A lawsuit centered on a contentious personal watercraft ban in Kachemak Bay, also known as the jet ski ban, has made its way to the Alaska Supreme Court.
It’s been a long road to decide whether or not jet skis should be permitted in Kachemak Bay.
They were banned in the Kachemak Bay and Fox River Flats Critical Habitat Areas for nearly 20 years until it was repealed in 2021. Then Cook Inletkeeper, Kachemak Bay Conservation Society, The Alaska Quiet Rights and Friends of Kachemak Bay State Park sued in response and brought back the ban last November.
But now that lawsuit is facing the 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 the commissioner can show that jet skis don’t have an adverse effect on critical habitat areas, or CHAs.
“The Commissioner determined that there just isn’t sufficient evidence that jet skis are affecting habitat in a way that they’re incompatible with the purpose of CHAs,” Wolff said. “That’s the statutory interpretation analysis; the Superior Court definitely erred there.”
The case was originally heard in the state Superior Court, where Judge Adolf Zeman ruled that the state law that created CHAs doesn’t give Vincent-Lang the authority to get rid of the regulation.
The statute states that the purpose of creating CHAs is to protect and preserve fish and wildlife habitats, and “to restrict all other uses not compatible with that primary purpose.” Zeman found that repealing the ban didn’t actually follow state law.
But, Wolff said this decision is wrong because Vincent-Lang could show that lifting the ban wouldn’t have a negative impact based on the reasonable basis standard.
In the state’s written reply brief, they argued that the commissioner has the authority to repeal a regulation a previous commissioner put in place, and that his decision in this case “was reasonably based on scientific literature, changes in technology, and consideration of public access.”
Wolff said data supporting the initial jet ski ban was inconclusive to the commissioner. Their side pointed out the studies looked at places outside of Alaska, like the Florida Everglades.
“These CHAs are pretty unique. There’s deep marine water. There’s tons of human activity, including oil tankers and cruise ships,” Wolff said. “So when you look at a study from the Everglades, when there aren’t many people going into the Everglades, that is a very different environment than a place where oil tankers are habitually going in and out of.”
Samuel Gottstein represents the non-profit groups pushing to ban jet skis again. He said the state is wrong about its authority in the case.
“One of the reasons why the state believes that it can repeal this regulation is that it believes it has the inherent authority to undo a regulation that has been done,” he said. “But that’s like a parent saying, ‘I brought you into this world, and I can take you out of it.’ And the reality is no parent has that right.”
He also added other reasons the court could rule in the non-profits’ favor, including that the state arbitrarily got rid of the ban without proper scientific backing. He said that lifting the ban would also go against a management plan for the habitat areas and is inconsistent with other regulations from the Alaska Department of Natural Resources, which prohibits jet skis in nearby and overlapping state park waters.
Gottstein also argued that the repeal decision violated the so-called “Hard Look” doctrine in several ways. This is a standard to see if an agency has considered important parts of making regulation, as well as whether things were changed to accomplish an outcome decided ahead of time.
One way he highlighted was that a decision to repeal the ban was written before the commissioner read public comments. According to the non-profits’ written brief, engaging in decision making should have happened after going through public comment instead to satisfy this standard.
Both sides also brought up the impact of jet skis in CHAs.
The commissioner found there wasn’t enough evidence on jet skis’ negative impacts, and that jet skis have changed over time. But, Gottstein said a review looking into different studies on jet skis shows that they still have specific features that differ from other watercraft allowed in the CHAs.
“The differences are the rapid changes in speed, the erratic movements, recreating in waves, as well as the traveling in groups. And those are the specific things that were mentioned in the 2017 literature review, which Fish and Game did not address,” Gottstein said.
For now, jet skis are still banned in the habitat areas. A decision from the Alaska Supreme Court is still pending.
