Judge S. Peter Feldstein told the defendant: “My goal in this matter, as I said at the beginning, was to affect how you do business. Now, I understand, Mr. Cunningham, through your attorney, that you do not feel that you’ve committed any crimes and you’re perfectly within your rights and you’re innocent before this court, but I want to be sure you understand that if you engaged in the behavior alleged in the indictment, I have no doubt that you committed crimes.”
The judge was referring to two misdemeanor charges of reckless endangerment related to whitewater rafting. On August 10, 2010, Cunningham guided a raft trip for girls from Camp Morasha, an Orthodox-Jewish youth camp in Pennsylvania. The indictment accused him of providing “an insufficient number of guides” and allowing a raft to fall behind in the Hudson River Gorge, causing the children to become exhausted. Two days later the outfitting business he owns, Hudson River Rafting Company, launched two inexperienced customers from Georgia into the continuous intermediate-level rapids of the Indian River in unguided inflatable kayaks. The father and daughter overturned several times in three miles before abandoning the trip and walking back to the put-in. Nobody got hurt. But authorities are trying to leverage the two incidents in order to halt to what they characterize as an outlaw culture at Hudson River Rafting Company. The case took on new weight after a customer drowned last fall. Now New York State Attorney General Eric Schneiderman has filed a separate suit to shut down the business.
When the 2010 charges first went to a Hamilton County grand jury, they were tossed out because the judge found fault with some of the evidence. Then District Attorney James Curry had shown the grand jury videos and invited other raft guides to describe what it’s like to paddle the Indian River to its confluence with the upper Hudson and through the Hudson River Gorge. He was trying to establish the “measure of risk” involved in whitewater rafting, an activity outside the expertise of the average person. Judge Feldstein ruled that videos and testimony about rafts flipping “may have overstated those risks in dramatic fashion.”
Later that year, the district attorney succeeded in getting indictments on the same counts from a new grand jury. In lieu of a trial, however, a deal was worked out: the charges would be dismissed if Cunningham agreed to adhere to some safety rules for six months. One condition was that Hudson River Rafting Company would not send rafting customers down the river unguided without prior written consent.
“If you are in violation of these terms and conditions of release,” Feldstein told Cunningham, “. . . then the message will be very clear to me that changing your behavior is not going to be accomplished easily, OK, and that’s going to tell me that in order to change your behavior going forward I’m going to have to use every possible tool up to and including jail, which I am fully prepared to use in this case.”
Cunningham did not change his behavior to the judge’s satisfaction, and the case now appears headed for trial. He voided the agreement when, last May 27, he steered clients to the bank of the Hudson and stepped out of the raft. “Cunningham offered no explanation or apology, just said we’d be fine the rest of the way,” New York City resident Ross Goldstein wrote in a statement to police. Goldstein and other customers were left to finish the last three miles of a seventeen-mile trip on their own. “This was easily the worst tourist experience I ever had,” Goldstein wrote. “We were definitely afraid.”
By then, the hardest part of the journey was over. The final three miles of the Hudson River Gorge trip are, under most conditions, Class I-II whitewater (the easiest classifications under American Whitewater Association guidelines). Class II rapids are straightforward for an experienced paddler but can be intimidating to a novice. Once again, nobody got hurt that day. But the incident has led to two other charges of reckless endangerment.
Between Indian Lake and North Creek the Indian and upper Hudson rivers flow narrowly through wilderness and a remote, scenic canyon. After spring snowmelt the water runs high and fast, forming adventure-class rapids in the gorge. In 1997, summer rafting was introduced, made possible by timed releases from Lake Abanakee upstream. That same year, the Hudson River Professional Outfitters Association was established. Since then, more than three hundred thousand association customers have been guided through this route without serious injury, according to its president, Bob Rafferty.
The association comprises all but one of the dozen whitewater outfitters on the river. Hudson River Rafting Company dropped out a few years ago. The association’s self-imposed safety standards exceed state requirements; for example, they refuse to run the river when it crests higher than ten feet, as measured at a gage in North Creek.
The association contracts with the town of Indian Lake for water releases and to launch boats below the Lake Abanakee dam. When Pat Cunningham left the group, he lost those launching rights. His company hitches a free ride on the surge of water by putting in from a piece of riverbank he owns nearby.
A lot of guides got their start working for Cunningham. He was among the first to shoot the Hudson River Gorge in a kayak, and he opened the state’s first rafting business there in 1979. In the Adirondacks, Cunningham stories are swapped like tall tales. The third-generation Adirondacker is a dauntless skier, paddler, and entrepreneur. As a young man he was an Olympic downhill hopeful. In the 1980s he owned seven ski shops, according to a 1988 Adirondack Life magazine profile. At age seventy-three, he still takes the rudder and does the hard-core work of schlepping and piloting whitewater rafts. It comes with the territory that customers get bounced, flipped, or sucked into whitewater once in a while, and rafters help rescue each other’s swimmers. But guides complain that in recent years Cunningham’s staff seems to need more on-river assistance than others. Customers complain on the TripAdvisor website about “creepy” guides and “mildewy” life vests. Hudson River Rafting Company, once the largest in the Adirondacks, has declined in size as well as reputation.
