Salmon habitat initiative can appear on ballot, with changes, Supreme Court rules

ANCHORAGE (KTUU) - The Alaska Supreme Court has ruled that Ballot Measure 1, known more commonly as “Stand for Salmon,” can appear on the ballot in November, once its unconstitutional provisions are removed.

MGN PHOTO: Salmon underwater

“Even absent the specific bars to granting permits in certain situations, (the initiative) would make Alaska’s anadromous fish habitat protection statutes significantly more restrictive by enacting a comprehensive regulatory framework and permitting scheme,” the justices wrote.

The Supreme Court says Lt. Gov. Byron Mallott, whose office is in charge of elections, should certify a revised version of the proposal. Mallott refused to certify the initiative twice, saying it amounted to an appropriation of state assets barred for initiatives by the Alaska constitution.

Mallott’s denial was based on the Department of Law’s concerns that the initiative amounted to an “allocation of resources” that the Constitution – and the Supreme Court – has only granted the Legislature. The case was then taken to court. The state argued that the initiative would prevent “the use of even a single waterway for a major development project,” which the Legislature should have the authority to do.

Stand for Salmon argued that the initiative’s intent was to protect and preserve fish and wildlife habitat, did not target any specific use, and left discretion to the Legislature when it comes to implementing the proposed law.

A Superior Court judge agreed with Stand for Salmon, and the state appealed the decision to the Supreme Court.

Wednesday’s decision from the Supreme Court notes that the court has often been asked to decide which initiatives are an “appropriation” of state resources. In an earlier case, the Court had explained that its decision in cases like this was to ensure that the legislature, “and only the legislature, retains control over the allocation of state assets among competing needs.”

“It is clear that (the initiative) narrows the legislature’s range of discretion to make decisions regarding how to allocate Alaska’s lakes, streams, and rivers among competing needs,” the court wrote. It found that two provisions of the initiative would explicitly restrict the Fish and Game commissioner’s discretion to make allocation decisions.

The first portion in question requires that the commissioner may issue a major permit to an applicant “only if” the activity “will not cause substantial damage to anadromous fish habitat.” It then explicitly defines “substantial damage” as an activity in which the anadromous fish habitat “will be adversely affected such that it will not likely recover or be restored within a reasonable period to a level that sustains the water body’s, or portion of the water body’s, anadromous fish, other fish, and wildlife” that depend on the habitat.

The court found that, despite Stand for Salmon’s arguments that vague terms like “adverse effects,” “likely,” and “reasonable period” give Fish and Game and the Legislature discretion, a project like a mine or a hydroelectric dam could never fall into the permissible category as defined by the proposal.

“Where a project like a mine or hydroelectric dam would permanently, and perhaps irreversibly, displace fish habitat, there is no reasonable interpretation under which that habitat would not suffer ‘substantial damage’ as the initiative defines it.” The court wrote. “If the habitat has been permanently displaced, it cannot be ‘likely’ for that habitat to be restored within a ‘reasonable period,’ because it will never be restored.

Another part of the proposal explicitly said that “an anadromous fish habitat permit may not be granted” for activities that affect fish habitats in specific ways listed in six subsections. The court found that under that provision, there would also be activities that would not be allowed “by any reasonable interpretation” of the initiative.

The court found that once taken out, the rest of the initiative can be validated as long as the standalone proposal can be given legal effect, the deletion of the earlier-referenced portions does not substantially change the spirit of the proposal, and that it is evident that the sponsors would prefer the measure to stand as altered rather than be invalidated entirely.

The court said there are still a number of substantive provisions in the proposed law, without the two provisions that explicitly prevent the Fish and Game commissioner from making certain permitting decisions. Habitat protection standards, a new permitting process that distinguishes between minor and major permits, and a presumption that most natural water bodies are protected fish habitat, and other portions are named, among others.

Four of the five Supreme Court justices agreed, with Justice Winfree disagreeing, saying that more of the provisions should have been cut out as similar appropriations.

Three sides, more or less, have emerged in the debate as far as the Supreme Court case is concerned. Stand for Salmon and the State are in opposition in the court case, and a group called “Stand for Alaska” is working to quash the proposition altogether.

[RELATED: Proposed ballot measure could divide voters on permitting in salmon country]

Stand for Salmon, which put the initiative forward, said while the removal of the parts deemed unconstitutional “will remove important salmon protections,” it was glad that the court “agreed that Alaskans should have a right to vote on the issue.”

"Today's court ruling affirms what over 40,000 Alaskans have asked for - the right to vote on this timely ballot initiative,” said Stephanie Quinn-Davidson, a sponsor of the measure. “Despite removing some of the stronger provisions in the measure, this update to our habitat law is a tremendous improvement over our current vague, ineffective law. Alaskans are ready to take matters into their own hands and vote yes to protect salmon for future generations."

Stand for Alaska, which includes oil companies, Alaska Native Corporations, construction companies and labor unions among its membership, says the court’s decision “validates just how flawed and poorly crafted the measure is,” but called the court’s decision concerning.

“The actions taken today by the Court are without precedent and should concern voters across the state,” the organization wrote. “This measure still replaces our science-based habitat management system with untested regulations that will result in job loss and kill current and future, vital projects.”

The state of Alaska says it agrees with the decision and says it will strike the unconstitutional portions and revise the summary for the ballot to reflect the changes.

The initiative will be on the ballot for the statewide general election, November 6.

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