HAINES — Alaska Heliskiing broke state law, Haines Borough code and its own safety plan during a season that included the deaths of a client and guide, but its violations "do not rise to a level of 'substantial noncompliance' " for revoking the company's tour permit, clerk Julie Cozzi ruled this week.
"I do not view commercial tour permits as privileges that can be taken away at any time for any single violation of law or permit conditions. Rather, a permit is like a piece of property. The borough should proceed very carefully before this property is taken away," Cozzi said in her decision.
"A single accident, even one that results in a customer death and even one that may have resulted from failures of the permittee to meet standards for safe operations, will not automatically result in denial of a permit renewal application," Cozzi said.
The Haines Borough on Feb. 4 renewed commercial heli-ski tour permits for Alaska Heliskiing, Southeast Alaska Backcountry Adventures and Alaska Mountain Guides for the 2013 season. Manager Mark Earnest is expected to determine allocations of skier days later this week.
Natalia Dodov, mother of an Alaska Heliskiing client killed during a March 13 avalanche, said she was left "speechless" and "disturbed" by Cozzi's decision to renew the permit. Guide Rob Liberman also died.
In a 15-page memo outlining her reasoning, Cozzi said Alaska Heliskiing failed to obtain a permit for use of state lands over multiple years of operation, failed to follow operating and safety plan accident reporting, failed to submit a mutual aid agreement, failed to file a report of employee death with the State of Alaska, twice flew out of bounds and posted inaccurate and misleading information on its website relating to guide certification and company safety standards.
The violations provided "a potential basis for permit denial," Cozzi said. "Alaska Heliskiing is warned that the above past conduct will be considered in any permit renewal in 2014 and that continuing violations ... may result in permit suspension or revocation
When asked what would constitute "substantial noncompliance," Cozzi said she determines that on a case-by-case basis and could not speculate, but pointed to her denial of Dave Button's Eco Orca Tours permit renewal application in 2005.
"It was sheer volume with Dave Button. There were a lot of very serious things. I'm not saying a death is not serious, but it's not against the law to have an avalanche on your watch," Cozzi said in an interview.
Button's permit denial stemmed from 85 customer complaints over a five-year period, a specific warning issued to the company the year prior to come into compliance with permit conditions, and several other factors. "My decision is consistent with the action taken with Mr. Button," Cozzi wrote.
Mayor Stephanie Scott agreed the government must be very careful in exercising due process when taking away a piece of property.
"The rationale that I learned from her analogy to the Dave Button case is that the violations resulting in the removal of a property right had to be repeated and over time. Certainly this was a notch in the belt on the road to revocation (for Alaska Heliskiing), but maybe not the final nail in that path," Scott said.
Natalia Dodov said borough officials were playing her family for fools. "She excused the company. Whatever they did, it doesn't matter. She doesn't see any risk for the clients and their safety. ... She admitted the things they did wrong, but then she excused them and gave them the permit anyway."
In the memo, Cozzi identified and addressed 12 complaints leveled by the Dodov family, who alleged various deficiencies in Alaska Heliskiing's operations related to the accident. Though Cozzi confirmed the validity of several of the complaints, the rest she either found unwarranted or lacking in sufficient substantiation.
The Dodovs took issue with specific aspects of Cozzi's memo, including her conclusion that it was "unlikely" that Alaska Heliskiing falsified an avalanche report in an attempt to retroactively downplay the avalanche risk on the day of the accident.
The Dodovs also did not think Cozzi adequately addressed the issue of the THC found in deceased guide Rob Liberman's blood during his autopsy. Cozzi said the borough requested the autopsy report, but the request was denied. (The state releases such reports only to family members and police agencies.)
The Dodovs said they would meet with their lawyer Wednesday morning to discuss options.
Manager Earnest can allocate up to 2,600 skier days between the three companies. Alaska Heliskiing has requested 1,400 days, SEABA has requested 1,000, and AMG has requested 450.
Earnest said Alaska Heliskiing's safety record and permit violations could affect how many skier days the company is allotted. Earnest said decisions regarding permit renewal and skier day allocation need to be based on objective facts, not gut reactions to tragic accidents.
"What is the real issue here, not the emotional issue? What are the facts? You have to base your decision, albeit it's a subjective decision, but it has to be based on some objectivity. It can't be done on emotion or perception or feelings," Earnest said.
Earnest said the memo explaining the renewal decision "certainly had a review and a lot of input from the borough attorney," Brooks Chandler.
Cozzi said she prepared the final draft of the memo, but said she worked with Chandler "quite a bit" in composing it.
Earnest said Chandler has not yet sent an invoice for his January work on the Alaska Heliskiing permit decision.
Cozzi's approval of the Alaska Helikskiing permit is conditional on the company receiving permission to operate on state lands.
David Kelly, regional manager of the Southeast office of DNR's Division of Mining, Land and Water, said the agency is not interested in punishing companies for past noncompliance. "We tend to work with people to bring them into compliance. Stuff happens. We try to help them rather than hinder them."
Cozzi said she feels confident in her decision to renew Alaska Heliskiing's permit, but that she is "by no means happy that this decision falls to the borough clerk."
"I'm always reluctant when I have to make a decision like that. And this was not an easy decision for me to make. But with my whole heart I do not believe that everything taken together rose to the level of denying a permit," Cozzi said.