Comments from Michael A.D. Stanley, attorney at law
 to U.S. Army Corps of Engineers Regulatory Branch, 
Anchorage, Alaska

December 18,1999


Michael A.D. Stanley, Attorney at Law
P.O. Box 020449
Juneau, Alaska 99802


U.S. Army Corps of Engineers Regulatory Branch 
P.O. Box 898 
Anchorage Alaska 99506-0898

Re: 1-990947

Dear District Engineer: 

I am writing in regard to the application by Alaska Cruises Inc. (reference number 1-990947) for a permit to place a "passenger exchange platform", i.e., a floating dock, and associated anchoring system at the upper end of Rudyerd Bay in Misty Fiords National Monument.

(MS) opposes the Alaska Cruises' project and requests that the Corps deny the permit. The basis for this opposition is set forth below.

As an initial matter, we raise two procedural issues. First, we question the propriety of the Corps continuing to process this after-the-fact application when the Corps has not yet concluded its investigation of the violation by Alaska Cruises or determined whether to take legal action. (We do not presume to tell you how to handle your enforcement cases, but it does seem that there should be some sanction for illegal conduct which netted Alaska Cruises over $ 500,000 (see Juneau Empire, Oct 12, 1999, page 9)). We understand there is a tolling agreement in place, so that Alaska Cruises cannot assert any statute of limitations, but this does not address the policy set forth in Corps regulations. Under 33 C.F.R. § 326.3(e)(ii), a determination to take legal action precludes acceptance of an after-the-fact application. I understand from discussions with your staff that the violation by Alaska Cruises is still under investigation and an enforcement response may yet be forthcoming. How can the Corps accept and process Alaska Cruises' application when the question of instituting legal action is still pending?

Second, the public notice is silent regarding what sort of environmental analyses the Corps has performed or intends to perform regarding this permit application. Under 33 C.F.R. § 325.2(4), the Corps is required to prepare either an environmental assessment (EA) or an environmental impact statement (EIS) unless the application comes within a categorical exclusion. Appendix B to Part 325, in § 6.a, identifies various categorical exclusions, including "fixed or floating ... small docks..." Is it the Corps' position that the project proposed by Alaska Cruises is categorically excluded? If so, we strongly urge you to reconsider that position, apply the extraordinary circumstances provision of Appendix B, § 6.b, and prepare an EIS. The proposal under consideration has potentially enormous environmental consequences in that it would open one of the most private, pristine and environmentally-sensitive areas of Misty Fiords, indeed, all of Southeast Alaska, to large-scale tourism development. Approval of this passenger exchange platform at the terminus of Rudyerd Bay will set a precedent for a proliferation of similar projects in this and other national monuments (e.g., Admiralty Island) and will essentially signal that no area is to be protected from the type of intrusive activity planned by Alaska Cruises. The Corps should, indeed, must analyze the environmental consequences of, in effect, adopting a policy that sensitive areas such as upper Rudyerd Bay may be developed with who knows what kind of floating structures and platforms to facilitate large numbers of tourists. The alternatives for that kind of development, including a no action alternative, must be analyzed in an EIS.

Turning now to its substantive comments.  (MS) opposes the proposed floating dock on both general and specific grounds. We will discuss these in order.

I. General Objection - Incompatibility With The National Monument

We submit that authorizing a seasonally permanent passenger exchange platform at the upper end of Rudyerd Bay is fundamentally incompatible with the status of the surrounding area as Misty Fiords National Monument. The standards established in both state and federal planning documents emphasize the need to protect the wilderness, wildlife and habitat values in this area. The Alaska Cruises' proposal is flatly inconsistent with these standards and should be rejected. In order to develop this general objection, it is necessary to review these plans in some depth. 

A. The Tongass Land and Resource Management Plan:

The United States Forest Service (USFS) has prepared a comprehensive land and resource management plan for the Tongass National Forest. Years in the making, this plan (herein "TLRMP") was most recently modified in April, 1999. The plan prescribes various land use designations (LUDS) for areas throughout Southeast Alaska, including Misty Fiords National Monument.

