Supreme Court backs
borough on Button

By Tom Morphet

Citing “a pervasive lack of concern for public safety,” the Alaska Supreme Court last week upheld the Haines Borough’s decision in 2005 to deny a tour permit to operator Dave Button.

The state’s high court found “substantial evidence” to support five of the borough’s seven findings for denying the permit, determined the borough didn’t violate Button’s due process rights and ruled that permit denial was not inappropriately severe.

The decision finalizes a case that involved three appeals and four borough attorneys, and cost the municipality between $75,000 and $90,000 to defend. The high court awarded the borough $1,000 in attorney’s fees.

“I’m ecstatic,” said former borough attorney Bob Blasco, who argued the case before the Supreme Court. “We prevailed in all respects. All of Mr. Button’s arguments were rejected.” 

The borough had logged more than 85 complaints against Button when he operated under permits here between 1999 and 2004.

Borough clerk Julie Cozzi started action against Button in August 2004 after getting new information on misconduct and allegations, including that Button violated a borough ordinance, tried pressuring a fast ferry captain to overload the vessel and had violated Coast Guard regulations and a borough tour operator code of conduct.

In the course of his three appeals of Cozzi’s permit denial, Button had admitted to using a passenger as crew in order to circumvent Coast Guard regulations and acknowledged that a charge that he used children to pressure a fast ferry captain to overload his boat “could have happened.”

The court denied Button’s procedural charges against the borough, including his claim of bias by former borough manager Robert Venables, who acted as hearing officer during Button’s administrative appeal to the borough.

“The manager and assembly were better suited than we to determine the best interest of the Haines community,” the court wrote on the severity of the permit denial. “They had a reasonable basis for concluding that non-renewal was necessary, given that lesser prior measures – the admonishment and the suspended revocation proceeding in 2004 – appear to have been ineffective.”
     Former borough assemblywoman Deborah Vogt, an attorney who donated her time to represent the municipality during Button’s appeal to state Superior Court, said the decision was “absolutely a victory for the borough.”

“It affirms the validity of the tour permit process and the validity of the borough’s administrative procedures… It’s a victory that the borough’s tour permit standards have been tested an upheld,” Vogt said.

Other municipalities already are looking at the case as a helpful one, she said.

The expense of defending the borough decision was necessary for upholding borough law and for sending a message to others who hold borough permits, Vogt said.

“It’s one of those things you have to litigate. You can’t send a message that you can be a scofflaw and go ahead and act as you please… It shows everybody out there who’s operating under a (borough) permit that we stand by the law and they have to follow it. They can’t make a big enough mess that (the borough) won’t pursue it.”

Button this week said he was disappointed with the ruling and, as he has previously, characterized his problems as an attempt by larger tour operators to squeeze him out of the local market.

“They exaggerated their case and overdid it and picked on me because of my success.  There were flaws in my business. I’ll admit that, but doing business in Haines isn’t easy,” Button said.

Button said he has a home here, and isn’t gone from Haines or the local tour industry. He operates Dolly Varden Tours, a tour booking agency, and said his Eco-Orca Tours is running a Zodiac boat in Skagway to Dyea.

“I’d like to do business there but I’ll wait out this year and re-evaluate it, and see if any cruise ships come to Haines. I’m not giving up. My plan is to get back to the tour business in Haines,” Button said. He said he may file for another tour permit when the borough assembly’s composition changes.