of these releases, park officials issued the backcountry permit to the hikers without warning them of the risk. And in fact, said nothing to the hikers about the life-threatening conditions in Kolob Creek."

 

 

 

 

 

Second-guessing the expedition

 

 

Park Service and water district officials have said they will contest the suit. Interior Department lawyers, anticipating a long court battle, have asked Park Service officials not to discuss the controversial expedition.

 

 

However, veteran canyoneer and Kolob canyon explorer Dennis Turville, who has been contacted by government attorneys as a possible expert witness in the case, believes the expedition blundered.

 

 

Fleischer, the expedition leader, "barely had enough skills to get himself down there and had no business taking those kids in that canyon," says Turville, who led the first descent into Kolob canyon in 1978 and placed bolts that anchor ropes for rappelling the streambed waterfalls and ledges.

 

 

Turville says the water roaring in Kolob Creek would have been noticeable on the approach road, before the expedition dropped into the canyon.

 

 

 

 

 

"The leader had been there before so he knew what normal conditions looked like," says Turville. "You have to drive right over the creek on the way to the trail head so there's no excuse for even continuing from there."

 

 

Since the church group had canceled its hike twice before due to high water, Turville suspects there was an inclination to press ahead rather than turn back a third time.

 

 

At the canyon rim, Turville says, Fleischer should have rappelled in alone to assess the water flows - before taking the rest of the party down the cliff. After determining that the creek was too high, the group could have hoisted Fleischer out of the canyon - standard procedure on such descents, says Turville.

 

 

During news conferences after the rescue, survivors said the creek was only ankle deep when they started walking, but quickly became a rushing torrent.

 

 

 

 

 

"This canyon is fairly wide where they rappelled into it, so if the creek is four inches deep when it's running 20 feet across, you would have to figure it's going to be running a lot deeper and faster when the canyon narrows," says Turville. "But they kept going and pretty soon it was like toothpicks in a drainpipe."

 

 

Fleischer himself was so concerned about water levels in the canyon that he checked with park officials several times in advance of setting out, according to a church official. Brewer, the only adult to survive, says that once Fleischer got down into the canyon, he was angry that park rangers had not been clearer about the danger. When the men and boys found themselves in such surprisingly high water, Fleischer raged that it was "ludicrous' they had been granted a permit, Brewer told the Salt Lake Tribune.

 

 

Turville maintains that if the expedition members had been trained properly in whitewater rescue methods and technical climbing, they could have clambered out of the canyon before entering the deadly sandstone flumes.

 

 

 

 

 

"They didn't have the breadth of experience to know this stuff," he says. "But they could have gotten out of that canyon in several places using their shoelaces, if they had lost their ropes. Because they lacked common sense and the experience to be on such a difficult hike, now they are saying someone else should pay for it."

 

 

 

 

 

Putting it into dollars

 

 

Claims for financial compensation were filed by four of the five teen-age boys and Brewer.

 

 

The survivors say they suffer flashbacks, reduced ability to concentrate, post-traumatic stress syndrome, and physical discomfort from their prolonged exposure to cold temperatures and water.

 

 

The survivors each want $495,000 for such personal injuries, including the "emotional injury" from witnessing the two deaths, as well as compensation for lost camping and climbing gear - from a $5 water bottle to a $600 sleeping bag.

 

 

Claims also were filed by Fleischer's and Ellis' widows and six of Ellis' children. The women want $7.8 million each for the wrongful deaths of their husbands; each child is seeking $925,000.

 

 

Clark, the claimants' attorney, says he recognizes the $24.5 million request for damages "may appear quite large." Yet, he adds, "I'm not embarrassed about it because the law requires we assume the worst kinds of injuries."

 

 

Clark says the claims must be all-inclusive at the beginning of the legal process and the "extent of the exact injuries sustained by those who survived the event is still not absolutely clear."

 

 

 

 

 

Personal responsibility zones

 

 

The case has already gained such notoriety that Hollywood and TV networks are sniffing around. In Utah, where an estimated 70 percent of the population is Mormon, there has been discussion among church members about whether the lawsuit adheres to the teachings of the church.

 

 

Several church members wrote letters to the editor to the Salt Lake Tribune, criticizing the suit and saying the church stresses free will and personal responsibility.

 

 

The outdoor-recreation community is concerned that any attempt to hold public-land managers responsible for tragedy will cause a backlash; the easiest way for managers to block future lawsuits would be to declare land off-limits to recreation.

 

 

As wilderness recreation booms, the question is, who has liability when something goes wrong?

 

 

 

 

 

"The problem in our country is people's failure to take responsibility for their own behavior," says Charles Cook, director of the National Center for Wilderness Activities and author of The Essential Guide to Hiking in the United States. "What I see happening more frequently is, group leaders and individuals entering an area that requires skills they don't have and then they or the family sues."

 

 

Among related cases, in Yosemite National Park, a man successfully sued to require the Park Service to post a sign on the barren granite peak, Half Dome. The sign states the obvious, warning hikers not to stand on the peak during lightning storms.

 

 

In Alaska's Denali National Park, already this year, 26 climbers have required rescue. The Park Service is considering charging a new $200-per-climber fee to offset the $10,000 cost of each rescue. Park officials are also considering designating a "no rescue" zone in Denali: Climbers who cross the line are on their own.

 

 

 

 

 

"What's upsetting to me is to discover that I can no longer enter a particular area because it has been closed off after a fatality," says Cook. "My freedoms on public lands are infringed by people who were not aware of the risks involved. Most of these tragedies are avoidable."

 

 

While Park Service officials have reviewed policies, the impact of the Kolob canyon tragedy on backcountry access in Zion remains unsettled.

 

 

 

 

 

"We have not made any changes except to stress that to hike through any drainage that eventually comes into the park, people need to inform themselves about conditions outside the park," cautions park spokesman Davies. "This hike was not a Sunday stroll down Central Park and it is the hiker's ultimate responsibility to ensure safety."

 

 

At the very least, the tragedy in Kolob Creek serves as a warning to others setting out for the wilderness.

 

 

The expedition members simply did not take the hike seriously enough, says Turville.

 

 

 

 

 

"Why did a kid pack three pairs of designer jeans for a canyon like this?" he asks. "People watch Jeep commercials on TV and climbing is shown as a very sexy sport and everyone wants to go right out and rappel into a slot canyon. But hold the phone, folks. This is the real thing." n

 

 

 

 

 

Christopher Smith reports for the Salt Lake Tribune. Ray Ring is HCN's senior editor.