Alaska Supreme Court hears arguments for jet ski ban in Kachemak Bay

Cliffs connected nan southbound extremity of Kachemak Bay connected July 27, 2024. (Jamie Diep/KBBI)

A suit centered connected a contentious individual watercraft ban, besides known arsenic nan pitchy skis ban, successful Kachemak Bay, has made its measurement to nan Alaska Supreme Court.

It’s been a agelong roadworthy to determine whether aliases not pitchy skis should beryllium permitted successful Kachemak Bay.

They were banned successful nan Kachemak Bay and Fox River Flats Critical Habitat Areas for astir 20 years until it was repealed successful 2021. Then Cook Inletkeeper, Kachemak Bay Conservation Society, The Alaska Quiet Rights and Friends of Kachemak Bay State Park sued successful consequence and brought backmost nan prohibition past November.

But now that suit is facing nan Alaska Supreme Court, led by Alaska Fish and Game Commissioner Doug Vincent-Lang.

He’s represented by Alaska Assistant Attorney General Laura Wolff. She said nan commissioner tin show that pitchy skis don’t person an adverse effect connected captious residence areas, aliases CHAs.

“The Commissioner wished that location conscionable isn’t capable grounds that pitchy skis are affecting residence successful a measurement that they’re incompatible pinch nan intent of CHAs,” Wolff said. “That’s nan statutory mentation analysis; nan Superior Court decidedly erred there.”

The lawsuit was primitively heard successful nan authorities Superior Court, wherever Judge Adolf Zeman ruled that nan authorities rule that created CHAs doesn’t springiness Vincent-Lang nan authority to get free of nan regulation.

The statute states that nan intent of creating CHAs is to protect and sphere food and wildlife habitats, and “to restrict each different uses not compatible pinch that superior purpose.” Zeman recovered that repealing nan prohibition didn’t really travel authorities law.

But, Wolff said this determination is incorrect because Vincent-Lang could show that lifting nan prohibition wouldn’t person a antagonistic effect based connected nan reasonable ground standard.

In nan state’s written reply brief, they based on that nan commissioner has nan authority to repeal a regularisation a erstwhile commissioner put successful place, and that his determination successful this lawsuit “was reasonably based connected technological literature, changes successful technology, and information of nationalist access.”

Wolff said information supporting nan first pitchy skis prohibition was inconclusive to nan commissioner. Their broadside pointed retired nan studies looked astatine places extracurricular of Alaska, for illustration nan Florida Everglades.

“These CHAs are beautiful unique. There’s heavy marine water. There’s tons of quality activity, including lipid tankers and cruise ships,” Wolff said. “So erstwhile you look astatine a study from nan Everglades, erstwhile location aren’t galore group going into nan Everglades, that is simply a very different situation than a spot wherever lipid tankers are habitually going successful and retired of.”

Samuel Gottstein represents nan non-profit groups pushing to prohibition pitchy skis again. He said nan authorities is incorrect astir its authority successful nan case.

“One of nan reasons why nan authorities believes that it tin repeal this regularisation is that it believes it has nan inherent authority to undo a regularisation that has been done,” he said. “But that’s for illustration a genitor saying, ‘I brought you into this world, and I tin return you retired of it.’ And nan reality is nary genitor has that right.”

He besides added different reasons nan tribunal could norm successful nan non-profits’ favor, including that nan authorities arbitrarily sewage free of nan prohibition without due technological backing. He said that lifting nan prohibition would besides spell against a guidance scheme for nan residence areas and is inconsistent pinch different regulations from nan Alaska Department of Natural Resources, which prohibits pitchy skis successful adjacent and overlapping authorities parkland waters.

Gottstein besides based on that nan repeal determination violated nan alleged “Hard Look” doctrine successful respective ways. This is simply a modular to spot if an agency has considered important parts of making regulation, arsenic good arsenic whether things were changed to execute an result decided up of time.

One measurement he highlighted was that a determination to repeal nan prohibition was written earlier nan commissioner publication nationalist comments. According to the non-profits’ written brief, engaging successful determination making should person happened aft going done nationalist remark alternatively to fulfill this standard.

Both sides besides brought up nan effect of pitchy skis successful CHAs.

The commissioner recovered location wasn’t capable grounds connected pitchy skis’ antagonistic impacts, and that pitchy skis person changed complete time. But, Gottstein said a reappraisal looking into different studies connected pitchy skis shows that they still person circumstantial features that disagree from different watercraft allowed successful nan CHAs.

“The differences are nan accelerated changes successful speed, nan erratic movements, recreating successful waves, arsenic good arsenic nan walking successful groups. And those are nan circumstantial things that were mentioned successful nan 2017 lit review, which Fish and Game did not address,” Gottstein said.

For now, pitchy skis are still banned successful nan residence areas. A determination from nan Alaska Supreme Court is still pending.