The Alaska Supreme Court ruled Friday that the Alaska Department of Fish and Game may allow personal watercraft, commonly called Jet Skis, in Kachemak Bay south of Homer.
The unanimous decision by the five-member court overturned a lower-court judge who had ruled in 2023that the state could not eliminate a Jet Ski ban once it was imposed.
The state of Alaska moved to allow Jet Skis in 2019 in Gov. Dunleavy’s first term after lobbying by personal watercraft groups, including the Personal Watercraft Club of Alaska.
Attorney General-designee Stephen Cox and ADF&G Commissioner Doug Vincent-Lang said by email on Friday that the ruling has broader implications than Kachemak Bay because the justices affirmed that if the executive branch imposes a regulation, it implicitly has the power to reverse that regulation.
“Today’s decision is a win for Alaskans who value access to our waters. It confirms the Department’s ability to remove outdated rules and ensure our parks and public lands remain open for responsible recreation. We’re pleased the Court recognized the importance of keeping regulations flexible and reflective of how Alaskans enjoy the outdoors,” Vincent-Lang said.
Four local groups — Cook Inleteekper, the Kachemak Bay Conservation Society, the Alaska Quiet Rights Coalition and Friends of Kachemak Bay State Park — had sued the state in 2021 after the Dunleavy administration lifted a Jet Ski ban that had been in place since 2001.
Attorney Sam Gottstein represented the four groups in court and said by phone Friday, “Although we are disappointed in the decision, I think it is fair to say that this ruling generally recognizes an agency’s authority to modify or repeal its own regulations.”
Earlier this year, Gov. Mike Dunleavy issued Administrative Order 360, which launched a yearslong, statewide effort to repeal “burdensome” regulations.
“This is a win for Alaskans. The Alaska Supreme Court affirms our authority to repeal outdated rules when the facts don’t justify them. That’s exactly the AO 360 playbook: take a hard look, cut red tape, protect what matters. More commonsense regulatory reform ahead,” Cox said by email.
In Friday’s 36-page order, Justice Jude Pate — writing on behalf of the court — said that the Fish and Game commissioner “had the regulatory authority to enact (a ban), and this authority necessarily includes the authority to repeal (the ban).”
Gottstein had argued unsuccessfully in court that state law only permitted regulatory changes for the purpose of environmental conservation, effectively allowing only a one-way door.
“It’s like a parent saying, ‘I brought you into this world and I can take you out of it,’” he told the court in 2024. “The reality is, no parent has that right, just like Fish and Game doesn’t have that right.”
But Pate appeared skeptical of that position during oral arguments and rejected it in Friday’s written order.
Citing other states’ supreme courts and federal court rulings, he wrote, “as other state and federal courts have noted, agencies generally have the authority to amend or repeal their own regulations. That authority is implied from the agency’s authority to promulgate rules in the first place.”
If agencies weren’t allowed to repeal regulations, it “would spawn zombie regulations, unslayable once promulgated, no matter the passage of time or change in circumstances,” Pate wrote.
The groups challenging the state had also argued that the Dunleavy administration’s decision to repeal the Jet Ski ban was predetermined. They submitted two internal emails as evidence, but the court determined that those didn’t help the groups’ case.
The emails fell short of establishing that the governor’s office was certain that the repeal would occur, much less that the governor predetermined the outcome of the regulatory process, Pate wrote.
The court concluded that the Department of Fish and Game appropriately took a “hard look” at available scientific evidence and facts before lifting the ban, including the fact that modern Jet Skis are less polluting and quieter than they were when the ban was imposed.
Bridget Maryott, co-executive director of Cook Inletkeeper, said she was disappointed by the ruling.
“This was a win for special interests and a loss for Kachemak Bay and Fox River Flats Critical Habitat Areas, which are crucial for fish and wildlife,” she said by email. “The state’s decision to open these vital areas adds another environmental stressor to an already overburdened system. Inletkeeper fought for a fair public process, and we will continue to do so as long as Alaskan voices are silenced in decisions that affect their communities.”
The Supreme Court ordered that the case be returned to Superior Court for final proceedings.