By Jason Robertson for American Whitewater
Based in part on a letter from Lloyd Athearn at the American Alpine Club to Mike Gauthier, Denali National Park 3.9.2001
"Stretch forth thy hand from above;
Rescue me, and deliver me out of great waters"
-Book of Psalms
Federal, State, and other government agencies have a moral and legal responsibility to conduct and bear the cost of search and rescue efforts for everyone in need of their assistance. This is both a privilege and a right, and is protected by international treaties, which effectively ensure your rescue regardless of your ability to pay for the service.
The issues surrounding equity, legal liability, and financial responsibility must be explored so that policy makers appreciate what actions are likely to help and harm the public's interests. Our examination begins with a story from the Haw River, from which we move into an analysis of the 1999 National Search and Rescue Plan, and a discussion of the suitability of recovering costs for rescues as well as the propriety of requiring boaters to provide proof of rescue insurance prior to receiving a launch permit.
"When they were yelling at us to hurry up and rescue them, I was thinking, 'Well, ding-dong, I wasn't the one who put you out in the river.'"
- Amy Isley, Burlington police officer and volunteer rescue squad member
I grew up near the Haw River in North Carolina and was witness to the near annual media circus surrounding the dramatic helicopter rescues of canoers. Inevitably, the stories demonstrated an individual exercising poor judgment, which was exacerbated by high waters.
By 1995 rescues of boaters on the Haw had become so common that the Chatham County Manager reported to the County Commissioners "there was recently another incident where a canoeist used the Haw River for recreational purposes when the river was above its normal elevation." The Commissioners listened to concerns that rescue and emergency response teams might themselves be placed in danger when stranded boaters needed assistance in the river, which quickly led to a discussion of whether there should be a prohibition on entering the river at certain flood stages or a penalty for people whose actions were particularly irresponsible.
Tony Tucker, Emergency Operations Director, then described how each river rescue on the Haw cost approximately $3,500. Most of that expense was for the Army's helicopter at Fort Bragg, but a lot of the remainder was in salaries. His position was that if a fine was imposed, it would be unlikely to help recoup costs but "to make a person think twice about entering the river." Ultimately the Commissioners voted to have the Chatham County Attorney investigate an ordinance, though no regulations were changed in Chatham.
One county upstream, and six years later in February 2001, Charlie Frago, a staff writer for Burlington's News & Record, reported that three canoers were pulled off a beaver lodge on the Haw River in North Carolina. The three chose to canoe the flooded river without lifejackets in rainy, wintery conditions. One reportedly said, "We just thought, the water's real high, it's going to be fun." However, Frago clarified that Alamance County taxpayers would not bear the burden of the rescue costs since the volunteer squad was funded largely through private donations and added that the three canoers were not billed. While the circumstances leading to this rescue were particularly grievous, the event ultimately served as one more opportunity for the regulators and media mavens to discuss whether the river should be closed during high water and who should bear the cost of rescues.
The tales of woe on the Haw are not unique to North Carolina, and the issue of who should bear search and rescue costs has been debated in every state in the Union. Whenever dramatic rescue images appear on the nightly news of boaters being lifted from a flooded river by helicopter or challenged by law enforcement, we find ourselves and our actions under the spotlight. This is true whether the victim is an inexperienced yahoo or even an Olympian like Davey Hearne.
"The Participants agree that SAR services that they provide to persons in danger or distress will be without subsequent cost-recovery from the person(s) assisted."
- 1999 NSAR
In 1999 the United States Coast Guard issued the United States National Search and Rescue Plan (NSAR). The NSAR Plan, which was amended in 2000, establishes the national protocol "for coordinating civil search and rescue (SAR) services to meet domestic needs and international commitments."
The Plan affirms that the United States has met SAR responsibilities agreed to by international treaty including the Convention on International Civil Aviation, the International Convention on Maritime Search and Rescue, and other appropriate international instruments to which the U.S. is a Party.
Civil search and rescue operations on whitewater and flatwater are explicitly covered under the "maritime" and "land" operations directives. Maritime operations are defined as rescue from a water environment; and land operations are defined as rescue operations associated with environments such as wilderness areas, swift water, caves, and mountains.
