Judge blocks Dunleavy administration rule allowing personal watercraft on Kachemak Bay

A Superior Court judge in Anchorage dealt a blow to people using Jet Skis, Sea-Doos and other personal watercraft on Kachemak Bay. But officials with Gov. Mike Dunleavy’s administration say the issue is not yet resolved.

The opinion from Judge Adolf Zeman Thursday said the Alaska Department of Fish and Game acted “outside the scope of its delegated authority” when it repealed a ban on personal watercraft within the boundaries of two conservation districts encompassing Kachemak Bay.

Zeman ruled in favor of four conservation groups that alleged Dunleavy’s Fish and Game commissioner did not have the power to get rid of a ban on personal watercraft from the Fox River Flats and Kachemak Bay Critical Habitat Areas. Critical Habitat Areas are an official designation created by the Alaska Legislature in the early 1970s 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,” according to Zeman’s ruling.

The two protected areas encompass the tidal flats at the top of Kachemak Bay past the Homer Spit and well beyond Seldovia at the bottom of the Kenai Peninsula.

According to Homer harbormaster Bryan Hawkins, a “handful” of people have launched personal watercraft from city facilities over the last year.

“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 of the Kachemak Bay Conservation Society, one of the plaintiff groups involved in the lawsuit, in a statement. “Jet skis are just not compatible with the primary purpose of these critical habitat areas.”

Fish and Game in 1999 started looking into the possibility of allowing personal watercraft into the protected areas but repeatedly determined their use was at odds with the conservation measures at the heart of the critical habitat designation.

In its case to the court, the state argued that the ban was an “overburdensome regulation not supported by any scientific studies,” and that technological progress has made personal watercraft clean and quiet enough to no longer merit special treatment under habitat protection rules.

After a public comment period, Fish and Game Commissioner Doug Vincent-Lang signed the personal watercraft ban repeal in November 2020, and it went into effect in January 2021. Four months later, the plaintiffs filed their civil suit demanding that the ban go back into effect.

Judge Zeman’s ruling orders the state to reinstate the ban in the two critical habitat areas.

A spokesperson for the state called the decision “a little mind-boggling in its legal gymnastics.”

“The entire point of regulations is that the agency has discretion to implement its programs within its statutory authority, and if you adopt a regulation, you should be able to determine when the regulation is no longer necessary,” said Patty Sullivan with the Alaska Department of Law.

She added that the department is evaluating its next steps but plans to keep defending Fish and Game’s efforts to repeal the ban.