The settlement of a lawsuit over the 1993 drowning deaths of two men in Kolob Canyon recognizes mistakes were made by everyone involved in the tragedy, according to lawyers on both sides.
The case was resolved Wednesday afternoon with the families of Kim Ellis and David Fleischer accepting an offer of $1.49 million of the $24.5 million they had sought from the National Park Service.Late last week, the Washington County Water Conservancy District also settled with the families for an undisclosed sum.
Family attorney Robert S. Clark said, "Although no amount of money could ever compensate for the losses and injuries suffered, this settlement is financially favorable and will provide long term security for the families and a solid beginning point for the young men who have suffered so much."
Ellis and Fleischer were leading an LDS Church youth group through a narrow slot canyon in Zion National Park in July 1993 when they were swept away by rapidly rising waters due to a release from Kolob Reservoir. The surviving adult and five youth members of the group were stranded in the canyon for four days.
Ellis' widow and seven children, Fleischer's widow and the six survivors filed suit in 1994 alleging the conservancy district and park personnel were at fault for not informing the hikers of the dangers from the release of water.
"The settlement recognizes that all parties involved made mistakes leading to the fatal Kolob Creek tragedy," said Scott M. Matheson Jr., U.S. Attorney for the District of Utah.
Had the case gone to trial, attorneys for the families were prepared to argue that despite inadequate notice from the conservancy district, park personnel were aware of the release of water from Kolob Reservoir and should have informed the hikers when they obtained their back-country permit.
Government attorneys would have responded that the group leaders should have called off the trip or selected a different route when they observed the high-water conditions and that they should have been equipped and trained to climb out of the canyon if necessary.
According to Matheson, public agencies should make "every reasonable effort" to provide necessary information to people who venture into high-risk areas but they cannot guarantee the visitors' safety.
"The primary responsibility for exercising care and securing personal safety remains with the visitors themselves," Matheson said. "Those who travel in rugged back country areas on public land must be properly trained an equipped. They must be careful in deciding whether to proceed under the conditions they encounter."
Clark's placed more emphasis on the role of the water district and park service, saying their knowledge of the water release should have been shared with hikers.
"This tragedy was caused by man-made and man-controlled hazards, well-known to both park and district management, with access already controlled by a permit and warning system that has been implemented in the park for years," Clark said.
He also noted that since the lawsuit was filed, Zion National Park officials have implemented additional written policies with respect to warning hikers of releases from Kolob Reservoir.
Where the two sides do agree is in their conviction that the settlement will set no precedent or otherwise impact visits to inherently dangerous wilderness areas. From the outset, the case had a limited scope because it involved a human-caused hazard, not a natural one, they said.
"It has never been the position of these families that the defendants should be responsible for naturally occurring hazards that would confront all back country visitors," Clark said.
Zion National Park Superintendent Donald A. Falvey echoed those sentiments, saying, "This case is unusual because the difficulty of the route was compounded by the artificial release of water into the Kolob Creek drainage."
He added, "We need to make it crystal clear to both new and seasoned back country users that there are inherent risks in wilderness travel. A wilderness hike is not just a walk in the park. Ultimately, the back country user bears the responsibility for safety."
While the settlements end the lawsuit, the case is not entirely closed. The Deseret News and other media organizations are questioning the conservancy district's decision to keep its settlement secret.
Under Utah's Government Records Access and Management Act, public agencies may not be required to reveal settlement negotiations but must disclose final settlements.
Similarly, in a 1987 case brought by the Society of Professional Journalists against Daggett County, U.S. District Judge J. Thomas Greene - who happens to be presiding over the Kolob case - ruled the public has a right to know the details of settlements that involve allegations of wrongdoing by public officials.
Greene's ruling later prompted other public agencies in unrelated cases to release settlements after originally refusing to disclose the amounts.
Washington County Water Conservancy District officials have refused to discuss the matter, referring all questions to their lawyer, Robert Wright, who has not answered or returned a number of phone calls from the Deseret News.