State appeals habitat initiative ruling

  • An exploration rig is seen drilling at the Donlin gold mine site. The proposed mine wouldn’t be permitted under a proposed habitat initiative that was ruled constitutional by a Superior Court judge on Oct. 9, according to an affidavit filed by official with the Alaska Department of Fish and Game. The state is appealing the ruling to the state Supreme Court. (Photo/Courtesy/Donlin Gold)

The ballot initiative proposed to strengthen laws protecting salmon habitat is headed for a supreme resolution, which doesn’t bother the initiative’s primary sponsor.

On Oct. 20 the state Department of Law appealed to the Alaska Supreme Court to have a Superior Court ruling upholding the initiative on constitutional grounds overturned.

Subsequent to that, Lt. Gov. Byron Mallott wrote a letter to lead sponsor and Cook Inlet commercial fishermen Mike Wood informing him of the administration’s decision to appeal the Oct. 9 Superior Court decision. Mallott stressed in his one-page letter that the appeal is meant to settle a legal issue, not a political one.

“Although I believe an appeal was the right thing to do, I want to make it abundantly clear that this decision is based solely on the Alaska Department of Law’s unbiased analysis of the constitutionality of your proposed initiative,” Mallott wrote in the second sentence of the letter.

The lieutenant governor — whose primary responsibility is to oversee state elections — also noted the Law Department has requested expedited consideration of the time-sensitive issue to ensure it is resolved in time for next year’s elections if the initiative ultimately succeeds.

“Despite the spurious claims that my stance is solely political in nature, I want to remind you and all Alaskans that when I became lieutenant governor in 2014 I took an oath of office and swore to ‘support and defend the Constitution of the United States and the Constitution of the State of Alaska,’” Mallott wrote further. “I do not take those words for granted. I also believe this is an important issue that our highest court should ultimately decide.”

Attorney General Jahna Lindemuth echoed Mallott in a formal statement issued by the Department of Law.

“We take no position on whether (the initiative) is good policy. This is about the Superior Court’s legal conclusion and our duty to defend the Alaska Constitution, and we believe the Superior Court got it wrong,” Lindemuth said.

Wood said in an interview that he understands the public perception bind the issue has put Mallott and Gov. Bill Walker in.

“They have to do this. This isn’t a surprise,” Wood said of the appeal. “In many ways, I’m like, ‘go for it,’ let them push it that far. I think we’ll come out on top in the end, which will just strengthen our position.”

Mallott refused to certify the “Stand for Salmon” ballot initiative Sept. 12 based on a Law Department opinion that concluded the changes to state law in the language of the measure would constitute prioritizing using state waters as salmon habitat above all other uses, such as in industrial or infrastructure developments.

The Alaska Constitution prohibits citizen initiatives from prescribing such resource allocations; that power is reserved for the Legislature.

However, Superior Court Judge Mark Rindner overturned Mallott’s rejection Oct. 9, ruling the initiative, which aims to prevent projects that would have “significant adverse effects” on salmon waters as a resource regulation, not an allocation.

Wood also chairs the nonprofit group Stand for Salmon. He and other supporters of the law change contend the current language in Title 16, the state’s fish and game habitat permitting statute, which state’s the Fish and Game commissioner shall approve projects that “provide for the proper protection of fish and game,” is too ambiguous and has been eroded over time.

Industry groups including the Resource Development Council for Alaska and the Alaska Chamber insist enacting the initiative would kill any meaningful development right down to local infrastructure projects, such as roads, bridges and utility projects.

In July, the heads of the 12 Alaska Native regional corporations signed a joint letter opposing the ballot measure.

Jason Metrokin, CEO of Bristol Bay Native Corp., which has led the fight against the proposed Pebble mine — a project the initiative sponsors have said they also hope to stop — wrote in a statement for the Journal that notwithstanding BBNC’s position on Pebble, the corporation believes developments that align with local opinion and don’t threaten fisheries should be allowed to proceed.

BBNC also opposes House Bill 199, which largely mirrors the initiative language, and the Stand for Salmon initiative.

“Each would unnecessarily and negatively impact resource development projects and potentially the subsistence activities upon which our shareholders depend,” Metrokin wrote. “Accordingly, BBNC is interested in working with the Walker administration, the Legislature and all stakeholders to appropriately update Title 16’s anadromous fish habitat provisions.”

House Bill 199, sponsored by Rep. Louise Stutes, R-Kodiak, and the initiative were spurred in large part by an open-ended January request by the Board of Fisheries to update Title 16 at the behest of fishing groups. Similarly, the Kenai Peninsula Borough Assembly unanimously passed a resolution last year asking for further habitat protections in Title 16, which hasn’t been changed since statehood.

Cook Inlet Region Inc. CEO Sophie Minich co-authored an op-ed opposing the initiative while the Eklutna and Chickaloon Native village councils — comprised of CIRI shareholders — have supported HB 199 in written testimony to the Legislature.

CIRI spokesman Jason Moore said the regional corporation respects the rights and motivations of the Tribal organizations on this issue, but added that the initiative could restrict economic development opportunities on CIRI land that would ultimately benefit its shareholders.

“We just think this measure is trying to solve a problem that doesn’t exist,” Moore said.

On Oct. 18, RDC Executive Director Marleanna Hall, Alaska Chamber CEO Curtis Thayer and Doyon Ltd. CEO Aaron Schutt and Joey Merrick, a manager for the Laborers’ Union Local 341 filed with the Alaska Public Offices Commission to form Stand for Alaska, a group aimed at campaigning against the initiative.

Hall said in an interview that the language in the measure “would leave too much speculation and uncertainty” for developers regarding what would be allowable disruption and mostly ignores accepted mitigation practices to improve habitat in one area of another is damaged.

She also questioned why the sponsors are not being asked to prove why the initiative is necessary, saying that goes back to her belief that it is “seeking an answer to a problem that doesn’t exist.”

“This initiative goes way beyond what the original request was from the Board of Fish to the Legislature in January. It goes way beyond our existing regulations that are already protecting fish habitat,” Hall said. “I think people get really excited about something that they get emotional about instead of looking at the facts.”

Supporters insist the measure allows for habitat disruption if corresponding mitigation and recovery efforts are made to the same water body.

A court affidavit submitted prior to the Oct. 9 Superior Court ruling by Alvin Ott, a fisheries biologist and manager in Fish and Game’s Habitat Division states that Ott believes the current plan for the massive Donlin gold mine proposed for the Upper Kuskokwim River drainage would not be permissible under the initiative because it calls for destroying American and Anaconda creeks.

As an offset, Donlin is planning to enhance coho salmon rearing habitat in nearby Crooked Creek; however, such mitigation to an offsite stream would not be sufficient under the initiative, which requires that the impacted waters eventually be restored, according to Ott.

Wood contends the initiative would provide industry interests clarity around about what activities are allowable, instead of relying on the open-ended “proper protection” phrase.

He and other initiative backers have also said the only reason Alaska’s premier salmon fisheries have not been damaged so far is the state’s large mines are in the Interior and other areas away from large salmon runs.

“We’re trying to make sure that industry can continue with assurances on both sides that it won’t affect fish. This is not designed to stop development at all. This raises the bar again,” he said.

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

Updated: 
10/25/2017 - 10:29am

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