“All of nature is doing its best every moment to do us good,” Henry David Thoreau once wrote. It’s a sentiment Duke Bradford, founder and owner of Arkansas Valley Adventures, tends to agree with.
Since 1998, Duke has offered its customers the opportunity to escape their hectic city life, disconnect from their smartphone and experience the comfort and tranquility that only nature can offer.
Whether he leads a whitewater rafting expedition or a rock climbing adventure, he loves his job and the joy it brings to those who visit him. But thanks to a new Executive Order – enforced by a Department of Labor (DOL) rule – Duke may not be able to provide the same types of therapeutic experiences that Arkansas Valley Adventures has become much revered for.
As a child, Duke got drunk on the majestic Colorado Mountains and surrounding whitewater on a family vacation. Growing up in the plains of Nebraska, he found it hard to believe that such natural wonders existed. He knew then that he was meant to live where he could be surrounded by nature.
As he got older and prepared to pursue law school, just like his father had done, he decided to take a year off and work as a ski patroller at Keystone. As the year drew to a close, he couldn’t bring himself to leave.
Giving up his legal activities, he began to formulate a business plan that would allow him to make a living doing what he loved.
As he explained:
âI wanted to stay in the mountains and try and see what we could do. There was a lot going on in the mountains back then with tourism and the like, and I had fallen in love with recreational activities like rafting. So I decided to try and take a business in this industry.
While working as a ski patroller, he developed a business plan, which he always kept handy in hopes of finding potential investors to make his dream come true.
Eventually, he was able to raise enough money from the people he met at work for the bank to take a chance on him and his idea. He bought a property in the Arkansas River Valley and began to turn his dream into reality.
Duke enjoys what he does, not only because he fulfills his own dreams of working outdoors, but also because he helps others.
In addition to helping his clients reconnect with nature, Duke has had the privilege of working with children with terminal cancer.
âI had the opportunity to take a nonprofit out of Aspen. They were taking children with terminal cancer. We had the opportunity for two summers to take them down the river. The excitement of working not only with these children, but also with the families that would accompany them was deep. I mean, deeper than I thought.
And it doesn’t just benefit its clients, it also creates jobs and provides opportunities for its 250 employees that allow them to earn money in a work structure that suits their unique lifestyle.
âMuch of the industry is migrant labor. They travel from river to river all over the country, across the continent and some to various places around the world.
Many of his guides are in college and going out for the summer, which is handy for Duke as the majority of his business takes place in July. Other guides are older and have dedicated their lives to the outdoor lifestyle. As the seasons go by, some will come to Colorado in the winter and then move to Texas or even Costa Rica when the weather gets colder.
For its employees, the traditional 9-5 work model does not make sense. Because many guides are seasonal employees, upon arrival they work as much as they can, almost always logging more than 40 hours per week. Guides are paid a flat rate per trip, based on the federal minimum wage, plus a fixed salary well above the rate. Guides also often receive tips from their grateful clients.
The arrangement has been around for as long as Duke can remember, and the guides both understand and appreciate the non-traditional arrangement. They know their industry is unique and they prefer it that way.
But on January 30, 2022, that could all change.
President Biden signed an executive order calling on the DOL to require federal contractors to institute a minimum wage of $ 15, plus overtime, for all employees effective January 30.
Granted, neither Duke nor his employees are federal contractors, at least not in the traditional sense. However, the new rule takes a broad interpretation of the word.
Because Duke’s business relies on federal land use, he must obtain special use permits. This means that outfitters pay the federal government a fixed percentage of the service charge in exchange for an annual lease on federal land.
In light of 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 businesses, including 45,000 in the entertainment industry like Duke.
The only connections these companies have with the federal government are the permits and licenses needed to use federal lands. Expanding the scope of what it means to be a federal entrepreneur takes liberties that neither the DOL nor the President have the power to do. And when the president interferes with the private sector and imposes a minimum wage, he chooses to ignore the constitutional protection of the separation of powers.
Only Congress has authority over the scope of wage laws, and it has previously refused to impose wages on employers who simply use federal land. But that hasn’t stopped the president from looking for loopholes.
President Biden used a 1940s government procurement act to bypass Congress, move at least five wage laws, and give the DOL the power to make policy over anyone with any financial relationship with the federal government .
Unelected bureaucrats, like those in the DOL, have no business making policy, and the president is not allowed to ignore the separation of powers when it benefits his political agenda.
Beyond the blatant constitutional violation, the new rule will have negative consequences for the businesses affected. The money for the increase in wages has to 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 costs for the customer.
Guides at Arkansas Valley Adventures often run back-to-back rafting trips that require them to work consecutively for multiple days. It is simply not possible to pay them overtime over an extended period.
This type of industry has to pay salaries per trip to nature guides. Without this freedom, business owners and employees will suffer the consequences.
Duke also plans to do away with overnight trips altogether, which he really doesn’t want to have to do, as those trips have been rewarding for all parties involved.
âThese trips really capture the river because you get away from it. You unplug. Cell phones do not work. We see a natural transition of people who are tense on their first day. They have to leave their phones behind. It takes them about 24 hours for it to sink into the fact that they don’t have a phone, and then there’s a little anxiety. But on the second day, they are relieved and they take advantage of this moment. It is time forced. But when they do, time and time again, we get this feedback that just being away from it all in a remote environment and unplugging has been so therapeutic, âsaid Duke.
âPeople go to the point of being almost emotional, where they reconnect with themselves and their family. So this is the opportunity to do really cool things far beyond nature and living water.
These overnight trips mean a lot to Duke, and he’s not ready to give up on them without a fight.
âThere has to be some accountability. You can’t come and let it go. No discussion. No due process. I mean, that’s what was so upsetting to us. We are not trying to get into a political fight. We certainly don’t have the means to do it, but at the same time, it’s just huge reach. “
âAt some point you have to say, ‘When is that enough? “”
The executive power is not allowed to go beyond its constitutional scope. In this case, it has assumed the role of legislative power, creating laws when it does not have the power to do so.
If the guarantee of the separation of powers can be ignored at the whim of a branch, our Constitution is threatened. This is precisely why PLF is committed to protecting it.
We will stand with Duke and the other providers as they fight to live up to what they have been promised in our Constitution.