The Haines Borough has legal standing to revoke Alaska Excursions’ Glacier Point 2018 commercial tour permit and/or deny renewal of the 2019 permit, borough attorney Brooks Chandler wrote in a memo to borough manager Debra Schnabel.
The borough assembly voted unanimously last month to direct Schnabel to seek legal counsel after assembly member Tom Morphet wanted to publicly discuss revoking or suspending the Skagway-based tour company’s permit.
In an email to Schnabel, Chandler wrote that any “spur of the moment motion to revoke the permit made during an assembly meeting or to direct you to revoke the permit has significant liability risks and will almost certainly result in automatic disqualification of assembly members from a subsequent appeal process due to bias.”
Joe Teig, an attorney representing Alaska Excursions, contacted Schnabel on Oct. 3. He said he had been “engaged with respect to recent Haines Borough Commerce Committee and assembly discussions regarding potential revocation and/or renewal of the AlaskaX Glacier Point tour permits.
In February, the assembly narrowly approved the company’s permits after 10 former employees criticized the company for maintenance and safety neglect. In July, a customer drowned after an outboard motor failed to go into gear, which resulted in a canoe overturning, spilling 11 people into rapids on the Davidson Glacier River—an event one former guide specifically warned the assembly could happen.
Alaska State Troopers and the U.S. Coast Guard responded. Troopers determined the death was an accidental drowning, but noted that the company’s motorized canoes were unregistered, and that the company needed to have rescue throw bags, both requirements under Alaska law.
Chandler’s memo said Schnabel has legal standing to revoke the permit. Code allows the manager to revoke a tour permit if a tour company violates applicable state law. The borough clerk may also deny a permit application for the same reasons.
“The failure to comply with state law registration and marking requirements for motorized ‘canoes’ constitutes a violation of an ‘applicable’ state law,” Chandler wrote. “This provides a legal basis for revocation of the 2018 permit pursuant to [borough code.]”
State law also requires vessels longer than 16 feet to carry a throwable flotation device— although kayaks and canoes are exempt. In his trooper report, Nick Zito wrote that he informed Alaska Excursions owner Robert Murphy that he “needed to have the required safety gear on board to include a throwable device.”
Chandler wrote that it is likely the company’s 31-foot motorized vessel is not a “canoe,” and that the lack of a throwable rescue device is also a violation of state law.
Chandler also wrote that there’s a broader basis for the borough’s denial of a permit renewal for 2019 than exists for revoking the 2018 permit.
“If the primary motivation is elevating a public policy of safe commercial tours that motivation is best expressed through the denial of a permit renewal request,” Chandler wrote. “This denial could focus on overall safety factors under the ‘protect public safety and welfare’ standard.”
Part of the purpose of requiring a commercial permit is to “protect public safety and welfare,” according to borough code. Tour operators must be considered “fit” and “able” to provide a tour. Chandler wrote that the word “fit” pertains to the competency and capability to provide service which include factors such as experience, licenses and certifications, and vessel and vehicle inspections. “Past safety history could be considered under the ‘fit’ criteria,” Chandler wrote.
“This necessarily includes the safety and welfare of the customers of permit applicants, all of whom are members of the public,” Chandler wrote.
The only Alaska Excursions employee to go on the record about the details of the accident is Callie Snyder. She wrote a letter to the borough assembly Sep. 24 where she defended the company’s safety practices. She said Murphy has done “everything within his power this summer to ensure” his tours at Glacier Point are safe. She said the company told her they would reimburse her for 75 percent of the cost of a wilderness first aid responder course and provided whitewater rescue training for the guides at the beginning of the season.
“Robert Murphy came out to train the canoe guides on delta landing procedures when he realized that a former manager had been remiss in his duties,” Snyder wrote the assembly. She said Murphy replaced all the old canoe motors with new ones.
There are two open lawsuits leveled against the company, one in district court and another in superior court. A woman is suing Alaska Excursions for negligence after she was injured on a zip line tour in 2017. Three plaintiffs led suit against the company in September for personal injury and or property damages that was “automobile related,” according to court records.
In August 2017, 28 tourists were injured after an Alaska Excursions Unimog touring vehicle went off the road in Skagway—injuries included broken bones.