The signing federal agencies include the Interior and Coast Guard, as well as the Departments of Defense, Transportation, and Commerce, and Federal Communications Commission and National Air and Space Association. Each agency assumes varying degrees of responsibility for preventative measures to protect the visiting public. Ultimately though, NSAR promises "the effective use of all available facilities in all types of SAR missions", and affirms that the rescued person(s) shall not be responsible for payment associated with their rescue. This component applies equally on land and water to all federal signatories including the Department of the Interior (DOI) and adjacent jurisdictions, including the National Parks and Forest Services.
He did not create the fall, but rather the capacity for the fall…
And in creating the capacity to fall,
He created the possibility to both stand and to be picked up.
And that is very good.
Despite its recognition of international treaties, NSAR does not compel state or local agencies to conform or participate. Instead it encourages cooperative agreements that allow these entities to direct and control their own responses within their boundaries. It is this loophole that some politicians and agency personnel, particularly at the state level, point to as they revive arguments to seek cost recovery payments from rescued victims.
American Whitewater is opposed to charging boaters for these rescues and recoveries. It is our long established policy position that charging for river rescues, whether after the fact or beforehand in the form of a rescue fee or rescue bond, is bad public policy. We offer this as a truth for several reasons.
Lo, would you add despair unto despair?
-Ridgely Torrence, The Lesser Children
Fees can create delays that can increase risks. From a practical level, charging for rescues often delays the initial request for help, which increases the risks for rescuers and subjects alike.
By the time a lost, capsized, or injured boater (or good Samaritan or witness) calls for a rescue, that boater may be in worse condition or in a less accessible location, and the weather or daylight may have deteriorated. All of these factors can increase the complexity and cost of performing rescue services. Because of these concerns, American Whitewater agrees with the Mountain Rescue Association, an organization representing 80 volunteer rescue teams from throughout the United States, Canada, and the United Kingdom, which is on record opposing charges for rescues because "no one should ever be made to feel they must delay in notifying the proper authorities of a search or rescue incident out of fear of possible charges." NSAR recognizes this and affirms that the agencies "will not allow a matter of reimbursement of cost among themselves to delay response to any person in danger or distress."
Fees proposals tend to be discriminatory: Charging one highly visible and readily identifiable user group - in this case, boaters - for rescue services that are provided free of charge to all other National Park visitors is blatantly discriminatory.
According to 2000 NPS data, 35.3 percent of all National Park search and rescue missions were for "other" causes, which generally are not recreation related and cannot easily be categorized. Hikers, boaters, swimmers, and climbers accounted for 24.4%, 10.3%, 9.8%, and 3.6% of rescues respectively; 9% of rescues were for "mutual aid" in which NPS officials responded to outside organizations on adjacent lands, such as a state park or Forest Service property.
No correlation to cost: There is no direct correlation between the type of visitor activity and the cost of a rescue. Searches for lost hikers and downed aircraft can be exponentially more expensive than locating and transporting an injured boater from a known location in a river valley.
Cumulative rescue costs are relatively low: In 1999, the total cost per visitor of performing all search and rescue activities was a mere 1.2 cents - a small fraction of the total cost of $6.90 per visitor for all NPS functions.
Though most of the search and rescue money in Alaska is spent on looking for missing planes, lost hikers and hunters, and disabled boats, that's not what stirs the debate. It's the rescues - often highly publicized rescues - of climbers on Mount McKinley.
- Anchorage Daily News, August 1998
Debate driven by prejudice of risk rather than reality: Neither boaters nor climbers should be singled out to pay for services that are free to other Park visitors simply because they are highly visible, participants are few in number, or their recreational pursuit is perceived as dangerous by some.
A rescue! A rescue!
Good people, bring a rescue or two!
-Shakespeare, King Henry the IV, pt II
Rescues are an inherent management duty: Search and rescue is one of many public safety functions performed by land managers nationwide, as are attending to fires, motor vehicle accidents, and responding to criminal acts. All park visitors may at some point get lost or hurt while in our National Parks, whether it be a climber involved in a mountaineering accident, a rafter who is stranded in a rapid, or a tourist who succumbs to a heart attack while strolling on a paved nature trail. Similarly, all visitors may at some point be the victim of a crime or be involved in an automobile accident, and would customarily expect to have rescue services provided free of charge.
