Pardoned company played role in Habitat Division move

Posted: Sunday, March 04, 2007

Former Gov. Frank Murkowski's difficult-to-explain pardon of a Washington state company for the death of one its employees may have been the last shot in his campaign against what he considered overly tough environmental regulation.

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As part of that effort, the Murkowski administration moved the state's Habitat Division from the conservation-oriented Department of Fish and Game to the development-oriented Department of Natural Resources. The move of the division was bitterly opposed by biologists in the division, but Murkowski cited an unreasonable delay to a hydroelectric project at Power Creek near Cordova as one of the reasons for moving the division.

Murkowski at the time issued a press release showing workers on the project painstakingly washing rocks before placing them in the river.

The contractor on that project was Whitewater Engineering of Bellingham, which later received the pardon.

Whitewater was convicted of criminally negligent homicide after a worker on the Power Creek project was killed in an avalanche.

Thom Fischer, owner of Whitewater, blamed state habitat protection biologists with the Department of Fish and Game for not only the project delays but also the worker's death.

Fischer said habitat biologist Jeff Davis at the time had ordered the worker into an avalanche chute, and his company was targeted for prosecution because he stood up against excessive regulation.

"I was adamant that we don't have environmental people telling people when and where to work," he said.

Davis, no longer a state employee and now living near Talkeetna, was mushing a dog sled towards Nome and was unavailable for comment, his wife said.

A former Fish and Game regional supervisor who worked with Whitewater in Cordova, however, doubted Fischer's claim that a fish biologist ordered a Whitewater crew into a danger zone.

"They wouldn't hardly even listen to me when I had the authority to tell them what to do to comply" with stream protection rules, said Dave Ryland, now with the Department of Natural Resources.

Fischer said the death at Power Creek was just one more incident in which environmental protection measures put workers at risk. Whitewater was forced to work against its will at a time of high avalanche risk to protect fish, he said

"Our workers did not want to go there," he said.

Occupational Health and Safety investigators and state prosecutors said it was Whitewater's cavalier attitude toward worker safety that resulted in the death, and recommended Whitewater and Fischer each be prosecuted for criminally negligent homicide.

Fischer pled guilty on Whitewater's behalf, in exchange for the charges against him personally being dropped. It was that charge that Murkowski's pardon wiped away, and with it an unpaid $150,000 fine, which had grown to about $250,000 with interest.

Fischer maintains that it was excessive government environmental regulation that was to blame for the death, not his company.

"We put the environment in front of the safety of our people, and it ended up with a worker getting killed," he said.

When Murkowski took office, he wanted to rein in the power of environmental regulators such as the Fish and Game's habitat protection biologists.

One of the examples he used in convincing the Legislature to go along with the move was Whitewater's Power Creek project. Fischer provided Murkowski's staff with a photograph of workers on the project washing rocks, citing it as an example of wasteful over-regulation.

Habitat biologists disputed Whitewater's characterization in testimony before the House State Affairs Committee, but the Legislature did not stop Murkowski from transferring the division.

A worker chose to hose off the rocks so as to not muddy salmon spawning areas downstream, they said. Whitewater could have chosen to use clean excavated rock, but chose instead to wash boulders they already had, he said.

The State Affairs Committee at the time was chaired by then-Rep. Bruce Weyhrauch, R-Juneau. He later represented Whitewater in its quest for the pardon.

Fischer said he thinks his complaints about the Fish and Game biologists were instrumental in getting Habitat moved to the Department of Natural Resources, including job losses from those who were laid off or chose to quit because of the change in focus.

Murkowski "fired all those Fish and Game Habitat people and it was in part for what happened at Power Creek," he said.

Murkowski left after his term on an ocean liner trip, and was unavailable for comment.

Game Commission member and former House Speaker Ben Grussendorf, D-Sitka, fought the move of the Habitat Division, which he said was done to weaken environmental protection.

"The Murkowski administration was pretty much geared to big industry," he said.

Gov. Sarah Palin criticized the Habitat Division move during her campaign and made what sounded like a promise to move it back to Fish and Game.

In February, however, she decided to leave it in Natural Resources for now. A legislative effort to force a return appears stalled.

Grussendorf said the governor appeared to be making a considered study of the issue, and that's what she should be doing.

"There are strong indications that she's seriously thinking about Habitat and where it should go. And at the same time, you don't want to be too disruptive," she said.

• Pat Forgey can be reached at

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