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June 2011

Risky Business

This spring one Hudson River outfitter faces charges of reckless endangerment. Are questions about white-water rafting safety tarnishing the image of an important Adirondack industry?

On the morning of Thursday, August 12, 2010, a Georgia resident named Robert Carson and his daughter Savannah intended to take a trip down the Indian and Hudson Rivers. They paid Hudson River Rafting Company about $80 each, expecting to be passengers in a guided raft. But according to a Hamilton County grand jury indictment, the outfitter booked more people than it could fit into rafts that day. At the river’s edge, company owner Pat Cunningham persuaded the Carsons to attempt the remote, 17-mile, intermittent Class II–III route themselves in an inflatable kayak, even though he knew that the pair had no white-water experience. They capsized their ducky in the second rapid and eventually caught a ride in an overloaded raft, which also flipped. The trip ended after only three miles.

In newspaper accounts Cunningham has disputed this characterization of events and pleaded not guilty to a charge of reckless endangerment. He was scheduled to go to trial in Hamilton County Court as this magazine was going to press.

Cunningham has also pleaded not guilty to a second count of reckless endangerment and three counts of endangering the welfare of a child for, two days earlier, launching a group of children and counselors from Camp Morasha, a Pennsylvania-based camp for Orthodox Jewish youth, in rafts with “an insufficient number of guides,” according to the indictment. A raft piloted by Cunningham reportedly fell behind the “bubble,” an hour-and-a-half cushion of water re­leased upstream from Lake Abanakee to make the Indian and Hudson navigable during otherwise low water. Having lost that push, the party’s boat dragged. Several campers got out and hiked to a road on a railroad bed, while three girls finished the last, slowest leg of the trip with Cunningham, “physically exhausted and after the defendant had failed to provide sufficient food or drink,” the indictment alleges.

If it seems unusual that a handful of misdemeanors would proceed to grand jury and trial, it is. The minor charges could be addressed by payment of a fine of a few hundred to a thousand dollars each. But the case is complicated by more than the particulars of two summer adventures gone wrong: It represents a reckoning decades in the making, and a turning point in attitudes on the river. It has also exposed a rift in the tight-knit fraternity of raft guides. At a time when Adirondack rafting safety standards are—with exceptions—higher than they’ve ever been, local officials and other outfitters are concerned that bad press could tarnish an economically important activity.

Cunningham, who is in his early 70s, is a legend on the Upper Hudson. A native of North Creek, he and a couple of paddlers from Maine and Ontario introduced commercial rafting to the river’s most dramatic section, the Hudson River Gorge, 33 years ago. The trip begins on the Indian River beneath the Lake Abanakee dam. It enters roadless wilderness after three miles, where it joins the wider Hudson. That river shoots through canyons and—in high water—a steady succession of Class III–IV and occasionally V rapids to North River. The thrill and scenery make the gorge one of the best white-water trips in the East, and 24,000 paying customers traveled through it last year.

Hudson River Rafting Company, founded in 1979, is the oldest white-water outfitter in the Adirondacks, and one of the largest. It runs trips on the Black, Moose and Sacandaga Rivers and has broken in an uncountable number of guides, some of them the best in the business, and several who went on to start their own companies. For Cunningham’s daring, athleticism and entrepreneurship (he was an Olympic downhill hopeful and established several ski shops in the Adirondacks) he is lionized. Adirondack Life in 1988 called him  “dauntless” and quoted his mother as saying, “It would take ten men and a team of horses to keep him down.” But as the industry he founded has grown, some rafters have come to view his risk-taking as a liability.

Andrea Reilly, a guide who once worked for Hudson River Rafting Company and now lives in Colorado, said the charges against Cunningham have been long coming. She quit the company because she felt its practices were unsafe, and she did not want to be accused of negligence. Reilly said she witnessed an unlicensed guide-in-training required to solo-pilot rafts of customers, customers in boats with no guide whatsoever, plus inexperienced customers sent downriver in inflatable kayaks.

