June 11, 2012
Daniel S. Sullivan
Commissioner, Department of Natural Resources
550 West 7th Avenue, Suite 1400
Anchorage, AK 99501-3650
Dear Commissioner Sullivan:
Re: Appeal of Decision by DNR granting Land Use Permit # LAS 28297
Pursuant to 11 AAC 02.030, the individuals and organizations identified in Attachment A appeal the granting of Land Use Permit # 28297 by the Southcentral Region Land Office, Division of Mining, Land & Water, to John Lang dba The Alaskan Wet Dog Race (hereinafter WDR). This appeal includes the permit executed May 22, 2012, the Memorandum of Decision and Attachment A dated May 18, 2012 and the amended Memorandum of Decision and Attachment A, dated May 22, 2012. We have been advised by DNR staff that pursuant to 11 AAC 02.040(a), the twenty day appeal period commenced upon the issuance of the Amended Memorandum of Decision and Attachment A dated May 22, 2012. This appeal is based on both substantive and procedural issues.
The primary substantive basis for this appeal is the total failure of DNR to have undertaken an in-depth, comprehensive analysis of the impacts a race of 1000Â jet skisÂ over 2,000 miles will have on state waters, lands, wildlife and on affected coastal communities and concurrent users of the state waters (e.g., kayakers, subsistence and commercial fisherman, etc.) The vast majority of comments received expressed specific concerns about the impacts the race would have on the stateâ€™s natural resources.
There is nothing in the record which shows how or whether the review weighed these adverse impacts against the benefits or how it was able to conclude that awarding the permit would be in the best interest of the State of Alaska. The failure to undertake an appropriate and scientific review apparently led DNR to erroneously conclude that race impacts would not be harmful or could be mitigated by the sponsorâ€™s promised actions. (See Memorandum of Decision: â€The environmental risks associated with the proposed Land Use Permit are minimalâ€.)
DNR seems to have treated this application as a routine land use permit request. A race of this length and in such waters has never before been organized or conducted anywhere, much less in Alaskaâ€™s waters. The dismissive, cursory responses to public comment set forth in the Issue Response Summary (IRS) are evidence of the superficial review undertaken. In fact, however, this event will create a multiplicity of adverse impacts as stated in the vast majority of comment letters received. One thousand jet skiers traveling for 2000 miles, with no observers, racing for a million dollar first prize, demands a serious response from DNR. Moreover, the race is being promoted (see WDR website) to be the premier, international, world-class endurance race for jet skiers in the world and as a money-maker for the checkpoint communities and Alaskan tourism.Â Like it or not, DNR is the gatekeeper in this matter and, by opening the gate, it must then take responsibility for all that follows from its decision. It should have taken into consideration that should Mr. Langâ€™s marketing be successful, DNR likely will find it impossible to deny future permits or impose more stringent controls in future years.
We further appeal on the grounds that in awarding this permit to Mr. Lang, DNR has failed to manage and protect the very resources it is charged to manage and protect. Instead of the type of in-depth substantive review required of this precedent-setting commercial activity, DNR has apparently decided that the sponsorâ€™s promises and non-legally binding rules will control the conduct and behavior of the racers, and therefore the stateâ€™s waters, lands and wildlife will be protected from race impacts.
We recognize that Article VIII, Section 3 of Alaskaâ€™s Constitution mandates multi-use of state lands, waters, fish and wildlife. However, the concept of â€œcommon useâ€ contained in Article VIII means â€œreasonableâ€ use and does not permit DNR to manage a use or user group to the detriment of the common resources. It does permit DNR to impose restrictions.
- Failure to protect Alaskaâ€™s wildlife
A cursory review of the comment file indicates that of the 97 communications received, 12 were supportive of the race while 85 raised various objections and concerns about the race as proposed. The vast majority of the 85 communications raised concerns about the adverse impacts the race would have on wildlife: the seabirds, marine mammals, fish and other mammals, due to the noise, air and water pollution and visual disturbance created by jet skis. For example, racers will enter Cook Inlet beluga whale critical habitat, creating noise disturbances that could deflect whales from feeding areas, scare off prey and disrupt whale communications. Extensive expert comment about possible harm to specific species and recommendations for appropriate mitigation measures were received from public authorities, organizations and individuals with scientific expertise.
