President Biden’s disregard for the Constitution is hurting the outdoor adventure industry

December 17, 2021 | By BRITTANY HUNTER

“All nature is doing her best each moment to make us well,” Henry David Thoreau once wrote. This is a sentiment with which Duke Bradford, founder and owner of Arkansas Valley Adventures, tends to agree.

Since 1998, Duke has offered his patrons the opportunity to escape their busy city lives, disconnect from their smartphones, and experience the solace and tranquility only nature can provide.

Whether he is facilitating a whitewater rafting expedition or a rock-climbing adventure, he loves his work and the joy it brings to those who visit. But thanks to a new Executive Order—enforced through a Department of Labor (DOL) rule—Duke may not be able to provide the same types of therapeutic experiences for which Arkansas Valley Adventures has become well-revered.

As a child, Duke became intoxicated with the majestic Colorado mountains and their surrounding whitewaters during a family vacation. Growing up in the flatlands of Nebraska, he could scarcely believe such natural wonders existed. He knew then that he was meant to live where he could be surrounded by nature.

As he grew older and prepared to go off to law school, just as his father had done, he decided to take a year off and work as a ski patroller in Keystone. As the year came to a close, he couldn’t bring himself to leave.

Abandoning his legal pursuits, he started formulating a business plan that would allow him to earn a living doing what he loved.

As he explained:

“I wanted to stay in the mountains and make a go of it and see what we could do. There was a lot going on in the mountains at that time with tourism and such, and I’d fallen in love with recreational activities like rafting. So, I decided to try to stake a business in that industry.”

While he worked as a ski patroller, he crafted a business plan, which he always kept handy hoping to find potential investors to get his dream off the ground.

Eventually, he was able to raise enough money from people he encountered on the job for the bank to take a chance on him and his idea. He bought property down in the Arkansas River Valley and began turning his dream into reality.

Duke loves what he does, not only because he gets to fulfill his own dreams of working in the outdoors, but also because he gets to help other people.

In addition to helping his customers reconnect with nature, Duke has had the privilege of working with children with terminal cancer.

“I got an opportunity to take a nonprofit out of Aspen. They were taking children with terminal cancer. We had an opportunity for two summers to take them down the river. The excitement with working with not only those children but with the families that would come with them was profound. I mean, more profound than I thought it would be.”

And he isn’t just benefitting his patrons, he’s also creating jobs and offering opportunities to his 250 employees that allow them to earn money in a work structure that suits their unique lifestyles.

“A lot of the industry, they’re a migratory workforce. They travel from river to river throughout the country, throughout the continent and some to various places all over the world.”

Many of his guides are in college and come out for the summer, which is convenient for Duke because the majority of his business happens in July. Other guides are older and have dedicated their lives to the outdoor lifestyle. Moving with the seasons, some will come to Colorado in the winter and then move to Texas or even Costa Rica when the weather gets colder.

For his employees, the traditional 9-5 work model doesn’t make sense. Because many of the guides are seasonal employees, as soon as they arrive, they work as much as they can, almost always clocking in more than 40 hours a week. The guides are paid a flat fee per trip, based on the federal minimum wage, plus a fixed wage that is well above rate. Guides also often receive tips from their grateful customers.

The arrangement has been around for as long as Duke can remember, and the guides both understand and appreciate the nontraditional arrangement. They know their industry is unique, and they prefer it that way.

But on January 30 2022, all this may change.

President Biden signed an Executive Order calling for the DOL to require federal contractors to institute a $15 minimum wage, plus overtime, for all employees beginning January 30.

To be sure, neither Duke nor his employees are federal contractors, at least not in any traditional sense of the word. However, the new rule takes a broad interpretation of the word.

Because Duke’s business relies on the use of federal land, he must obtain special use permits. This means the outfitters pay the federal government a fixed percentage of service fees in exchange for a yearly lease on the federal land.

Given this detail, the federal government has now decided that Duke and his employees are federal contractors. But it’s not just Arkansas Valley Adventures. The new rule will impact more than half a million private firms, 45,000 of which are in the recreational industry like Duke.

The only ties these companies have to the federal government are the permits and licenses required to use federal land. Expanding the scope of what it means to be a federal contractor takes liberties neither the DOL nor the president have the authority to do. And when the president meddles in the private sector and mandates a minimum wage, he is choosing to ignore the constitutional protection of separation of powers.

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.

Beyond the egregious constitutional violation, the new rule will have negative consequences for the businesses impacted. The money for the increased wages must come from somewhere. To afford to comply with the new policy, business owners like Duke will be forced to make a difficult choice: cut employee hours or dramatically increase the costs to the customer.

Arkansas Valley Adventures guides often staff back-to-back rafting trips that require them to work consecutively for several days. Having to pay them overtime over a prolonged period just isn’t feasible.

This type of industry needs to pay wilderness guides per-trip wages. Without this freedom, both businesses owners and employees will suffer the consequences.

Duke is also considering eliminating the overnight trips altogether, something he really doesn’t want to have to do, as these trips have been rewarding for all parties involved.

“Those trips really capture the river because you get away from it. You unplug. Cell phones don’t work. We see a natural transition of people who are uptight their first day. They have to leave their phones behind. It takes them about 24 hours for it to sort of sink in that they don’t have a phone, and then there’s a little anxiety. But then by the second day, they’re relieved and they enjoy that time. It’s forced time. But when they do it, time and time again, we get that feedback that just being away from it all in a remote environment and unplugging has been so therapeutic,” Duke said.

He continued:

“People go to the extent of almost being emotional, where they reconnect with themselves and their family. So it’s an opportunity to do some really cool things well beyond the nature and the whitewater.”

These overnight trips mean a lot to Duke, and he’s not willing to give them up without a fight.

“There has to be some accountability. You just don’t get to come and just drop this. No discussion. No due process. I mean, that’s what was so upsetting to us. We’re not looking to get into a political fight. We certainly don’t have the means to do that, but at the same time, this is just an egregious reach.”

He continued:

“At some point you have to say, ‘When’s enough?’”

The Executive Branch is not allowed to reach beyond its constitutional scope. In this case, it has assumed the role of the Legislative Branch, creating laws when it has no authority to do so.

If the guarantee of separation of powers is allowed to be ignored at the whim of one branch, our Constitution stands in jeopardy. This is precisely why PLF is so committed to protecting it.

We will be standing by Duke and the other outfitters as they fight to uphold what has been promised to them in our Constitution.