AMGA Terrain and Supervision Guidelines? Making more rules does not make things safer. Rarely does that work, look at the laws concerning our highways and the highway deaths. Making more rules does lead to more lawsuits. Again, look at our highways.

Posted: December 5, 2014 | Author: Recreation Law | Filed under: Mountaineering | Tags: American Mountain Guides Association, AMGA, Bureau of Land Management, Guidelines, IFMGA, International Federation of Mountain Guides Associations, Mountaineering, National Park Service, National Wilderness Preservation System, Terrain, UIAGM, United States Congress, United States Department of the Interior, United States Fish and Wildlife Service, United States Forest Service | 8 Comments

The latest actions of AMGA hit a lot of nerves and rightfully so. As usual, the lack of understanding and the desire to create something (not sure what) labeled standards are going to create lawsuits. The new Terrain & Supervision Guidelines won’t solve any problems; they’ll only create new ones.

I’ve attached the new requirements here below, so you can review them yourself. If not, you can download your own set here: Terrain & Supervision Guidelines. I’m not sure why the AMGA has created the new requirements. I’ve been told it is a money thing, I’ve been told it is a safety thing, I’ve been told it is a back door into trying to get permits on NPS lands; I have no real idea. I do know it won’t accomplish any of those goals. I did not contact the AMGA to find out what or why.

Attorneys love to deal in fuzzy it gives them latitude to litigate. The only time they don’t like fuzzy is when something is solid and proves their case without having to work very hard. The new Terrain & Supervision Guidelines are the classic sharp line to help prove the defendant was wrong and everything else is fuzzy so no one really knows how to help the defendant.

Let me reminisce.

I quit providing pro bono legal work to the AMGA over fifteen years ago when another attorney said he could get the AMGA into national parks. I told the AMGA that would never happen. I moved on. Fifteen years later and at least two attorneys failing to pull AMGA guides into parks, the AMGA might be going around to the back door believing the back door will open.

Back doors meaning the NPS employees in individual parks who lead the rescues have to deal with the current concessionaires; who they don’t like (familiarity breed’s contempt). It is always easier to like someone who is sucking up in the belief; you can get them in a park to guide.

The problem is the door is not at any park; the door is in Washington DC no matter what the AMGA wants to believe. It doesn’t start at 1849 C St NW, Washington, DC 20240, the Department of the Interior address, either, but at Congress. Congress made the laws the NPS, and the USFS are enforcing on commercial guides on Federal lands. Until the AMGA can raise millions, probably $10 million dollars to lobby Congress, nothing will even look like it is going to change. And I suspect that the $10 million is not enough because the current companies that own permits and concessions will lobby against it, and they are bigger. Remember the big hotel concessions in the parks also run raft trips, trail rides and work with climbing guides.

However, I’ve also been told that the AMGA has backed off from the position that AMGA guides should be allowed to guide in National Parks.

I have found some legal disasters in the new Terrain & Supervision Guidelines.

The guidelines won’t apply to staff hired prior to 2008. An arbitrary number I guess, or probably the number when the last member of the committee became certified and was hired. I sat through board meetings when the first date of guides to be grandfathered under the UIAGM was determined. It was ugly, funny and basically a turf war. Trial attorneys will tear this up. (How come Guide X made it and Guide Y did not. Guide Y has thousands of year’s more recent experience, and Guide X has not been on a mountain since 08?)

The guidelines require that everything has to be documented “in the guide’s personnel file.” Thank heavens the AMGA has reviewed all HR laws in the US and knows this will not create problems. If personal files are paper, then you better get accordion files. To back this up, you’ll have to collect all the information supporting the requirements in the guidelines first, and then add the review of the supervising guides and the evaluations. Weather conditions, snow conditions, terrain maps, route maps, etc., can take a lot of space in a file folder.

My favorite rule is one that requires a guide who has not made the qualifications yet, must be under the direct supervision of a guide who has met the qualifications. Unless the guide, who has met the qualifications, has to take guests down the mountain, then the two guides can be in radio contact. The rules allow the least experienced guide to remain up high, alone.

Direct Supervision: Direct supervision implies side by side guiding such as two rope teams traveling near by on a glacier or on nearby multi-pitch routes, daily briefings and debriefings about route selection, strategy, and client care. Side by side guiding and meetings should be documented in the guide’s personnel file. It is the supervising guide’s responsibility to ensure that assigned tasks are appropriate to a guide’s training and ability. It is allowable for the mentored guide to be in radio or phone contact when turning around with clients to descend.