Since all communications received by the due date are already part of the administrative record, we are not repeating them here.Â However we cite specifically (and incorporate by reference the issues raised by) the letters of: US Fish and Wildlife Service, dated January 26, 2012; National Marine Fisheries Service (NOAA) dated December 27, 2012; NPS (Kenai Fjords, Lake Clark and Katmai National Park &Preserve) email dated January 6, 2012; ADF & G memorandum dated January 26, 2012; Center for Biological Diversity letter received January 26, 2012; Alaska Quiet Rights Coalition letter dated January 19, 2012; Alaska Audubon email of January 4, 2012; Gulf of Alaska Keeper letter dated January 26, 2012 and Cook Inletkeeper communication. In addition to the scientific studies referenced in the above comments, additional scientific studies showing the adverse impacts jet skis have on wildlife are listed in Attachment B.
DNRâ€™s Response to Issue: The application proposes to deal with wildlife impacts by: mandatory education on harassment and pertinent state and federal laws; race rules, and various individual GPS and tracking devices showing locations to be avoided and the location of racers. However the comment letters clearly indicate that those who reviewed the application found such proposed measures insufficient. The record does not show how DNR resolved these comments or considered them not valid. The only exception is Mr. Langâ€™s agreement to work with the agencies, and vice versa, to develop a detailed, color coded map showing sensitive areas to be avoided by the racers.
Appeal: There is nothing in the record which shows how DNR analyzed the risks to wildlife which the experts identified or the basis on which it concluded that mapping, strict rules and education would mitigate the impacts to a degree which would permit such a race to be run. For example, what information does DNR have that allows it to ignore the possibility raised by the Fish and Wildlife Service that Stellerâ€™s eiders will be present?
Where does DNR address the likelihood that individual racers will disregard the boundaries of sensitive areas for the sake of saving time or deliberately harass marine animals like seals or sea otters to get them out of the way or drive through a flock of seabirds resting on the water? There will be no observers, this is a race with a purse of $1 million and there are no qualifications except to be 18 years old and have a sponsor with $35,000.Â Where has DNR challenged Mr. Langâ€™s contention, based on his personal experience, that driving a jet ski through a flock of birds, at the same speed, is less of a harassment than slowing down or stopping when an ADF & G biologist recommends a different course of action?
Mr. Lang, in his responsesÂ to ADF & G seeks to minimize the impacts 1000 racers on jet skis will have on the natural resources by arguing that DNR must treat the 1000 racers as if they are simply members of the general public. DNR appears to agree with this nonsensical position though 1000 members of the general public do not put to sea together (over 5 days), go to the same refueling stops or race. The cumulative impacts of this number of jet skiers on wildlife, water and other resources must be analyzed and mitigated by binding, enforceable rules designed specifically for the impacts posed by this event.
B) Failure to protect the stateâ€™s waters
DNR has apparently concluded that the planâ€™s provisions will prevent pollution of the stateâ€™s waters from oil and gas. No analysis is provided. We contend that it will be impossible for this race to be conducted without polluting spills. Such pollution affects not simply the quality of the water, but all the wildlife dependent on the stateâ€™s waters, from fish to birds to marine mammals.
First, there is the issue of fuel supply to the checkpoints. Mr. Lang has estimated that each racer will use 500 gallons which means 4 miles to the gallon.Â This race will require a total of 500,000 gallons be made available among the 18 checkpoints. (We note that the checkpoint information on the WDR website indicates that in 9 or half of the checkpoints no determination has yet been made that public fuel is available.) Regardless of the number of checkpoints finally determined to have appropriate fuel and infrastructure, a half million gallons of additional fuel will be needed to be brought into the area, chiefly by boat (except for the road-connected communities of Valdez, Seward and Kenai), delivered and unloaded, all with the risk of spills.