Several other rafters did not want to be identified because they are fond of Cunningham, feel indebted to him for their start in the business, or because they fear being blackballed for criticizing a fellow rafter—guides often eat, drink and board together during the season, developing deep bonds. Still, they said they have for decades experienced or seen similar situations, including rafts captained by trainees, and customers sent guideless in smaller boats in spring, when cold and faster water shrinks the margin for error. These incidents seem to be limited to the Hudson; by all reports Hudson River Rafting Company uses experienced guides on the Moose and Black Rivers, where rapids are more difficult.

Reilly said she hopes Cunningham will face consequences for endangering rafting guests. “He has made the Hudson look bad for years by providing such negative experiences.”

Neither Cunningham nor his attorney, Joseph Brennan, of Glens Falls, returned calls seeking comment for this article. Brennan’s secretary said it’s the lawyer’s policy not to discuss cases in advance of a trial. Hamilton County District Attorney James Curry was also reluctant to talk strategy, but he said he’s assigned a higher-than-usual importance to the misdemeanors because of “legal and factual issues.… Putting somebody down that river with no experience is really not good.” Observers expect Cunningham to argue that rafting is an activity with inherent danger—customers sign a release of liability in which they assume all risk, “even if arising from … negligence”—and mistakes and accidents should not be subject to criminal prosecution. This appears to be a new question in New York State criminal law, and it might proceed to a higher court.

There might also be a question whether state regulations require a guide in every raft, or if a guide in a group of multiple boats satisfies the law. Department of Environmental Conservation (DEC) rules state, vaguely, “The business of guiding means providing services for hire whereby a guide directs, instructs or aids another person in … rafting.” Lawyers could disagree on what that means. But whatever the court decides, nothing will make it prudent to send uninitiated paddlers through slapping waves and multi-foot drops unchaperoned.

It’s unclear how often Hudson River Rafting Company launches a boat without a state-licensed guide aboard. The 10 other outfitters on the Upper Hudson are on record as disavowing the practice. But it’s difficult for a customer to divine this difference until he steps into a raft. Each company has an attractive Web site with testimonials from exhilarated clients and photographs of grinning people splashing through foam. There is no Consumer Reports or system to rate criteria such as guide-to-customer ratio, years of experience, quality of equipment or safety record.

“I think it’s hard for people coming from out of the area to differentiate. I don’t even know what to tell you to be honest with you,” said Peter Burns, owner of Beaver Brook Outfitters, in Wevertown, and president of the Hudson River Professional Outfitters Association. “As a business owner I think we run really good trips. I get frustrated sometimes when folks may call two or three different outfitters and may choose one that I don’t think does as good a job as we do.… Talking to local folks is probably the only true way to get good information.”

Another thing to look for is membership in the Hudson River Professional Outfitters Association, which has a code of conduct above what is required by the DEC. Founded in the mid-1980s, the association recently instituted a cutoff: members agree not to run the gorge when the water level is 10 feet or higher. At that extreme, which can occur in spring following a big rain on mountain snowpack, the Hudson becomes an almost featureless roar of brown water, and people who get separated from their boats are at risk of shooting through successive rapids before finding an eddy in which to seek rescue.

The association requires a New York State–licensed guide in every boat. And members pledge to conform to standard safety measures such as carrying first-aid and hypothermia kits on each trip. Every raft must have a throw bag (a rope to toss to hard-to-reach “swimmers”). Customers must be supplied with commercial life vests, wet suits in cold weather, the option of helmets, and a pre-trip safety talk that describes how paddlers can avoid becoming foot-pinned by riverbed rocks, getting held under by the current, and other perils of getting flipped, sucked or bounced into the river, incidents that are not common but always a possibility.