Misty Fiords National Monument was originally created by Presidential Proclamation in 1978. Proclamation 4623, December 1, 1978 (43 Federal Register 57087). Two years later, in December, 1980, Congress confirmed the special status of Misty Fiords National Monument in the Alaska National Interest Lands Conservation Act. Under TLRMP, the portion of Misty Fiords National Monument encompassing Rudyerd Bay is -classified as "Wilderness National Monument", or LUD WM. See TLRMP at 3-23. A stated goal for this LUD is: "To provide a high degree of remoteness from the sights and sounds of humans, and opportunities for solitude and primitive recreation activities consistent with wilderness preservation" Id. Recreation activities should be managed in a manner and at levels appropriate to the Recreational Opportunity Spectrum ("ROS") of the area. Id. (The various ROS settings are defined in the Glossary of TLRMP at 7-32.) We understand that the ROS of Misty Fiords wilderness is "Primitive," which means that there is a "very low interaction among users.. a very high probability of experiencing solitude... Evidence of other users is low... Motorized use is rare." TLRMP at 7-32. The plan also defines the desired condition of this type of LUD, including that "motorized and mechanized use is limited to the minimum needed..." Id. at 3-24. The proposal by Alaska Cruises is inconsistent with these goals and objectives.

The TLRMP identifies the standards and guidelines for the wilderness monument designation in a table that refers the reader to various sections of Chapter 4. Id. For purposes of this comment, we focus on the standards pertaining to Recreation and Tourism and Wildlife.

The Recreation and Tourism standards (starting at 4-35) are divided into three categories - inventory (REC I I 1), planning (REC 1 12), and administration (REC 1 22) The latter set of standards are intended to guide decision-making on development projects. A primary goal of these standards is to "develop and operate projects to complement wilderness management objectives and to avoid degradation of wilderness values." TLRMP at 4-37. This goal is thwarted by the type of project contemplated here, where a large fleet of float planes will, up to twice a day, each and every day during the May-September tourist season, offload 90 passengers to the platform and exchange them for 90 passengers who have debarked an Alaska Cruises excursion vessel. The noise and commotion associated with this activity clearly degrades wilderness values.

REC 1 22, Section II.A.2, prescribes guidelines for approval of recreation special uses, which this proposal would be. TLRMP at 4-37 to 39. The guidelines define both 96 major" and "minor" developments. The proposal here appears to fall somewhere in between these two definitions - a marina would be a "major" development while a "small dock" is considered "minor" (at more than 7,000 sq. ft., the proposed platform is hardly small!) But even if a project is classified as "minor", it is "Not Allowed" in a wilderness national monument. Id. at 4-39. How can the Corps possibly consider authorizing Alaska Cruises' passenger exchange platform when TLRMP very clearly states that such a development is "Not Allowed"?

REC122, Section II.A.3, also establishes guidelines for maximum recreation and tourism development. Among these are standards for flight-based sightseeing in terms of number of landings per day. As a Primitive ROS, the maximum number of landings per site per day is 3. TLRMP at 4-40. (For other ROS settings the maximum is 6 landings per site per day.) Alaska Cruises is a little vague about the number of planes that would be landing for each exchange, but with 90 passengers per exchange, it is fair to assume that there will be something on the order of 10-20 planes landing and taking off for each exchange. This far exceeds the maximum number. And that is only for a single exchange; the number of landings would be double for the two exchanges proposed by Alaska Cruises.

REC 122, Section II.A.4(d)(3)(b), comes into play as well. That section prescribes the size of the party that should be allowed into wilderness monument areas. It states that "a party size of no more than 12 persons for any one site or activity group" should be considered. TLRMP at 4-41 (emphasis added). Here, Alaska Cruises proposes to bring 180 people into the national monument for each exchange (exclusive of pilots and vessel crew). This is 15 times the number of people deemed appropriate for this area by TLRMP, and with 2 exchanges, the number of people would be 30 times what should be permitted.

Finally, REC 122, Section III.B. 7 (at 4-43) states what sort of visitor impacts should be expected. "In general, user expectations are for minimum signs of human- cause alterations at the primitive end of the ROS..." Judging from a sampling of public complaints about the Alaska Cruises' floating dock in Rudyerd Bay submitted to USFS (letters attached) the user expectation set forth in this section is clearly being frustrated. The Primitive ROS contemplates that no or infrequent sights and sounds of human activity are present." Id. at 4-46. This hardly sounds like a standard that can be maintained by authorizing a project where a large fleet of float planes will be landing and taking off twice a day throughout the tourist season.

