Adventure guide’s case against Labor Department goes to Tenth Circuit

September 29, 2022 | By NICOLE W.C. YEATMAN
Duke Bradford

The federal minimum wage set by Congress is $7.25. But the Department of Labor says Duke Bradford, an outdoor adventure guide in Colorado, must pay his guides $15/hour plus overtime—including on overnight trips—because the department considers Duke a government contractor.  

Why? In Colorado, the federal government owns over a third of the land. Duke, like many outdoor guides, pays the government for the right to take clients on federal land. According to the government, that makes Duke a government contractor—allowing the DOL to unilaterally set Duke’s minimum wage at $15, more than double what Congress approved.  

In oral arguments this week at the Tenth Circuit Court, Pacific Legal Foundation attorney Caleb Kruckenberg challenged the DOL’s unconstitutional rulemaking. The agency invoked the Procurement Act as a pretext for its wage rule, but Caleb pointed out the government is not procuring or supplying anything in Duke Bradford’s case. 

“It’s outfitters, not the government” who are hiring and providing guides, Caleb told the court.  

In a telling exchange with the government’s attorney, one of the judges seemed to press Caleb’s point. 

“The government is not supplying anything,” the judge told the government’s attorney. 

“Your honor, we think the government is supplying recreational services here,” the government’s attorney countered.  

The judge seemed unconvinced. “If someone wants to hire a guide, they’re not going to the government to say, ‘Supply the guide to me, please.’” 

The government’s attorney agreed but insisted the government was creating “the system” for supplying outdoor guide services, because the guides pay to use federal land.  

“I just have trouble applying the Procurement Act here,” the judge said in response. “Period. Because I don’t think they supply services, and I don’t think they procure services.” What the government is doing, the judge later said, “is allowing other private people to supply” guide services. 

After oral arguments, the judges thanked both attorneys for “very fine arguments” on each side. 

PLF first filed Duke Bradford’s case in district court last December. In February, the Tenth Circuit granted an injunction stopping the minimum wage rule from going into effect while litigation continues.  

For Duke, the outcome of this case will determine whether his business is allowed to survive. He works with seasonal guides—many of them college students—who take clients on overnight rafting trips. “Those trips really capture the river because you get away from it,” Duke says. “You unplug. Cell phones don’t work… Time and time again, we get feedback that just being away from it all in a remote environment and unplugging has been so therapeutic.” 

Guides make a set fee per trip, plus tips from grateful clients. Paying guides $15/hour and overtime would make Duke’s business untenable.  

“You just don’t get to come and just drop this,” Duke says of the wage hike. “No discussion. No due process. I mean, that’s what was so upsetting to us.”

As my colleague Brittany Hunter wrote when Duke’s case was filed: 

Only Congress holds authority over the scope of wage laws, and it has already declined to mandate wages for employers who merely use federal lands. But that didn’t stop the president from looking for loopholes. 

President Biden used a 1940s-era procurement statute to sidestep Congress, displace at least five wage-related laws, and gave the DOL policymaking power over anyone with any kind of financial relationship with the federal government. 

Unelected bureaucrats, like those in the DOL, have no businesses making policy, and the president isn’t allowed to ignore the separation of powers when it benefits his political agenda. 

Read more about Duke Bradford, et al. v. Secretary Martin J. Walsh, et al.