By Tom Morphet
State park ranger Joel Telford said he would be improving markers in
the eagle preserve after Haines magistrate John Hutchins last week dismissed a citation
against tour operator River Adventures for allegedly operating jetboats in a non-use area.
Company owner Don "Duck" Hess was cited by the state
Department of Natural Resources for operating a boat June 7 in Bear Lake, a shallow body
of water north of Kelsall Landing on the upper Chilkat River that is off-limits to
commercial tours due to sockeye salmon spawning and rearing.
The company’s permit for operating in the preserve prohibits entry
into the lake, but allows boats in the lake’s entrance channel. Hess and wife Karen
Hess, a former Haines deputy magistrate, argued that the lake entrance was not clearly
delineated and the state’s maps of the area were based on ones more than 50 years
old.
Although the state provided photographs of the alleged violation taken
by a state fisheries technician as well as a witness to the incident, magistrate Hutchins
said the state failed to positively identify the location of the photographer in the scene
and the angle at which the photographs were taken.
The technician who took the photos was out of state and did not
testify.
"Generally, the photographer would be here to say where he
was," Hutchins said. "We’re trying to go backwards and establish the
initial foundation we need. We should have the foundation first."
Ted Lambert, who was on a crew with the photographer, but a distance
away in a different boat when the photographs were taken, said the jetboat was in the
lake. "I’d have to say it was in the open part of the lake. It was beyond the
narrow channel."
Karen Hess said the state had never taken the company to the site to
show the boundary between the lake and channel, but Lambert said the distinction was clear
to him. "I can see this is where the channel is and this is where it broadens
out."
Park ranger Telford provided an aerial photo and drew a line showing
what he considered the boundary between the channel and the lake, but Hutchins
characterized Telford’s line as an "impression," explaining afterward that
it was difficult to see how the photo correlated with a map of the area.
"In order to protect habitat, the state has a duty to mark it.
What’s prohibited and what’s not should be clear," Hutchins said. From the
maps and photos, he couldn’t determine the boundary between the lake and channel, the
magistrate said.
Hutchins noted that the state placed demarcation buoys in Sheep Canyon
Lake, another area closed to jetboat tours. "The state has to mark enough to give the
operator a fair chance to know what’s prohibited."
Telford said he’d meet with Fish and Game this spring to more
accurately identify and mark sensitive fish habitat in the preserve. Telford told the
court that River Adventures had a good operations record with the state.
Nancy Berland of Lynn Canal Conservation, which has been critical of
DNR policing of River Adventures, disputed that characterization. LCC has generated a list
of what it says are three other incidents of operation in non-use areas witnessed by Fish
and Game and seven notifications from the state for incidents ranging from creating large
wakes in a no-wake zone to failing to revegetate riverbank dating back to 1996.
Responding to the list, Karen Hess said her company has held a preserve
permit since 1991 and never was told it needed a permit for its floating dock. Riverbank
erosion at its property near Wells Bridge was caused because Fish and Game required the
company to pull its floating docks annually between 1997 and 2005. To pull them, heavy
equipment had to be used at the river’s edge, Hess said.
"If anyone thinks that River Adventures’ boats are eroding
the river banks, please explain to us how the banks at 15 Mile are eroded, just like the
upper river, and our boats don’t run in that area. The Chilkat River erodes its own
banks..."
Hess called other items on the list unsubstantiated allegations.
After the court hearing, Telford said some of the incidents on
LCC’s list were a concern for his agency, but that others couldn’t be positively
substantiated.
"Something may be a big violation but whether I can take it to
court and win with it is a different thing," Telford said.
"Lynn Canal Conservation has an agenda of shutting down River
Adventures, and with that, they’re obviously scrutinizing River Adventures very, very
heavily."
Telford characterized violations of tour permits as commonplace.
"Every operator in Haines has some issues. If we wanted to, we could go down and shut
down every operator in Haines, with one or two exceptions. We’re committed to working
with the community to make these permits work."
He referred to parking by tour vans along Chilkoot River as an example
of a situation where the state could issue multiple citations, but doesn’t.