In short, the passenger exchange platform for which Alaska Cruises seeks a permit is fundamentally incompatible with the Recreation and Tourism standards and guidelines established in TLRMP for Misty Fiords National Monument.

The project fares no better when measured against the wildlife standards of TLRMP,SectionWILD112,at 4-112 to l2O. UnderWILD112,Section ll. C, human use in boats should be managed "as necessary to achieve wildlife objectives." Id. at 4-112. Management should "emphasize [reduction of] human disturbance in high value habitat areas...." Id. As discussed more fully below, the State of Alaska has designated the upper end of Rudyerd Bay as a "habitat area" where "there is a diversity of resources...estuarine wetlands and concentrations of harbor seals and waterfowl ... There are also bear concentrations at the tideland/upland interface. At least one anadromous stream empties into this unit." Alaska Department of Natural Resources, Central Southeast Area Plan (Agency Review Draft, June 1999), Region 5 Tidelands Large Tract Summary at page 3 (re Unit KT- IO). A "habitat area" is defined in part as a C4 concentrated-use area for fish and wildlife species during a sensitive life-history stage where alteration of the habitat or human disturbance could result in permanent loss of a population or sustained yield of a species." Id. at Chapter 3, Page 3. The upper end of Rudyerd Bay is clearly a "high value" habitat area, and under both state and federal standards human disturbance is to be avoided or at least reduced. Alaska Cruises' proposal to land a fleet of float planes in Rudyerd Bay, twice a day, each and every day from May through September, will expand exponentially the amount of human disturbance to wildlife in the area and should not be allowed.

TLRMP, WILD I 12, also addresses impacts on individual species. We particularly draw the Corps' attention to the sections on marine mammals (VIl at 4-114), waterfowl (IX at 4-115) and mountain goats (XII at 4-117). Regarding marine mammals, activities should be conducted in a manner that avoids disturbances and which does not result in illegal "takings." In view of disturbing reports about how Alaska Cruises has operated the Majestic Fiord around a harbor seal haul-out in Rudyerd Bay, we think special caution should be given to possible impacts on marine mammals in this area. With respect to waterfowl, WILD I 12, Section IX.3 provides that facilities and "concentrated human activities" be located "as far from known waterfowl and shorebird concentration and nesting areas as feasible" and that in order to "minimize disturbance of waterfowl" development activities should be restricted "to periods when waterfowl are absent from the area." Id. at 4-115 (emphasis added). Finally, concerning mountain goats, which my client’s personnel have frequently observed on the flanks of the mountains surrounding Rudyerd Bay, we note that aircraft flights should be required to "maintain a 1,500 foot vertical or horizontal clearance from traditional summer and kidding habitat whenever feasible. Where feasible, flight paths should avoid known mountain goat kidding areas from May 15 through June 15." Id. at 4-117. We are concerned that these standards will be violated as the fleet of float planes working for Alaska Cruises makes its approach into the confined area of upper Rudyerd Bay and that the mountain goats there will be disturbed.

Thus, in looking at the standards and guidelines set forth in TLRMP, it is quite clear that the after-the-fact application submitted by Alaska Cruises should be denied.

B. The Central Southeast Area Plan

The Alaska Department of Natural Resources (DNR) has prepared a draft Central Southeast Area Plan (CSAP) that, when finalized early in 2000, will determine 44 management intent, land-use designations, and management guidelines that apply to all state lands in the planning area." The terminus of Rudyerd Bay is in this planning area, in Region 5 (Ketchikan). Chapter 2 of the CSAP defines land management polices by category of resources affected, much like TLRMP. The general policy is that "all authorizations for use of state land within the planning area will be consistent with the management intent of this plan." CSAP, Ch. 2 at 3. For purposes of this comment, we focus on the standards for fish and wildlife habitat, floating facilities, and recreation, tourism and scenic resources.

