Story last updated at 3:54 p.m. Thursday, May 23, 2002

Kachemak Selo man battles creek, the law
By Sepp Jannotta
Staff Writer

Kachemak Selo resident Frank Martushev's battle with Fox Creek has landed him in hot water with the law after Alaska State Troopers say he was operating his bulldozer in Fox Creek.

Martushev's wonders if maybe global warming is the reason Fox Creek is starting to eat away at his 64 acres.

After videotaping Martushev's D-8 Caterpillar working in Fox Creek from the air early this month, troopers visited his property and cited him for construction without approval on a salmon stream, a misdemeanor.

Charging documents from Trooper Todd VanLiere, a Fish and Wildlife Protection officer, allege Martushev diverted Fox Creek from its natural embankment by placing logs in the creek with his bulldozer.

The charges are based on the observations of VanLiere and fellow trooper Travis Bordner as well as those of a team from the Homer Soil and Water Conservation District.

What VanLiere, Bordner and Fish and Game habitat biologist Stewart Seaberg all observed on a close inspection was a 400-yard section of bank on Martushev's side of the creek that had been reinforced with gravel bulldozed up from the creekbed.

Martushev, who had obtained a permit in 1999 to reinforce the banks of the creek, said Wednesday he was stunned to learn of the charges.

"I thought, maybe 15 minutes of Cat work and everything will be solved," he said. Besides, Martushev said salmon no longer return to the creek now that the Department of Fish and Game no longer stocks Caribou Lake.

When Martushev got permission from Fish and Game to work on the bank in 1999, he said he hired a contractor to shore up the bank with logs. At that time, Martushev said, the bulldozer was also in the creek and was seen there by people from the Soil and Water Conservation District.

Now, he doesn't understand what he's done wrong.

The law states that a permit is needed to do construction work on a salmon stream, Bordner said.

Seaberger said that Martushev's 1999 permit shouldn't have entitled him to be running his Cat in the creek.

"Even with the a permit, you would not to be doing what he was doing," Seaberger said. "Typically you don't get into the creek."

The damage to the creek looked severe, Seaberger said, adding. "We see this as a very significant (infraction). One of the worst that I've ever seen."

As far as long term damage to habitat and impact on juvenile salmon residing in the area, Seaberger said without an extensive study, it was hard to tell. He said he was sure that if any tiny salmon were present in the gravel creek bottom, they were likely dead.

For his part, Martushev expressed his frustration that the state expected him to stand by while the creek washed his land into the bay.

"The water doesn't wait, it washes every second," he said after explaining that was sure that warmer-than-normal summers were producing the floods. "This creek never used to run this way."