This is the second of a two-part series. You can read the first part here.
The Alaska Department of Fish and Game is repealing and rewriting every management plan that regulates development in the state's wildlife refuges, sanctuaries, and critical habitat areas, known collectively as special areas. These areas were established by the Alaska Legislature to protect valuable concentrations of fish and wildlife and their critical habitats from incompatible land uses. Gov. Sean Parnell and his director of Habitat Division, Randy Bates, are revising the regulations in secret, with no public input.
Fish and Game biologists issue land-use permits in accordance with the enforceable regulations in the management plans, which generally encapsulate the advice of experts and public input during the planning process.
Unlike state or national parks, the existing management plans are rarely prohibitive. Most regulations allow activities providing they meet certain criteria, such as protecting critical habitats or avoiding disturbance during nesting or other sensitive periods. Biologists work with permit applicants and other experts to find acceptable conditions that will allow projects to be approved.
Habitat Division's record is remarkable. From 2008 to 2013 the division received nearly 700 permit applications for land-use activities in special areas. Of these, only four projects -- less than 1 percent -- were deemed incompatible with adopted management plans or regulations.
That's not nearly permissive enough for Bates. In an October 2013 email, he told his staff to eliminate all regulations that posed "unnecessary burdens to the affected public." According to Bates, one of the affected publics is people who want to operate jet skis in the Kachemak Bay Critical Habitat Area.
Another affected public is the oil and gas industry, which until recently was prohibited from parking jack-up oil rigs in the Kachemak Bay Critical Habitat Area. Bates believes that's an unnecessary burden too, so he's allowing it to happen even though bad experiences with similar rigs in the 1970s, chiefly a series of oil spills, led to the establishment of the critical habitat area and subsequent prohibition of jack-up oil rigs in the bay.
Bates likes to cite a third reason for revising management plans. The Legislature created the Redoubt Bay Critical Habitat Area "to protect and preserve habitat especially crucial to the perpetuation of fish and game, and to restrict all other uses not compatible with that primary purpose." Based on the statute, the management plan prohibited material extraction except for gravel under "extenuating circumstances" where there was a "transcending public need" for which there was "no feasible alternative."
Despite the regulation, Fish and Game's commissioner Cora Campbell issued a permit allowing Hilcorp Alaska LLC to extract boulders and rip-rap material to reinforce revetments surrounding its Drift River oil terminal so that it could resume storing oil in the shadow of Mount Redoubt, an active volcano. The permit allowed Hilcorp to dump fill in a salmon stream in the Redoubt Bay Critical Habitat Area and cross the stream up to 135 round trips per day with rock trucks, excavators and a front-end loader.
In September 2012, Cook Inletkeeper appealed the decision, arguing that boulders and rip-rap were not gravel, there was no transcending public need, and the material could feasibly be brought in by barge from someplace other than the nearby critical habitat area. Campbell denied the appeal because "only the applicant has the right to appeal a permit decision."
You read that correctly. Only a permit applicant has the right to appeal a decision. The public lost that right when Parnell axed Alaska's coastal management program.
Reasonable tweaks?
Despite incontrovertible evidence to the contrary, Bates believes all special area plans are overly restrictive. Bates believes the plans should have no outright prohibitions and provide no guidance other than that supplied in statute, which is often limited to a brief purpose statement. He directed staff to remove any restrictive language in the regulations.
In response to a flurry of concerns raised by staff when they were told to revise the plans, Bates concurred that the state has forfeited critical habitat to development and, as captured in the meeting's minutes, he "feels it, sees it, knows it, lives it." Bates told the biologists he was merely proposing "reasonable tweaks" to the management plans. He told his staff Vincent-Lang was "fully on board."
When a biologist asked Bates for clarification on how to write a regulation "that would be enforceable but yet only provide guidance to a permitter," Bates opined that much of the relevant information for a permit decision could be found in the background information included in a plan. If anyone needed to ascertain the intent of a regulation, he thought it should be spelled out in the resource inventory, the portion of a plan that summarizes fish and wildlife resources in the area along with past and present human uses. But he didn't want staff to waste any time updating the resource inventories.
