It's not a right-of-way issue if the boat was invisible in the dark. Lights are also required.
I didn’t see anything about whether the sailboat was under sail, or power at the time. Only that it was drifting, which suggests that they were not making way and just dead in the water out in the lake. If so, there’s no manuever he could have done to get out of the way in time.
In the article it said that several witnesses did report that the sailboat did in fact have its lights on. The mere fact that there are several witnesses that all saw the sailboat, when the operator of the power boat clearly did not, is pretty powerful testimony right there.
Everybody seems to concede that the powerboat was moving very fast. 40 on the water is very fast indeed, especially at night. Any operator must go slow enough to avoid a collision, right-of-way notwithstanding.
Even if the sailboat was dark, there’s any number of dark objects floating on the water from time to time. It is a skipper’s responsibility not to hit them. If there were no lights on, one could argue that there’s a small portion of contributory negligence on the part of the sailboat, but the proximate ~cause~ of the accident was that the motor boat was travelling too fast for conditions. Without that, there would have been no accident. With that, there may have still been an accident with or without any other contributing factor.
In any case, charging the person who happened to be in or near the helmsman’s seat of the drifting boat with any crime in this matter is ridiculous.
IMHO.