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Groups sue state over regulation change allowing personal watercraft in critical habitat areas of Kachemak Bay

The Homer Spit in Homer, Alaska.
The Homer Spit in Homer, Alaska.(KTUU)
Published: May. 4, 2021 at 4:12 PM AKDT|Updated: May. 5, 2021 at 7:23 PM AKDT
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ANCHORAGE, Alaska (KTUU) - A handful of environmental and advocacy groups sued the Alaska Department of Fish and Game and its commissioner, Doug Vincent-Lang, on Tuesday, claiming the department violated administrative procedure and the Alaska Constitution when Vincent-Lang repealed a ban this year that had kept personal watercraft out of critical habitat areas in Kachemak Bay.

Fish and Game announced in December 2020 that the regulation barring personal watercraft, commonly known as jet skis, from the Kachemak Bay Critical Habitat Area and Fox River Flats Critical Habitat Area was being repealed. That regulation change went into effect in January of this year.

The new regulation language can be read here.

The department’s announcement back in 2019 that it planned to review and possibly repeal the ban on jet skis in the critical habitat areas revived an old clash between advocates of environmental conservation and public access to land and water. The critical habitat areas were established in the 1970s, and jet skies had been prohibited from those areas since 2001 when they were banned as part of an extensive public process involving the state management plan for both critical habitat areas.

In the complaint filed Tuesday in Alaska Superior Court, four groups — Cook Inletkeeper, Friends of Kachemak Bay State Park, Kachemak Bay Conservation Society and the Alaska Quiet Rights Coalition — challenge the commissioner’s repeal of the ban and ask for it to be restored. The groups claim Vincent-Lang and the department violated the Administrative Procedure Act and lacked the statutory authority to reverse the ban.

In the complaint, plaintiffs allege the Department of Fish and Game departed from its own longstanding process of addressing changes to the critical habitat areas through the plans that manage them by conducting the repeal of the jet ski ban as a standalone process. The groups also claim in the complaint that the decision to repeal the ban originated from the office of Gov. Mike Dunleavy, and not from within Fish and Game.

Rick Green, special assistant to Vincent-Lang, has previously described how the proposal to repeal the prohibition on jet skis came about. He told the Homer News Dunleavy had asked all state departments to “do an exercise to find out if there were any overburdensome regulations stopping Alaskans from doing business” in or enjoying Alaska.

Green has also previously said the proposal to repeal the regulation was spurred in part by the prompting of recreational groups like the Alaska Outdoor Council and Personal Watercraft Club of Alaska, which had been asking for access to the waters.

The complaint also claims that the Department of Fish and Game ignored scientific data regarding jet skis in making its decision to repeal the prohibition. Reached by phone Tuesday, Bob Shavelson of Cook Inletkeeper pointed to a 2017 review of the jet ski regulation that was part of the ongoing process to revise the management plan for the critical habitat areas. At the time, Fish and Game staff recommended retaining the ban, saying they felt there was no new information about jet skis that would warrant lifting it.

“... Most of the concerns that led to the adoption of the (personal watercraft) prohibition in Kachemak Bay and Fox River Flats CHAs in 2001 continue to be valid today,” the department staff wrote in a 2017 memo.

The argument of those pushing for the ban’s removal had been that jet ski technology has been improved in recent years, making them safer and less harmful to the environment. Shavelson conceded those upgrades have helped, but maintained that jet skis still pose a public safety risk due to their high speeds, and that the noise they create can be a nuisance to people and wildlife.

“To this point, there isn’t, you know, any data conclusive that personal watercraft would cause a negative effect, in Kachemak Bay habitat, any more than the boating that’s there now, if it’s regulated,” said Policy Director Rod Arno with the Alaska Outdoor Council.

When asked for comment, representatives for both Fish and Game and the Alaska Department of Law wrote in emailed responses that the departments would “review the complaint and file a timely response that will be publicly available.”

Penelope Haas, a representative for Kachemak Bay Conservation Society, said the larger goal of the lawsuit is to ensure a transparent and legal process is being followed by Fish and Game when it makes regulation changes.

“First is to make sure that when the Department of Fish and Game makes rules it has a solid foundation for those rules,” she said.

The groups involved in the lawsuit see it as a statewide issue, she said.

The critical habitat areas in Kachemak Bay are separate entities from Kachemak Bay State Park, which is managed by the Department of Natural Resources, but the boundaries for the state park waters and the critical habitat waters in the bay overlap. The state park has its own prohibition on jet skis in its waters, which did not go away when Fish and Game repealed the ban in the critical habitat areas.

That may change, however, as the issue of whether to retain the park’s ban on personal watercraft is being discussed as part of the ongoing process to update the Kachemak Bay State Park and Kachemak Bay Wilderness Park Management Plan.

In Homer, which would see the greatest impact on the ban’s reversal through its harbor and beaches, the city council has been working since the ban’s reversal to account for personal watercraft in its own local regulations on wake zones and city beaches.

Copyright 2021 KTUU. All rights reserved.

Editor’s note: This article has been updated with an additional quote from a representative of the Alaska Outdoor Council.