New York kept the owner of Hudson River Rafting Co. on its list of 2,500 licensed outdoor guides, despite two charges against him of reckless endangerment and a dozen other tickets citing his guides with unlicensed whitewater trips over the past five years.
That's because New York — unlike many states, the National Park Service and the U.S. Forest Service — regulates the guides themselves, not the companies. That focus, critics say, allows companies to continue operating even when their guides have endangered any of the thousands of outdoors-lovers who engage their services.
In addition, New York rarely revokes the licenses of guides.
In one deadly case this fall, a Columbus, Ohio, woman drowned on one of the company's Adirondack whitewater trips headed by licensed guide Rory Fay, 37. Fay was charged with criminally negligent homicide, accused of rafting drunk when he and client Tamara Blake, 53, were thrown into the rapids of the Indian River on Sept. 27. Her boyfriend was also on the boat.
Meanwhile, owner Patrick Cunningham again faces reckless endangerment charges after he allegedly left to fend for themselves a raft of clients he was personally guiding this spring. The New York attorney general has since shut down his rafting business, and the state subsequently suspended Cunningham's and Fay's guide licenses.
On a whitewater trip just a month earlier, on Aug. 26, 2012, two Hudson River Rafting clients were put into an inflatable kayak when its guided rafts were full. They capsized twice in 15 minutes.
"I began hitting rock after rock in the rapids and suffered significant bruising and cuts to my legs," said Richard Belson in a court affidavit. "At one point I was dragged under the water by the current and had great difficulty getting back to the surface."
Cunningham and his lawyer Jason Britt have challenged the court-ordered shutdown but declined several requests to discuss the case. An early Adirondack rafting guide, he has taken thousands of clients down the Hudson over three decades. He and Fay denied the criminal charges. Whitewater kayakers often ride the rapids on their own, without guides.
Blake drowned despite wearing a flotation vest and helmet.
In other parts of the U.S., authorities focus on the companies, not the individual guides, according to David Brown, executive director of the American Outdoor Association in Knoxville, Tenn. He predicted New York will change its approach now.
"(New York) regulated the guides, not the companies," Brown said. "The guide can make a mistake. The company can continue to operate. That's a unique situation."
A survey by the Outdoor Foundation showed 3.8 million Americans went rafting in 2011. As many as 5,000 U.S. outfitters provide guide services around the country, ranging from day hikes to weekslong wilderness adventures. Brown said recurring problems at guide services elsewhere would trigger complaints from other outfitters who don't want the shared black eye.
At San Juan Mountain Guides in Colorado, which has special permits to operate in several national forests and parks, owner and director Nate Disser said that there's no state guide certification like New York's, and that the company bears the responsibility for what they do.
"We have to prove our guides meet some sort of minimum standard" to federal authorities, he said. The company has its own manuals and training and is credentialed by the American Mountain Guides Association.
"Look for guides or services that have both experience and credentials. Been there and done that, so to speak," Disser advised. His company requires clients to sign forms assuming inherent and uncontrollable risks like bad weather, lightning or rock and ice falls, but provides the technical expertise to manage that risk, he said.
Brown and several New York outfitters familiar with the Hudson River rafting case suggested ways for clients to check out guides beyond government permits, including the Internet. On sites with customer reviews, they said, recurrent complaints should be a red flag, though any service is likely to have one or two disgruntled customers.
TripAdvisor recently showed 28 reviews of Hudson River Rafting Co., with nine writers saying their trip was excellent and 17 saying theirs was terrible. Four comments weren't posted until after the drowning.
Adirondack guides said their state credential, at best, is a starting point.
"My honest opinion, as an outfitter, is word of mouth," said Peter Burns, owner of Beaver Brook Outfitters, another rafting company that runs trips in New York's north country. "Get a recommendation from someone."
Cunningham's issues were known among rafters and others in the Adirondacks. He split from the Hudson River Professional Outfitters Association in a 2010 disagreement over whether licensed guides had to be onboard rafts. State Department of Environmental Conservation records showed Hudson River Rafting staff were ticketed a dozen times from 2007 to 2010 for guiding clients without valid licenses.
Misdemeanor charges against Cunningham for reckless endangerment were conditionally adjourned by a judge, but a prosecutor reopened the case this year. Those charges in 2010 stemmed from inexperienced clients who capsized in an inflatable kayak and young campers allegedly rafted without sufficient guides.
New York's DEC revoked no guide licenses in the past year, while receiving five complaints, spokeswoman Lisa King said. Cunningham's and Fay's licenses will be revoked if it's determined they broke applicable law, she said.
Asked why Cunningham kept his license through years of trouble, the agency didn't reply.
"Most of your reputable guides belong to professional organizations," said Sonny Young, whose Adirondack Foothills guide service out of Saranac Lake includes hunting, fishing and canoeing. An officer of the New York State Outdoor Guides Association, he said that group has a code of ethics that includes truth in advertising and obeying the laws and game limits.
"With guides that are professional, they'll ask you to sign a waiver, a medical release form because they want to know what your health conditions are, and they want you to know there are inherent dangers of going into the field," he said.
"Anybody who just takes your money at the trailhead, without some kind of safety talk, who doesn't let you know they're insured, that may be suspicious."