Additionally, some companies follow principles of their own. Beaver Brook Outfitters and a handful of others, for example, won’t run the gorge at even nine feet; they offer alternative trips downriver of North Creek, where the rapids are less severe and remote. Several don’t allow a guide to command his own boat just because he has a license and the minimum requirement of five trips through the gorge under his belt. “There is no magic number of trips,” said Bob Rafferty, owner of Adirondac Rafting Company, based in Indian Lake. “I guess I equate it to a driver’s license. You can certainly get your driver’s license but I’m not so sure I’d hire you as a taxi driver in your first week. We have quite a few guys who train for several years before they’re comfortable and we’re comfortable.”

“Several guides, after five trips, I didn’t think they were ready,” agreed Wayne Failing, owner of Middle Earth Expeditions, of Lake Placid. “Several have taken 10 or 15 and I have given one trainee as many as 25 trips down the river. And I looked at her and said, ‘You’re just not good at this. I’m not going to sign this piece of paper saying you’re competent in the field. Go into another line of work.’ ”

The Professional Outfitters Association has 10 members—every company on the river except Hudson River Rafting Company, which opted out two years ago. The organization removes fallen trees and other hazards from the current, works with forest rangers to develop evacuation plans, and negotiates with the town of Indian Lake to set the number of customers who can go through the gorge each year. The town sells the association a fixed number of “slots” (1,000 daily slots at $56 each per year). In return a town employee opens a sluice in the Lake Abanakee dam around 10 a.m. on weekends and specified days, and the town lets rafts launch below the dam. For the past two years Hudson River Rafting Company has put in from its own land and ridden the bubble for free. However, the Indian Lake town finance officer said the company includes the town in its insurance policy, just as the association’s companies do.

The white-water rafting business got going in Maine three years before it reached the Adirondacks. For a decade or so, Maine guides simply had to meet the approval of the local game warden to run a raft. Then, around 1986, a standardized test was implemented. “A big reason why our department stepped in to regulate that was because of safety not being up to par. There were a lot of incidents on the [Kennebec],” said Corporal Aaron Cross, who oversees rafting for the Maine Wardens Service. Maine now has one of the most rigorous white-water licensing standards in the country.

To earn a basic license a Maine guide candidate must be certified in first aid and CPR, pass oral and written exams, and undergo a minimum of seven days of instruction in river etiquette, white-water safety, local geography and river characteristics, including at least 20 on-water training runs. On those trips the trainee is in charge, and fellow applicants act as passengers. The runs are documented on standardized forms supplied by the Wardens Service.

New York requires only five training runs down the river for which a license is being sought, and the applicant does not have to be in charge of the craft. Like Maine, New York mandates first-aid and CPR certificates plus passage of a written exam. The major variable is how Red Cross Water Safety classes are conducted: applicants can take a DEC-approved “equivalent” course, and most of the outfitters, including Hudson River Rafting Company, oversee their own version.

“Were the standards to be raised across the board, there would be a lot of people weeded out,” said one Hudson guide who requested anonymity. He claimed that some guides are schooled inadequately and then rubber-stamped without documentation of training runs, a statement that was supported by another guide, a graduate of the Hudson River Rafting Company course. The two disagreed on the effect: the first said if guides get poor training they form careless habits like tailgating, spinning through rapids and giving glib safety talks; the second said that 95 percent of them take the work seriously anyway and turn out to be quality guides.

The New York State Outdoor Guides Association (NYSOGA) and Hudson River Professional Outfitters Association say New York sets the right benchmark for an entry-level guide, if the guidelines are followed. “The framework for the guides’ licensing was very carefully thought out. It was arrived at with a consensus between existing working guides and the DEC, who wanted to see a program of high professional integrity and entry-level proficiency with the protection of the general public in mind,” said Wayne Failing, who represents white-water guides on the NYSOGA board. “The training that each individual gets really pertains to the character of the person who’s training them. I know people who would just sign the paper and not do any training at all, and that’s probably how we got to where we are today. Ten out of 11 outfitters [on the Hudson] believe in strong training standards and do a really good job of investing in training and staff.”