Commissioner Campbell told Alaska Public Radio Network that repealing prohibitions in special areas would give more discretion to state biologists. Likewise, Bates argued that management plans are restricting permitting decisions, and he would like to "retain as much authority for these decisions as possible for our division biologists." This is bureaucratic double-speak. Biologists who attempt to attach conditions to a permit in the absence of enforceable regulations will quickly find themselves without a leg to stand on.
To do a good job a biologist will have to reinvent the planning process for each application, finding and consulting with experts and weighing the needs of the applicant against the purposes for which the special area was established. It will require a disproportionate amount of time to contact people and investigate all potential concerns and affected resources in a particular area. With a heavy workload, pressure from Bates to approve projects, and every reason to believe they'll be punished for doing a good job, it's more likely that biologists will do nothing of the kind and merely rubber-stamp all proposed projects.
Cloaked in secrecy
Rewriting the 17 existing special areas plans would normally be a massive undertaking. In addition to involving the public, past planning efforts have relied heavily on input from other state and federal agencies. Bates believes interagency coordination is largely unnecessary. In fact, in documents leaked to Alaska Public Media, Bates directed his staff to avoid involving other agencies, including other divisions of Fish and Game, as well as the public.
In an October meeting, Bates told his staff he didn't want them to discuss incipient revisions with the public. In response to a question whether the public should be informed about the abrupt cessation of work on the four management plans, Bates said that was "certainly beyond what is necessary" although he wanted staff to conform to the letter of the law.
Bates directed staff to immediately summarize any conversations with Wildlife Division staff, including all salient facts, and forward them for his review. Furthermore, he wanted to review any requests for information from the media, public, or other agencies before they were addressed.
I experienced the gag order in writing this column. Biologists were unwilling to discuss what was happening and, after Bates acknowledged receipt of a list of questions, I waited more than three months for answers that never materialized.
Protection from incompatible uses
The Parnell administration's effort to rewrite all special areas regulations is not only unparalleled in scope, it is unusually duplicitous. Parnell knows what to say, even when he doesn't believe a bit of it. When asked to comment on the federal Environmental Protection Agency's review of the Pebble Project, Parnell claimed, "I believe that a well-managed, scientific permitting process with public input should determine whether a project moves forward. Politicians shouldn't be picking which projects get developed and which don't -- that leads to a corrupt 'buddy-buddy' system where friends are rewarded rather than science and the public dictating outcomes."
And yet his man Bates is bent on replacing the state's special area regulations -- which were originally developed in a careful and balanced manner using science and public input -- with a "buddy-buddy" system.
Here's an example of what might transpire when permitters have no recourse to goals or enforceable guidelines. According to Lance Trasky, a former regional supervisor with Habitat Division, a permit applicant in the Susitna Flats refuge wanted to prohibit all public hunting near their proposed facilities. Their wish wasn't granted, but expect more of the same nonsense when industry is allowed to dictate what is and is not allowed in the state's refuges, sanctuaries and critical habitat areas.
Parnell has also said, "As my record demonstrates, I will not trade one resource for another, and every permitting application -- when filed -- deserves scientific and public scrutiny based on facts, not hypotheticals." Actually, his record demonstrates no such thing, and his plan to rewrite special areas regulations is a prime case in point.
Every sweeping change Parnell implements to make it easier to issue permits makes it more difficult to conserve fish and wildlife. After Bates gets through revising the management plans, Fish and Game will have little authority to protect fish and wildlife in special areas. In fact, its permitting authority won't be much different from that on any other state lands. That's not what the Legislature intended when it created each special area.
Legislatively designated refuges, sanctuaries, and critical habitats need protection from incompatible uses. Perhaps the same coalition of commercial fishermen, sport hunters, anglers, tribes, and environmentalists that defeated HB 77 will insist that the Parnell administration back off its effort to gut the state's special areas management plans.
It would be smart to begin to familiarize yourself with the plans soon because you might only get 30 days to defend the first eight special areas when their revised regulations are released in December.
Rick Sinnott is a former Alaska Department of Fish and Game wildlife biologist. The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch. Contact him at rickjsinnott(at)gmail.com.