As discussed above, the CSAP designates the upper end of Rudyerd Bay as a habitat area. DNR recognizes that this area has "a diversity of resources ... estuarine wetlands and concentrations of harbor seals and waterfowl ... There are also bear concentrations at the tideland/upland interface. At least one anadromous stream empties into this unit." CSAP, Region 5 Tidelands Large Tract Summary at page 3 (re Unit KT- IO). Uses that would result in degradation of resources in such a habitat area "are to be initially considered incompatible with the plan's management intent and, specifically, with the 'Ha' designation." CSAP, Ch. 2 at 13. Degradation is recognized to occur as a result of several types of actions, including "disturbance during sensitive periods." Id. Table 2-1 (at 14) lists the sensitive periods for various species, including those found in Rudyerd Bay: harbor seals at haul-outs - late May through October; bears - during salmon spawning season; shorebirds - mid-April through mid-October. These are precisely the times when Alaska Cruises intends maintain its passenger exchange platform in this area and, twice daily, bring in an excursion vessel and land a large fleet of float planes. Such activity is highly likely to result in disturbance, i.e., degradation, of the resources in Rudyerd Bay and that activity should therefore be presumed to be incompatible with the CSAP.

The CSAP also contains specific policies regarding floating facilities. CSAP, Ch. 2 at 20-23. The plan is unequivocal: "floating facilities should not be authorized in the following areas: designated habitat areas (where it would be inconsistent with the resources identified for a particular parcel)..." Id. at 21 (emphasis added). This admonition is repeated: "DNR should not authorize floating facilities within areas of sensitive uses or habitats..." Id. at 22 (emphasis added). Rudyerd Bay is a designated habitat area and Alaska Cruises' proposal to maintain a floating platform in this area should not be authorized under the standards prescribed in these sections. The fact that the passenger exchange platform is only seasonal does not help: "Temporary floating commercial facilities shall not be sited in sensitive habitat, resource, or use areas ... and may not be sited in other areas unless they are a designated use or support a designated use in the plan." Id. (emphasis added).

Finally, we point to the standards specified in the CSAP for recreation, tourism and scenic resources. CSAP, Ch. 2 at 32-35. While the plan notes that Misty Fiords National Monument should be "managed for habitat or recreational uses," it also defines inappropriate locations for recreation facilities: "Recreation facilities are not appropriate where the management intent of this plan is to maintain the natural condition of the area free from additional concentration of recreation users or significant evidence of human use." Id. at 34.

In sum, assessment of the Alaska Cruises' project under TLRMP and CSAP leads to only one conclusion: the passenger exchange platform that Alaska Cruises proposes to place at the upper end of Rudyerd Bay is fundamentally incompatible with the surrounding area and is inconsistent with the standards and guidelines designed to protect the wilderness character of the area and its wildlife and habitat values. Under 33 C.F.R. § 320.4(e), the Corps is required to look to standards such as those set forth in TLRMP and CSAP in determining what values to consider in performing a "full evaluation" of the public interest. Indeed, "action on permit applications should, insofar as possible, be consistent with, and avoid significant adverse effect on the values and purposes for which those classifications, controls, or policies were established." Id. (emphasis added). Moreover, we submit that TLRMP and CSAP, and the standards and guidelines specified therein, should also be viewed as defining the nature of the public interest in Rudyerd Bay and Misty Fiords National Monument, and as reflecting the national concern for protection and utilization of important resources in that area, for purposes of the balancing test the Corps will apply.

Our comments now turn from this general point about the incompatibility of the proposed passenger exchange platform with Misty Fiords National Monument, to a discussion of some of the specific issues the Corps will be considering. II. Specific Objections Based on 33 C.F.R. § 320.4 Factors

The public notice for this project identifies a number of specific factors the Corps will be considering in evaluating the cumulative effects on the public interest. (MS) has concerns regarding a number of these factors.

A. Fish and Wildlife

Much of what we have to say about fish and wildlife is discussed above in connection with TLRMP and CSAP. We would only add that under 33 C.F.R. § 320.4(c), the Corps should take care to ensure that this project will not result in "direct and indirect" loss and damage, and that it will give "full consideration" to the views of the Fish and Wildlife Service, the National Marine Fisheries Service, and the Alaska Department of Fish and Game.

B. Aesthetics

As reflected in TLRMP and CSAP, much of the value ascribed to the wilderness area of Misty Fiords is its capacity to provide opportunities for solitude, for infrequent sights and sounds of human activity, as a place where one can experience a closeness to nature and tranquility (e.g., a Primitive ROS), and where interaction among users is low. A passenger exchange platform by which a fleet of 10-20 float planes will, twice a day throughout the period May-September, land, disgorge 90 passengers, take on another 90 passengers, then take off again, will absolutely destroy the aesthetic quality of the visitor experience in upper Rudyerd Bay. No matter that each exchange will, according to Alaska Cruises, be relatively short (do you really believe they will not linger in the area?) the wilderness experience will have been punctuated by a very loud, very disturbing intrusion of "industrial tourism."