“What’s currently there, if it’s enforced, it works,” added Bob Rafferty. “If you get too much bureaucracy involved it gets very cumbersome.”

In Maine a warden is almost always present at a major launch. Corporal Cross said he has come to know most rafters personally, and unlicensed guides are not an issue in Maine. Hudson guides say that DEC forest rangers have begun in recent years to check licenses randomly at take-outs a couple of times a season. As for on-river conduct, as a practical matter, once hundreds of customers are in the current, what happens is visible only from other boats. It’s not clear whether the DEC ever checks how outfitters conduct water-safety courses.

The DEC refused to respond to multiple inquiries for this article. The agency can take steps to revoke a guide’s license when it believes its rules have been violated, but a guide can protest and request a hearing. If Cunningham were barred from the profession, it would not affect his ability to run a company. After the outfitter Hudson Whitewater World experienced three deaths in four years in the early ’90s, the DEC researched whether to require outfitters’ licenses, as Montana and Maine do, but no action was taken. In two of those deaths investigators found no fault; the company was fined $250 in the third fatality, a 26-year-old woman thrown from a raft piloted by an unlicensed person.

Risk has its appeal. In the 1970s, ’80s and much of the ’90s the romance of riding cold torrents through the Hudson River Gorge earned guides a reputation as strong, fearless and even reckless. Their calendar was set by spring snowmelt and fall rains. “Your weekend groups were mostly guys, men in their mid-20s, mid-30s coming up for a real high-adrenaline trip,” Peter Burns said.

Big-water adventure is still available, and raft guides are still some of the most impressive people working in the Adirondacks—a combination of athlete, woodsman, tour guide and historian. But now they also cultivate a reputation as safe, professional and well-equipped—especially since 1997, when dam releases were permitted in summer, opening a tamer Hudson to a new market: kids. “The demographic has definitely changed. Summer now is our busiest time of year and it’s a family type of trip, and that’s how most of the outfitters are marketing it,” Burns said.

The current court case stems from the summer trade, which has a lower tolerance for the unexpected. April–May mishaps that have resulted in hypothermia, resuscitation and serious injury have not attracted the same attention.

Under any system there will be fatalities: people panic, suffer heart attacks, some drown, and in most cases no fault can be laid on anything but chance. Maine, where an estimated 65,000 people pay to raft per year, has experienced half a dozen deaths over the past 15 years, a tally officials there cite as evidence of guides taking safety standards seriously. There has been only one commercial rafting death on the Hudson in that same time span. New York State keeps no statewide figures but judging by private estimates and newspaper accounts, numbers here are comparable to Maine’s.

“Rafting’s got an amazingly good safety record compared to other outdoor activities, and that shows you the level of professionalism that’s out there. I think if you had 25,000 people skiing a year you could add up the injuries and I’m sure they’re higher than the rafting program,” Bob Rafferty said.

Thousands of people will continue to stream down North Country rivers simply because it’s worth doing. It’s fun, it’s challenging, and it’s the best way—sometimes the only way—to see some of the wonders of the Adirondack interior. “For some people it’s obviously the most ad­venturous thing they’ve ever done. That’s what makes the job so rewarding, particularly with the kids,” Rafferty said.

Rafting season begins Saturday, April 2. Guides—transitioning from ski-resort jobs or college, or weekending from 9-to-5 careers—hope the winter’s heavy snows will liquefy into pushy rivers. They look forward to the rush more than anyone. At pay of $75 to $100 per trip, plus tips, most of them work for love more than money. “The guides have their own subculture. They may be scruffy-looking but they really take it seriously,” said District Attorney James Curry. “I go down the Hudson at least once a year. I just pay my fee and take my ride. I love that river.”

 

 

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One Response to “Risky Business”

  1. Adirondack Life Blog Archive » A Good Year at the IRMA Awards Says:

    [...] Thill took gold in the Public Issues category for “Risky Business” (May/June), about allegations of unsafe practices at an Adirondack white-water rafting company. [...]