What if the guide who has been certified, leaves to summit with a group of clients, can the one who hasn’t been certified stay with the clients who don’t/can’t summit. They’ll be in radio contact?

So you make a rule, then you make an exception to the rule. On Denali in a few years, this will be a disaster. The new concession requirements for climbing concessions are going to reduce the number of guides with a commercial group. Rescues will be done without commercial guides because a guide won’t be able to leave the group and work the rescue with these guidelines. (Rescues in the future on Denali are going to be a mess with the latest version of the commercial rules anyway, that is a whole other article.)

The languages of the guidelines are full of legal land mines. Here are some of my favorites.

…who are appropriately trained, tenured or certified

It is the supervising guide’s responsibility to ensure that assigned tasks are appropriate to a guide’s training and ability.

Certified supervisors

…is not of wilderness in nature

My favorite are the terms applied to different people.

Apprentice Guide

Assistant Guide

Aspirant Mountain Guide

Certified Guide

So does that mean you are a patrol leader or a star scout? More importantly do you get a badge?

Here are some more phrases that seem innocuous but don’t make sense.

The stated goal of the new accreditation standard is to have all field staff, except those meeting the 2008 exemption, be trained by the AMGA for the terrain they work on.

So guides who met the requirements prior to 2008 cannot have a lick of training, sense or experience now and not be up to date on the requirements.

How is this going to happen? So I have a concession to guide on Denali. Am I supposed to bring you on one of my trips to tell me that you can train me on this terrain? What about the NPS on this issue and their current regulations. I guess you can come, go sign up and pay the fee, and I’ll take you where I am permitted to go.

AMGA courses are considered the baseline technical training for specific terrain types and are not a substitute for in-house training.

Yet above, they said this is the best you can get? What is this going to mean in court? The AMGA is just the baseline, yet the states the IFMGA (UIAGM) are now the baseline.

(The IFMGA (UIAGM) was founded to allow guides in Europe to guide everywhere and is the International Organization the AMGA must follow.)

I doubt that this has been run by the IFMGA (UIAGM).

Do Something

What’s going to happen? The big concessionaire members of the AMGA are either going to leave and financially sink the AMGA or revolt. No one will be happy either way. They don’t need greater chances of being sued. People die on mountains, and I would guess these new guidelines are not going to change that. They know the terrain and have in place, with NPS approval a way of guiding customers and training staff.

I have not taken the time to compare these guidelines with current NPS regulations for various mountains. I suspect there may be some conflicts. What is a concessionaire supposed to do, not follow the NPS and lose their permit or not follow these. Let’s see I pay money to the AMGA I make money with my NPS permit. Who am I going to follow?

These guidelines, like all standards for people, will only create a checklist for the attorney representing an injured client to sue. The guidelines will be taken and incorporated in interrogatories about each member of the guiding team. One misstep on the mountain or in discovery and these guidelines will change the lawsuit from what we can defend to how much we have to pay.

Don’t get me wrong. The American Mountain Guides Association has some of the greatest people I know as members and as an organization has accomplished tons. However, it is faced with an impossible job with no money to accomplish the job: the promise the AMGA made to the IFMGA in 1993 is never going to come through.

However, making standards, guidelines for people do not stop lawsuits; they only help the plaintiff’s win lawsuits.

Click on the link to download your own copy of the Terrain & Supervision Guidelines.

See the following articles where association guidelines were used to sue the association member:

ACA Standards are used by Expert for the Plaintiff in a lawsuit against a Camp                                       http://rec-law.us/zmKgoi

Great article about the risks of an organization creating standards for members of the industry – and I did not write it                                                                              http://rec-law.us/1rk8oHR

If your organization says you do something and you are a member of the organization you better do it or be able to explain why you did not                                   http://rec-law.us/1gOLpju

Expert Witness Report: ACA “Standards” are used by Expert for the Plaintiff in a lawsuit against a Camp            http://rec-law.us/y7QlJ3

Industry standards are proof of gross negligence and keep defendant in lawsuit even with good release            http://rec-law.us/1dqBdxo

Plaintiff uses standards of ACCT to cost defendant $4.7 million                   http://rec-law.us/11UdbEn

So if you write standards, you can, then use them to make money when someone sues your competitors            http://rec-law.us/1gCGce8

Trade Association Standards sink a Summer Camp when plaintiff uses them to prove Camp was negligent                                                                               http://rec-law.us/wszt7N

What do you think? Leave a comment.

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