Judge overturns Mallott on salmon habitat proposal

Alaskans seeking more protections for the state’s salmon notched a victory Oct. 9 when a Superior Court ruling overturned Lt. Gov. Byron Mallott’s denial of a ballot initiative to overhaul permitting laws for projects in and around salmon-bearing waters.

Judge Mark Rindner wrote in a 20-page order that the salmon habitat initiative does not prescribe how countless miles of state rivers and wetlands be used, but rather simply regulates the quality of that water while it is in use.

In September the Department of Law deemed the initiative, pushed by the conservation group Stand for Salmon, as an unconstitutional appropriation of state assets and thus recommended Mallott reject its inclusion on the 2018 statewide ballot. He did so Sept. 12.

The Alaska Constitution prohibits voter initiatives from appropriating state assets; that power is reserved for the Legislature.

In June, Assistant Attorney General Elizabeth Bakalar wrote a letter to initiative sponsors Mike Wood, a commercial fisherman, Bristol Bay lodge owner Brian Kraft and Gayla Hoseth of Dillingham, informing them that a prior version of the initiative would likely be denied because it was deemed to appropriate state resources.

At the same time, the state Supreme Court has instructed lower courts interpret initiatives broadly to give voters a say whenever possible, Rindner noted in his order.

“We need to have clear rules for projects proposed in sensitive salmon habitat to ensure they’re being done responsibly — as well as provide more certainty in the permitting process for the industry that is proposing the project. That’s exactly what this measure calls for. It works to ensure a prosperous economy for all Alaskans by bringing balance to our approach for permitting,” said Wood, who chairs Stand for Salmon.

The decision comes just six days after Bakalar and Trustees for Alaska argued the case in front of Rindner. The mining group Council of Alaska Producers also argued in support of the state’s position.

Trustees for Alaska is a nonprofit environmental advocacy law firm, which is representing Stand for Salmon in its appeal.

Bakalar contended in oral arguments that a plain-language reading of the eight-page initiative leads to the conclusion that fish habitat is prioritized above all other uses, namely any type of meaningful development. And she said Rindner needed to rule based on how voters would interpret the initiative in the voting booth.

Bakalar said, and Rindner similarly wrote, that the dispute is not over whether or not the initiative is good policy, but whether or not it ties the Legislature’s hands when deciding how to appropriate state resources.

History suggests the case is headed for the Supreme Court, as a high court ruling is the only way it is truly settled, but Bakalar wrote in an email to the Journal that evaluating whether or not to appeal will take several weeks.

Valerie Brown, legal director for Trustees for Alaska and the attorney who argued on behalf of Stand for Salmon, centered her argument on language in the initiative that mirrors what was in a 2008 ballot initiative attempting to restrict mine waste from being discharged into state waters.

Voters ultimately shot down that initiative but the Supreme Court upheld its constitutionality after a challenge by Pebble Ltd. Partnership, which similarly claimed it amounted to an unconstitutional appropriation of state water.

The habitat initiative aims to restrict developments that, even after attempts at mitigation, would inflict “significant adverse effects” on salmon streams.

The 2008 “Pebble” initiative looked to prohibit operations that “could adversely affect water that is used by humans or salmon.”

The current initiative would allow for developments that could restore damaged habitat in a “reasonable period.”

Council of Alaska Producers attorney James Leik told Rindner during the Oct. 3 hearing that Stand for Salmon just scattered the words “adverse effect” into the revised initiative to align it with the Pebble case. If so, it worked.

Rindner concluded there is leeway in the language for it to be a permissible regulation and not prescriptive appropriation in favor of fish.

“(The initiative’s) definition of ‘substantial damage’ leaves the Legislature the discretion to determine ‘accepted mitigation measures,’ what level of impact ‘adversely affects’ the habitat, the acceptable probability of recovery for fish habitat to ‘likely recover,’ and what timeframe constitutes recovery within a ‘reasonable period,’” he wrote.

If the Pebble initiative was constitutional, the one in question today is too because it also “leaves the Legislature discretion in its implementation through the use of a plethora of undefined terms,” Rindner continued.

Opponents argue the language ostensibly prohibits any large development that could result in such impacts, but the issue at hand is a matter of law and no one has been able to provide any evidence supporting that claim, according to Rindner.

“The impact of the initiative at this time is pure speculation,” he wrote.

He wrote further that the Legislature would still have enough room that it “could implement” the initiative in a way that allows development projects.

The state’s current salmon habitat law, Title 16, directs the Fish and Game commissioner to issue a development permit as long as a project provides “proper protection of fish and game.”

The petitioners contend that is far too vague and an update is needed to just define what “proper protection” means.

Rindner added that the argument purported by the Council of Alaska Producers that the initiative favors water for fish habitat mischaracterizes the basis of what the proposed law change is. That argument concludes that water is a public asset and fish habitat is how that asset is used, which is wrong, according to Rindner.

“The correct taxonomy is that water is a genus of public asset, and anadromous fish habitat is a particular species of public asset within the water genus,” he described.

“(The initiative) does not explicitly favor any particular use of anadromous fish habitat between recreational fishing, kayaking, commercial fishing, hatcheries, mining, pipeline, or dams; it only concerns itself with the condition of the water,” Rindner continued.

He ordered the Division of Elections to immediately begin printing petition booklets for the initiative and have them ready by Oct. 17.

Bakalar said that while the state obviously disagrees with the decision, officials have been working with Stand for Salmon during the litigation process to make sure the booklets were ready if need be.

Even a favorable court ruling does not mean the initiative will surely reach the 2018 ballot. The sponsors still need to get more than 30,000 signatures supporting it statewide before it can be fully certified.

Elwood Brehmer can be reached at elwood.brehmer@alaskajournal.com.

Updated: 
10/10/2017 - 4:01pm

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