Active: Federal lawsuit filed to restore separation of powers

Duke Bradford grew up in Nebraska, attended the University of Nebraska-Lincoln, and had law school in his sights. But the pull of Colorado’s mountains where he skied once a year as a child was stronger. His two seasons as a snowmobile guide and ski patroller sparked the idea for a rafting company, and in 1998, Duke opened Arkansas Valley Adventures (AVA). 

Today, AVA employs 250 people who provide a full slate of outdoor experiences that stretch throughout the year—something for every season. While proud of all its services, Duke considers the guided, multi-day river rafting wilderness trips AVA’s best offering. After 24 hours without cell phones, people begin to embrace their unplugged environment, connect with nature, and reconnect with themselves.

His guides are outdoor enthusiasts, including college students who spend their summers working in Colorado. Others have turned their passion for the outdoors into a lifestyle, working winters at ski resorts or as river guides in other states or countries. When they arrive in Colorado each spring, they work as often as they can during the busy season, almost always more than 40 hours a week.

With atypical workweeks that last only as long as the rafting season, they’re paid a flat fee per trip based on the federal minimum wage plus a fixed wage above that rate, not to mention gratuities from customers, grateful for their time spent becoming one with nature.

This arrangement has been a longtime boon and an industry standard for those with the expertise to navigate America’s wilderness for the benefit of millions of tourists every year.

A new federal rule, however, threatens to wipe out the entire business model for Duke and thousands of other outfitting firms like his in 2022, before the snow even melts.

Because Colorado’s rivers flow through federal land, rafting businesses depend on special use permits permitted by federal law. The outfitters pay the federal government a fixed percentage of service fees in exchange for a yearly lease to conduct rafting trips on lands owned or managed by the federal government.

The U.S. Department of Labor (DOL), in implementing an Executive Order signed by President Biden, has ordered all federal contractors to pay a $15-per-hour minimum wage, plus overtime, starting January 30, 2022. The rule’s absurdly broad definition of “contractors” wraps in more than a half-million private firms, including 45,000 that provide concessions or recreational services—like rafting outfitters—whose only ties to the federal government are special land use permits or licenses.

Unlike a shift worker at a manufacturing facility or a grocery store with regular hours, the new wage mandate simply doesn’t make sense for a workplace structure in which back-to-back rafting trips can take days. Nor do these workers qualify for any other federal benefits.

Without the flexibility to pay wilderness guides per-trip wages, employers will be left with little choice but to cut the length of trips, cut the guides’ hours, or radically raise fees. Bottom line, they must restrict access to the outdoors to only the very wealthy who can pay more, or else go out of business.

A rule that forces wage policy on anyone who uses federal land is bad enough. But the way it went on the books is corrosive to the rule of law.

Congress holds the authority over the scope of wage laws, has set clear limits, and has pointedly declined to mandate wages for employers who merely use federal lands. Under cover of a 1940s-era procurement statute, however, the president sidestepped Congress, displaced at least five wage-related laws, and gave the DOL policy-making power over anyone with any kind of financial relationship with the federal government.

An executive power grab to force a social agenda through federal contractors is chilling. It’s also unconstitutional. Neither workplace wages nor any other legislative policy should be subject to the whims of whoever occupies the White House.

Duke, and the nonprofit Colorado River Outfitters Association, are fighting back in federal court. They’re challenging the executive order mandating workers’ pay structure. A win will restore not only their right to pursue livelihoods free of undue government interference, but also the proper separation of powers between Congress and the president.

What’s At Stake?

  • Only Congress can make law setting minimum wages. Congress did not authorize the Department of Labor to change minimum wage laws, and the Constitution does not allow legislation based on the whims of whoever occupies the White House.
  • Government shouldn’t threaten livelihoods by imposing a one-size-fits-all employment model that is incompatible with unique work structures of different industries.
  • Federal procurement authority is abused when it’s used to set social policy. A president who imposes wage mandates on private workers whose only connection to the federal government is a special use permit can force any manner of social agenda on any American.

Case Timeline

December 07, 2021
Complaint
The United States District Court for the District of Colorado