Secondly, the application says that racers will refuel only at the checkpoints, but each machine can carry up to four six gallon cans of extra fuel. Jet skis can be refueled at sea as well as at the checkpoints. Due to the different models of jet skis which may enter, with differing sizes of gas tanks, it is impossible to make other than a very general estimate of how often refueling will take place. If you use the general rule of thumb that a jet ski can go 50 miles on a tank, that means each machine would need to be refueled forty times or a total of 40,000 refueling events for the race. Assuming a 12 gallon gas tank and 24 gallons of extra fuel being carried would mean that the jet ski could go a total of 4 x 36=144 miles with two refueling events. Looking at the distance between checkpoints, there are only a few where the mileage is such that the racer would not need to refuel at all; most require refueling at least once and for three of the legs: Cordova to Seward (161 miles), Seward to Kenai (240 miles) and Sandpoint to Cold Bay (169 miles), one wonders how it can be done at all. In addition to the risks of spills generated by the 40,000 refueling events, the application indicates that drivers of 2-stroke jet skis must do their own mixing of their oil and gas formula which creates more possibilities of spilling petroleum products into the stateâ€™s waters.
DNRâ€™s response to issue: DNR does not mention, acknowledge or discuss the attendant risks that supplying an additional half million gallons of fuel to the checkpoints could arise. DNR apparently relies on the assurance that all jet ski refueling, except in emergencies, will take place at the designated public checkpoints and that, in any case, the race rules requires those who spill to clean it up or to remain in the area until help comes if they and their partner are unable to clean it up.
Appeal: There is nothing in the record that DNR considered the risks to polluting the waters of the state from the importation of 500,000 gallons of fuel. There is no analysis of the possible harm to the stateâ€™s waters from spills resulting from the roughly 40,000 refueling events or the likelihood that such spills will be cleaned up in the middle of a race. We grant that each such spill may involve only small amounts of fuel, but the point is the cumulative number and effect which may be significant.
- Failure to protect the stateâ€™s uplands
DNR has failed to consider the impacts 1000 people could create on the uplands from voluntary and involuntary landings, leaving human waste and trash. Once again, DNR has simply accepted Mr. Langâ€™s assertion that the racers will deposit all waste and garbage at the checkpoints, racers will only land due to emergencies, and all racers will be educated to follow â€œLeave No Traceâ€ guidelines should they use the uplands.
Any scrutiny of the distances between the checkpoints would lead a reviewer to realistically conclude that racers will voluntarily go onto the shorelands and, depending on the tide, the uplands, in order to wait out the weather and rough seas, refuel, eat, rest, go to the bathroom or even camp. Fatigued racers with little or no Alaskan experience, motivated by a million dollar purse, will not practice safe landings on marginal shorelines and once on shore, observe â€œLeave No Traceâ€ protocols.
Moreover, there is nothing in the application that demonstrates all identified checkpoints have the necessary infrastructure to house, feed, refuel and supply bathroom facilities to accommodate whatever number of racers are gathered at any one time.
DNRâ€™s response to issue: There is no analysis or discussion wherein DNR considers the likelihood, or frequency, of racers accessing the uplands for other than emergencies and the resultant impacts.
Appeal: Without considering the possibility and probability of multiple landings on state lands, DNR has failed to fulfill its duty to protect the lands it is responsible to manage. The $1000 bond provides no guarantee that the applicant will follow through with his promise to send a boat to each checkpoint after the race to gather up trash and broken jet skis or enable DNR to perform the cleanup work. Â Moreover, as pointed out in the letter from the Chugach National Forest, â€œrace planners should be required to conduct clean-up operations along the entire race route, to prevent floating debris from washing up on the uplandsâ€; not just the checkpoints.
We appeal the permit, the memorandum of decision (MOD) and issue response summary (IRS) also on procedural issues discussed below.
- The permit states it is effective April 1, 2013 to May 31, 2015; the MOD states that the â€œEffective use dateâ€ is April 1, 2013 through May 30, 2018.
- This stipulation, General Stipulations 3 (b), is entirely inappropriate: â€œTemporary signs should be posted on the Richardson Highway alerting motorists to the hazard of vehicles turning and pedestrians crossing the highway on the curve.â€
- The identification of the checkpoints in the amended MOD do not match the application.