Fees increase liability risks: While charging for rescues may solve an immediate budgetary problem, it may create a bigger fiscal headache by reducing or removing the discretionary shield (see below) that protects the National Park Service from liability regarding if, when, and how the agency performs rescue services.
In 1991 the American Alpine Club (AAC) helped the NPS prevail in Johnson vs. Department of the Interior before the U.S. Court of Appeals for the Tenth Circuit [949 F.2d 332; 1991 U.S. App. LEXIS 26805]. This case established rescues as a discretionary function:
…the rangers' decision if, when or how to rescue inherently involves the balancing of safety objectives against such practical considerations as staffing, funding and minimizing government intrusion. As such, these decisions are grounded in social and economic policy, and thus are shielded from liability under the FTCA discretionary function exception.
The Park Service retains the ability to recover costs from individuals if they believe an individual's actions rose to the level of creating a hazard. However, charging for all rescues limits the agency's flexibility and may open the agency to multi-million dollar lawsuits based on a person's injury and ability to pay.
Fees increase "standard of care" expectations: Beyond removing the discretionary shield regarding when a rescue is launched, charging for rescues may force rescue agencies to provide a certain standard of care. One large legal settlement would wipe out many years of revenue brought in from charging boaters for rescues on a remote river such as the Grand Canyon in Arizona or even a more accessible river such as the Nantahala in North Carolina.
Fees violate the legally binding 1999 US National Search and Rescue Plan: As described earlier, charging for rescues is inconsistent with the National Search and Rescue Plan, a document that establishes policies and responsibilities for all U.S. government agencies providing rescue services to fulfill domestic and international obligations, which then-Secretary Bruce Babbitt signed on May 3, 1999 on behalf of the Department of the Interior. Based on NSAR, charging climbers or boaters for mountaineering or swiftwater rescues would violate national policies the Department of the Interior has pledged to uphold.
If fees are charged, fees should be limited: Rather than look only to recoup existing rescue costs, the agencies must evaluate more fully what costs legitimately should and should not be assigned to mountaineering and boating rescues.
As in the earlier case described on the Haw River, given costs often include the hourly rate for rescue or military personnel and helicopter flight hours, which can be substantial. For example, in 1992, the year with the highest mountaineering rescue costs on Denali, all search and rescue expenses totaled $431,245. Of this total, the military incurred $225,345, while the NPS incurred $206,000. However, recall that military rescue units must train constantly for various rescue scenarios - including mountain environments - so that they are prepared when called on to rescue downed military aircraft, damaged ships, etc. These training costs are billed to their training budget regardless of whether time is spent on training exercises or real-life rescues. It would be totally inappropriate to ask mountaineers to pay for military training exercises that are otherwise accounted for in military training budgets.
If actions must be taken to pay for search and rescue costs, we recommend that the National Park Service establish a national search and rescue fund. A small surcharge on all Park visitors would be the most equitable and defensible solution given that climbers and boaters account for such a small proportion of search and rescue operations system wide, and the potential need for search and rescue services exists for all Park visitors regardless of activity. As described later in this article, a mere two-cent surcharge on all NPS visitors for a national search and rescue fund would cover search and rescue activities system wide and would not discriminate against any specific user group
Rescue costs can be driven by new technologies: American Whitewater has learned anecdotally from the Park Service of an increase in the search and rescue costs along the Potomac River outside Washington, DC where the Park's low-rotor-noise Eagle helicopter is being used increasingly to rescue swimmers, hikers, climbers, and the occasional whitewater boater.
Likewise, according to an American Alpine Club analysis of NPS data, the largest single factor in escalating search and rescue costs in Denali National Park between 1980 and 2000 was the introduction of the Lama helicopter, a specialized high-altitude rescue tool. In the 12 years prior to introduction of the Lama helicopter, rescue costs for Denali National Park averaged $56,807 per year, the most expensive season cost $114,770, and only one of the 12 years saw rescue costs above $100,000. In the nine years from 1992 to 2000 with the Lama helicopter in use, average annual rescue costs doubled to $112,045, the most expensive year cost $206,000, and five of nine years had rescue costs above $100,000. The Club contends that the Lama has allowed some rescues to be conducted that otherwise would not have been possible, and recognizes that some people who survived may have died without it. However, elimination of the Lama helicopter contract would be the most significant action the NPS could take to contain the costs associated with mountain rescues in the Alaska Range.
