Alaska Superior Court Judge Orders ADF&G to Reinstate Personal Watercraft Ban in Kachemak Bay and Fox River Flats Critical Habitat Areas

Homer, AK - Superior Court Judge Adolf Zeman ruled in favor of plaintiffs: Cook Inletkeeper, Kachemak Bay Conservation Society, Friends of Kachemak Bay State Park, and Alaska Quiet Rights Coalition, in a case challenging jet ski use in two critical habitat areas last Thursday. In 1972, the Alaska state legislature established critical habitat areas (CHAs) "to protect and preserve habitat areas especially crucial to the perpetuation of fish and wildlife, and to restrict all other uses not compatible with that primary purpose."

“We are thrilled that the Court agreed with us that the Alaska Department of Fish & Game acted outside of the scope of its statutory authority when it repealed a longstanding regulation that prohibited personal watercraft use in the Kachemak Bay and Fox River Flats Critical Habitat Areas,” said Sue Mauger, Co-Executive Director of Cook Inletkeeper. “This is a great example of how checks and balances should work in our democracy: citizens using the judiciary to stop clear administrative overreach of legislative authority.”

Plaintiffs initiated this case (3AN-21-05627CI): Cook Inletkeeper, et al. v. Commissioner Douglas Vincent Lang, et al., in May 2021. The parties had agreed to a simultaneous summary judgment briefing schedule, and Judge Zeman heard oral argument on June 26, 2023.

“Kachemak Bay residents spoke up in great numbers against the Department’s proposed change to allow jet skis in the area, because they threaten wildlife and the enjoyment of compatible activities in Kachemak Bay,” said Roberta Highland with Kachemak Bay Conservation Society. “The science simply did not support rescinding the ban — not even ADF&G biologists supported this change. Jet skis are just not compatible with the primary purpose of these critical habitat areas.”

“Jet skis' excessive noise has a major adverse impact on the experience of natural sounds in Kachemak Bay to the detriment of both humans and wildlife,” said Cliff Eames with Alaska Quiet Rights Coalition, an organization seeking to maintain and restore natural sounds and natural quiet in Alaska. “This is the wrong place for these watercraft. They should never be allowed in critical habitat areas. We are relieved the Court has ordered the Department to reinstate the ban.”

Beginning in 1999, the Department considered possible regulatory actions regarding the use of personal watercraft in the Kachemak Bay and Fox River Flats CHAs. The Department formed an interagency planning team and directed staff to conduct a literature review to assess the possible impacts of personal watercraft (PWC) on fish and wildlife. This literature review concluded that "the characteristics of [PWC] use . . . may make them more disruptive and polluting than conventional watercraft.” "[T]he higher noise levels, faster speeds, erratic movements, the PWC's ability to enter shallower water, and their tendency to operate in groups [are] reasons why PWC impact wildlife to a greater degree than conventional motorboats." In 2001, the Department opted to adopt a regulation prohibiting PWC use within the CHAs in support of the primary purpose of the CHAs. A subsequent agency literature review in 2017 supported keeping the ban.

“The Department can enact regulations that support the primary purpose of the CHAs, but not relax regulations that threaten their primary purpose. So, when the Department issued a public notice of the proposed repeal in 2019, we were all scratching our heads,” said Robert Archibald with Friends of Kachemak Bay State Park. “The Department tried to ignore data and the expertise of its staff for a politically motivated rule change. The Court’s ruling shows that Alaskans have the collective power to call our agencies to task when they overstep their authority and try to rollback protections.”

The groups are represented by Scott Kendall of the law firm Cashion Gilmore & Lindemuth in Anchorage.

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