C. Navigation

The upper end of Rudyerd Bay is a confined space. When my client’s vessels operate there, they often cruise to the head of the bay, to give its guests a chance to observe and experience what the area has to offer. The ability to maneuver in these waters will be significantly reduced by the passenger exchange platform proposed by Alaska Cruises. In addition, the flight path and landing area for the fleet of float planes servicing the platform will occupy another large portion of the upper bay, complicating navigation by other vessels in the area. In effect, the passenger exchange platform will pre-empt virtually all other vessels that may want to sail to the end of Rudyerd Bay, and they will be forced to stay well clear of the platform and the planes' flight path. Is this fair? Is it safe? Alaska Cruises violated the law here, piggybacking on, and then expanding, another illegal operation; why should it be allowed to have such exclusive use of the upper bay?

D. Economics

Economics is not a primary or even very significant concern for (MS) in this matter. However, it should be noted that there may well be adverse economic repercussions to (MS) and other low-impact tour operators by allowing Alaska Cruises to dominate an area such as upper Rudyerd Bay. If guests expect a trip where solitude and quiet normally feature prominently, how will they react when treated to the spectacle and noise, twice a day, of a fleet of 10-20 float planes landing and taking off nearby? The answer is that they will not react well and, in time, other operators will have little choice but to quit sailing there, to their economic detriment. By authorizing the passenger exchange platform for which Alaska Cruises seeks a permit, the Corps will essentially have granted that company exclusive rights to the terminus of Rudyerd Bay, effectively chasing all other operators out. Is this fair? Absolutely not!

Anticipating this exclusivity objection, Alaska Cruises says that it is prepared to lease or form some "businesslike relationship" which allows its passenger exchange platform to be used by other "commercial operators." See Alaska Cruises' Narrative at page 6 (accompanying the application package, filed under cover of a letter to Steve Meyers from Susan Bell, dated July 30, 1999). This claim does not address the concerns of those who are unwilling to submit to terms Alaska Cruises will dictate; they will still control who is in and who is out. However, the possibility that others will use the site does make one thing clear - the impacts from the tours that will be run into upper Rudyerd Bay twice a day by Alaska Cruises, as described above, is only the minimum. The Corps needs to factor into its decision on this application that flights into and dockings at the passenger exchange platform will likely be considerably higher than what is stated in the application itself. Would these other operators need permits? Or would they simply come under Alaska Cruises' permit, if one were issued? How can the Corps really evaluate the full impacts of this application without knowing what other users will be there?

This concludes my client's comment on the subject application. We thank the Corps for the opportunity to comment and for considering the views and concerns expressed herein. Again, we urge the Corps to deny the permit.

Sincerely, Michael A. D. Stanley

USFS - Misty Fiords Ranger District 
USFWS - Juneau Office 
NMFS - Alaska Regional Office 
DNR - Lands, Waters & Minerals, Southeast Region 
DGC - Governor's Office 
ADF&G - Habitat Division


Correspondence list

The Presidential Proclamation establishing Misty Fiords 

Letter from Rob Scherer to Misty Fiords Ranger Don Fisher regarding the  un-permitted floating dock in Rudyerd Bay, and other issues (September 29, 1992)

Letter from US Forest Service Ketchikan District Ranger to Rob Scherer responding to concerns about the un-permitted floating dock in Rudyerd Bay and other issues (December 12, 1992)

Department of Natural Resources management direction for tide and submerged lands (agency review draft, June 1999)

Excerpt from e-mail message from Jeremiah Ingersoll, Ketchikan District Ranger (July, 1999)

Letter from US Forest Service Ketchikan District Ranger to Alaska Department of Natural Resources regarding complaints about the un-permitted floating dock in Rudyerd Bay (July 20, 1999)

E-mail message from Rob Scherer to agencies and news media (August, 1999)

Letter to the Editor of the Ketchikan Daily News (September 13, 1999)

Comments to the US Army Corps of Engineers about the floating docks (December 1999)

US Forest Service

Southeast Alaska Conservation Council

Mike Stanley


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