Rescue costs can be driven by new infrastructure and use of trained volunteers: Trained volunteer rescue groups perform most search and rescue activities on public lands nationwide. The agencies should seriously consider scaling back their rescue service infrastructure and explore how volunteer rescue groups could be better utilized to reduce rescue costs on both whitewater and flatwater rivers.
The last that dare to struggle with the Foe.
'Tis well! from this day forward we shall know
That in ourselves our safety must be sought;
That by our own right hands it must be wrought;
That we must stand unpropped, or be laid low.
-Wordsworth, November 1806
Returning the backcountry to a more natural condition typical of American wilderness, will emphasize greater self-reliance: Beyond saving money, reducing the rescue infrastructure in the National Parks sends a powerful message to boaters and other visitors, that rescue services are no longer near at hand.
American Whitewater is somewhat concerned that the advent of new rescue technologies leads to new psychological crutches, which can in some ways have the opposite effect of improving safety. We caution the whitewater community to be wary of the purchase of excessive safety equipment by rangers for use on the rivers they paddle.
The mountaineers' experience in Denali serves as a warning to us. In Denali the rangers point out in their educational materials that:
Rescue of injured or ill climbers, if possible at all, may be exceedingly slow and uncertain if weather conditions are not ideal. You should be prepared and equipped to perform self-rescue. Each party must rely on its own resources and cannot count on the aid of other climbers or rescue personnel.
Nevertheless, the highly visible ranger presence on Mount McKinley at the 14,000-foot camp and through the contracted Lama helicopter seems to have given many climbers a misleading sense of security that the NPS will launch a rescue if anything goes wrong. According to the American Alpine Club (AAC), there exists a belief among many climbers that rescues can and will be launched when needed by hurt or tired climbers. The AAC points to an accident report sent by Denali rangers for inclusion in the 2001 edition of Accidents in North American Mountaineering as illustrating the problem:
The D2K party was adamant that Lev Sarkisov be flown off from the 17,200-foot high camp without delay, regardless of the weather conditions. They learned very quickly that the Park Service doesn't provide a European-style helicopter rescue service and that Denali's weather dictates everything.
Reducing the rescue infrastructure in backcountry areas of our national parks is controversial; but it would send a clear message that the government intends to return these lands to a more natural condition typical of American wilderness, and that this change will require greater self-reliance by all visitors. Identification and removal of many psychological crutches, including cell phones, would encourage people to take greater responsibility for their actions, and to avoid pushing on when they should turn back. The removal of psychological crutches could lead to a decrease in emergency responses for frivolous purposes.
Some river managers have suggested requiring boaters provide proof of insurance before receiving a launch permit. The climbing community has addressed this issue in recent years, and American Whitewater holds that their arguments also hold true for the boating community.
This issue came to a head in 1999 when Sen. Murkowski suggested that injured climbers were causing financial problems for local medical care providers by not paying bills following treatment. When he introduced a bill authorizing a study into this field, Sen. Murkowski said,
I want the Secretary to evaluate requiring climbers to show proof of medical insurance so that hospitals in Alaska and elsewhere are not left holding the bag as they sometimes are under present circumstances. It is a good neighbor policy that should be put into effect at the earliest opportunity.
Substitute the word "boaters" for "climbers" and the threat is apparent to our community. While the lack of health insurance is a widespread, serious, and longstanding problem facing many Americans, we question whether there is any information available showing boaters or climbers to be less insured than the population as a whole. We also assert that having health insurance coverage has no bearing upon whether a person should be allowed to visit our public lands and that a requirement that recreationists demonstrate proof of health insurance coverage before being issued a visitor permit would be discriminatory. Absent any compelling information from the Park Service or hospitals, this is an issue based more upon groundless speculation than fact.
More fundamental is the question of whether it is relevant or appropriate for the Park Service to ask any Park visitor about health insurance coverage. We think not and the Park Service appears to agree. The National Park Service's Organic Act established National Parks:
…to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.
The Act makes no mention of limiting access due to lack of health insurance, ability to pay, or any other factor. Given that the agencies incurs little to no expense for direct health care of injured visitors, we believe there is no legitimate reason for the government to force anyone to divulge whether they have health insurance coverage.