- The IRS on pages 2 and 3 refers to â€œGenerally Allowed Uses for State Watersâ€; such a document does not exist. In point of fact, it is only in DNRâ€™s â€œGenerally Allowed Uses on State Landâ€ Fact Sheet that any reference is made to â€œjet-skiâ€, in the context of â€œwatercraftâ€ which is permitted to be used â€œwithout damaging the land, including shoreland, tideland, and submerged landâ€. Nowhere does it state that watercraft can travel through state waters. Moreover, the regulations in 11 AAC 96.020 which establish the generally allowed uses do not define â€œwatercraftâ€, so jet-ski is not set forth in the regulations.
- The IRS, page 2, states that the WDR has contacted each checkpoint and has determined that proper infrastructure exists. There is nothing in the record which supports this conclusion; in fact p. 1 of 6, AKWD Response to ADF & G specific Comments on Wet Dog Race Packet indicates that not all checkpoints have been explored.
- The IRS, page 4, responds to the issue of â€œNo Set Race Courseâ€ with: â€œThe Alaskan Wet Dog Race has submitted a race course.â€ This is not correct. Mr. Lang has said repeatedly and clearly that no designated race course will be set that racers must follow. Instead, racers may take whatever course they chose between checkpoints (avoiding sensitive areas).
- Applicability of regulations and statutes used in review
1) The application was processed and a permit granted as a land use permit under AS Â Â 38.05.850. The race is all about 1000 racers traversing the stateâ€™s waters and, in fact, Mr. Lang has denied that state lands will be used at all except in emergencies. We appeal the permit and the MOD on the grounds that the process used in granting a permit relied, inappropriately, on statutes and regulations which do not address the stateâ€™s waters to be used.
- The regulations at 11 AAC 05.010(e) (9) require that â€œan annual fee of $50 per acre with a $100 minimumâ€ be set for the Annual Use Fee. Since hundreds of acres of state land, not just five, will be involved in this race, the amount of $250 does not meet the requirements set forth in the regulations. The fee must be adjusted upward to reflect the actual amount of acres of state land that will be used by the race.
- Performance Guarantee: The bond is to be calculated according to 11 AAC 96.060(b) which states: â€œThe department will determine the amount of the security, if required, based on the scope and nature of the activity planned and the potential cost of restoring the permit site.â€ We appeal the bond amount required, $1000, as failing to be calculated in accordance with the regulations.
This race involves hundreds of thousands of acres of state land and waters, so the â€œsiteâ€ is enormous. And as discussed earlier, state-financed clean-up costs to restore the â€œpermit siteâ€ could be enormous. Secondly, the bond amount does not reflect the â€œnature of the activityâ€ for which the permit is granted. For example, the public comments from Alaskans experienced in navigating in these waters, pointed out repeatedly that these waters are too dangerous for such a race and a permit should be denied. Accordingly, it is reasonable to assume that rescue operations will be needed and that the bond amount should cover state costs involved in search and rescue operations.
Instead, DNR has apparently relied on Mr. Langâ€™s assurance that since over 110 or 120 boats will be placed under contract to act as safety vessels, it will not be necessary to involve any public resources in rescue, safety or mitigation efforts. But, there are no requirements that any of the safety boats have medical personnel or equipment or even have suitable rescue equipment or expertise.Â Alaskan waters are dangerous and unpredictable, very few of the 1000 participants will be familiar with the dangers of these waters and it is a race with the winning purse of $1,000,000.
All these factors make it more likely than not that serious search and rescue operations will have to be undertaken and that public resources, including more than the Coast Guard, will be called into action. The bond should be of such an amount to ensure that Mr. Langâ€™s various promises will be kept and, if not, that the state has ready access to the necessary funds through the bond.
In view of the substantive and procedural issues discussed above, pursuant to 11 AAC 02.030(a) (10), we request that land use permit LAS 28297 be rescinded.
Submitted by Susan Olsen, President, Alaska Quiet Rights Coalition, on behalf of Appellant Organizations and Individuals listed in Attachment A
Attachment A: Listing of Appellant Organizations and Individuals
Attachment B: Listing of Studies of adverse impacts of jet skis on wildlife
Alaska Quiet Rights Coalition
P.O. Box 202592
Anchorage, AK 99520