A federal judge in Colorado refused to block a Biden administration regulation increasing the minimum wage for federal contractors, including seasonal river guides who operate on public land.

U.S. District Court Chief Judge Philip A. Brimmer rejected a request from Arkansas Valley Adventures’ owner, Duke Bradford, to declare that President Joe Biden exceeded his authority. Instead, Brimmer determined presidents have wide authority to set policy for certain services supplied through the government. Crucially, he noted former presidents Barack Obama and Donald Trump relied on the same authority to issue their own executive orders modifying the contractor minimum wage.

“President Obama and President Trump invoked the Procurement Act as the proper vehicle for the Executive to regulate minimum wages paid to federal contractors, including outfitters and guides operating on federal land,” wrote Brimmer in a Jan. 24 order. “President Obama’s and President Trump’s executive orders and rules are historical precedent for President Biden.”

Pursuant to an executive order Biden issued in April 2021, the minimum hourly wage will be $15 for people performing work on contracts or “contract-like instruments” entered into after Jan. 30. A contract-like instrument would include the permits that outdoor recreation companies obtain from federal agencies to operate activities on federal land.

The directive is a continuation of the tug-of-war that has occurred over previous presidential administrations. Obama’s original executive order in 2014 raised the minimum wage for federal contractors above the congressionally-established minimum of $7.25 per hour (where it remains today). He cited his authority to do so under the Federal Property and Administrative Services Act, also called the Procurement Act.

Four years later, Trump authored his own executive order cutting out seasonal recreational workers from the wage rule, affecting horseback riding, mountaineering and river running operations.

Finally, Biden rescinded the Trump order, and the U.S. Department of Labor issued a final rule in November 2021 applying the $15 hourly minimum wage — and $22.50 wage for overtime — to river guide entities that operate on federal lands under special use permits.

Bradford asked Brimmer to grant a preliminary injunction against the rule. Although he currently operates along the Colorado and Eagle rivers, one of his permits will be up for renewal on March 30.

Bradford said the wage requirements will affect his operation financially. Currently, he hires at least 250 seasonal guides and pays them a trip salary, meaning a flat rate. With the new rule, he expected to halt overnight trips and limit employees to 40 hours of work. 

“We’ll hire more staff and go to a four-day workweek,” he testified in court earlier this month. “All these people live at our facility, so if we have to hire twice as much staff to do the same work, then we’ll need more housing. All of that will drive expenses up.”

Although Bradford added that none of his guides earned overtime pay, he acknowledged that most guides make at least $15 per hour currently.

In Brimmer’s view, the Procurement Act does give the president authority over services that companies, such as Bradford’s, provide. The judge cited prior instances of presidents using the Procurement Act to advance anti-discrimination policy, establish requirements that goods be produced in the United States, and place limits on federal prisoners who can perform federal contract work.

Most obviously, he added, Obama and Trump had used the same law to issue their own policies for the outdoor recreation industry.

“The rules implementing President Obama’s and President Trump’s orders confirm their administrations’ understanding that the Procurement Act provided sufficient authority for their actions,” Brimmer wrote.

The Department of Labor’s final rule indicated that the wage regulation would promote “economy and efficiency” in federal contracting by boosting morale, lowering turnover, and increasing the quality of services provided to the public. Based on those statements, Brimmer believed that the government had put forward a sufficient rationale for the change, and the regulation is neither arbitrary nor capricious.

“Here, there is no question that a president may rescind his, or his predecessors’, executive orders, and a court may not review such discretionary action,” Brimmer concluded.

The Colorado River Outfitters Association, which represents 50 outdoor recreation companies, is also a plaintiff to the case. Because it was unclear how the new wage rule would affect the association itself, Brimmer did not include CROA in his analysis.

The outdoor recreation industry adds almost $10 billion to Colorado’s economy and employs 119,000 people, according to the U.S. Bureau of Economic Analysis. The Department of Labor estimated that 327,000 contract workers will see an increase in pay from the new rule.

The case is Bradford et al. v. U.S. Department of Labor et al.