Law-enforcement officials have focused on safety violations. Buses carry customers between the river and Hudson River Rafting Company’s North Creek headquarters. State Police have ticketed two of Cunningham’s drivers for not having a commercial license. Another driver and guide who was working as recently as fall 2012 “has not had a valid driver’s license since 2005,” Forest Ranger Bruce Lomnitzer said in a deposition.
Since 2007, a dozen Hudson River Rafting Company guides have been ticketed for leading trips without a New York State whitewater guide’s license. Three guides told me for an article published in 2011 that trainees routinely guided customers before they completed the state required five training trips down the river and that the company’s river-safety course was perfunctory.
On the morning of September 27, 2012, fifty-three-year-old Tamara Blake, of Columbus, Ohio, drowned after falling out of a Hudson River Rafting Company boat on the Indian River. Her guide, Rory Fay, of Johnsburg, also fell out. Blake’s boyfriend, Richard Clar, stayed in the raft and managed to steer it to shore. Fay, who is thirty-seven, later admitted to being intoxicated and pleaded guilty to criminally negligent homicide. He was a rookie who obtained his license in May. He is being held in Hamilton County Jail pending sentencing in January. Patrick Cunningham told the Explorer at the time of the accident that he had no idea that his guide was drunk.
When contacted again for this article, Cunningham said he had no comment. His attorney in the Hamilton County suit, Joseph Brennan, did not respond to a phone message. Pat Cunningham faces no criminal charges in Blake’s death, but the incident prompted the state attorney general to seek to close Hudson River Rafting Company for good, including its operations on the Moose River near Old Forge and the Black River near Watertown. Also, DEC suspended Cunningham’s guide license.
In the lawsuit, the attorney general alleges that in addition to repeatedly failing to provide licensed guides and failing to provide properly licensed bus drivers Cunningham and his company committed fraud by falsely advertising “safe” guided river expeditions.
If the state can’t force Cunningham out of the rafting business, it wants him to establish a restitution fund of $100,000 for customers who may be defrauded or have other grievances in the future. A hearing in the civil case is expected in State Supreme Court in January. That’s also when jury selection is to begin for Cunningham’s misdemeanor trial in Hamilton County Court.
Other outfitters are eager for an end to the publicity. “This whole story is about a company who is operating outside of our organization,” says Bob Rafferty, of the Hudson River Professional Outfitters Association. “As tragic as it was for a family, it’s very damaging for all these businesses that have made such great progress since our rules and regulations have been implemented.”
In the court of public opinion, Pat Cunningham has largely gone from local hero to pariah. But in a court of law, he has often prevailed. Two Buffalo-area women drowned on a Hudson River Rafting Company trip on the Black River in 1985. Their families charged negligence and sought damages. They lost in civil court.
Cunningham has managed to avoid the charges now pending in Hamilton County for two years. At the confluence of the criminal and civil cases, Cunningham has in his favor the vagary of what, exactly, constitutes whitewater safety. An attempt to educate a jury about running rapids derailed the criminal case once already. And rafting customers sign a release, assuming all risk, including death, even if arising from negligence. Cunningham’s attorney in the civil case, Jason Britt of Glens Falls, argued in court filings that the attorney general has so far tried to prove “violations of safety standards without any evidence of what the prevailing industry safety standards are. It is beyond argument that white water rafting is a recreational activity that carries an inherent risk of injury.” Britt also argued that the owner of a business is not necessarily liable for the actions of its employees.
Neither Britt nor current Hamilton County District Attorney Marsha Purdue wanted to comment on their pending cases. But Purdue allowed that whitewater esoterica complicate the county’s prosecution as well. “In my opinion, however, there is a point where the rafter is not acting properly to protect their clients, and that’s when it falls into a criminal nature,” she said.
State Supreme Court Judge Richard Giardino has ordered Hudson River Rafting Company closed while the civil lawsuit is pending. It’s mostly a moot point, as rafting has ceased until April. But according to Britt, if the case is resolved in time, Cunningham plans to reopen in spring.
Photos: Above, Pat Cunningham (right) next to the Indian River in a 1986 photo by Nancie Battaglia; Middle, a chart showing that the level of the Hudson River on September 27, the day Tamara Blake drowned on a rafting trip, was not higher than usual – the spikes represent pulses from dam releases in Indian Lake; Below, a Hudson River Rafting Company raft (Photo by Nancie Battaglia).
More stories about the Adirondacks can be found in each issue of Adirondack Explorer, the non-profit news magazine devoted to the protection and enjoyment of the Adirondack Park. Get a full print or digital subscription here.