The working poor of this country, such as many raft guides, are the most likely segment of our society to lack health insurance, yet they pay taxes that support our public lands. They already face significant obstacles in paying entrance fees to enjoy their public lands without forcing them to show proof of medical insurance, which most simply cannot afford.
Significantly, the Department of the Interior is on record opposing requirements that climbers show proof of medical insurance before being issued a climbing permit. On May 13, 1999, when S. 698 was being heard before the Senate Subcommittee on National Parks, Historic Preservation, and Recreation, Department of the Interior Deputy Assistant Secretary Stephen C. Saunders testified against this aspect of the bill saying it would not be in the public interest. Again, substituting the word "boater" for "climber" makes the relevance of Saunder's statement to American Whitewater's members apparent:
With regard to considering the question of whether to require climbers to have medical insurance, we do not believe a study is warranted. We believe the issue of payment for medical treatment at a hospital or other medical facility should remain beyond the authority of the National Park Service or Department of the Interior. This is an issue between the private citizen, his family and his doctors. The National Park Service is responsible for the care of patients during a rescue and for their transportation to an appropriate medical facility, but should not be involved in assessing the adequacy of medical insurance for care that can extend for years beyond a person's initial injury.
This is a fundamental question of fairness regarding access to public lands and discrimination of one highly visible user group. Unless all visitors are required to show proof of medical insurance (and by logical extension force all motorists entering the Parks to show proof of automobile insurance), we believe this is a blatantly discriminatory and unlawful requirement. Requiring proof of rescue insurance coverage (and billing policies after rescues have been completed) involves many of the same legal and practical pitfalls as charging subjects for rescues.
Another factor that must be addressed when considering the requirement of carrying rescue insurance is the impact claims will have on current rescue insurance policies. Former South District Ranger J.D. Swed, quoted in a Boulder Daily Camera news story, highlighted a major problem.
When someone pays for a service in advance, they expect to get it. If someone pays for an insurance policy and they get to the 14,000-foot mark and decide they need to come down, who is to say they don't have to be taken down.
Consider the case of a boater on day 12 of a Grand Canyon trip instead of a climber at 14,000 feet, and again the relevance of this problem is apparent.
Up until the mid-nineties, Europeans could readily get rescue insurance for climbing and other activities; however, the abuse of this system led to the collapse of the underwriter's market in this field and the insurance has become much more difficult to obtain. The experience in Europe shows conclusively that when people have rescue insurance they can and will call for rescues in situations the NPS today would not view as worthy of launching a rescue. If boaters can call for a rescue whenever they feel like it, the increased utilization of rescue services could have a disastrous impact on the number and cost of river rescues and evacuations, as well as drying up what market there is for rescue insurance underwriters.
American Whitewater is opposed to singling out boaters to provide rescue insurance coverage when other Park visitors are not asked to be financially responsible for their rescues. If rescue insurance proves to be a viable concept, it should be applied broadly among all visitors. Alternately, a mere two-cent surcharge on all Park Service visitors for a national search and rescue fund would cover search and rescue activities system wide and would not discriminate against any specific user group. Such a fund would rectify the current situation in which individual Park units must pay for rescue costs under $500 and regional NPS offices must pay for rescues above $500, both of which require diverting money from existing projects since there is no dedicated rescue fund.
Boaters want to be responsible, largely self-reliant visitors to America's public lands. Our community does not desire to create a financial burden on the system as a whole. The issue of how the Park and Forest Services pay for and execute search and rescue services is a thorny one that cannot be addressed with simplistic responses. American Whitewater believes there are significant legal and discrimination issues surrounding charging boaters for rescue services, requiring medical and/or rescue insurance before being granted a boating permit, and determining how much visitors should pay directly for management services through user fees.
The misunderstandings that separate boaters from the rest of society are wide but not insurmountable; through education and political action we can bridge the gap. Write an opinion article for your local newspaper about a boating-related topic in your area. Write to local, state, or national elected officials about local boating access or policy issues. Organize a clean up effort at a local river. Then publicize your actions, share them with American Whitewater and your local governments. The more you do at an individual or group level to show that boaters are a positive force in your community, the harder it will be for policy-makers to treat us as jokers.
And of his fullness have all we received, and grace for grace.