Habitat initiative gets day in Supreme Court

  • Alaska Supreme Court Justice Craig Stowers, seen here at a 2010 hearing, and his fellow jurists questioned attorneys for the state and the backers of an initiative that would overhaul the state's permitting system as related to development impacting salmon habitat on April 26 in Anchorage. A ruling on whether it can appear on the November ballot is expected by September. (Photo/Mark Thiessen/AP)

The Alaska Supreme Court heard arguments Thursday afternoon over an initiative that would likely be the most contentious choice for Alaskans on the 2018 ballot outside of the governor’s race.

State attorney Joanne Grace, on behalf of Lt. Gov. Byron Mallott and the Division of Elections he oversees, argued that the Yes for Salmon ballot initiative is unconstitutional because it implicitly prohibits large development projects in the state that cannot avoid disrupting salmon habitat.

A de facto prohibition on such activity violates the Alaska Constitution, which gives authority to allocate state resources — in this case salmon habitat — to the state Legislature, according to state attorneys.

“Because (the Yes for Salmon initiative) bans any activity that displaces the habitat, that takes it out of the realm of regulation,” Grace said to the court.

Yes for Salmon is what the ballot initiative drafted by the Stand for Salmon organization has been dubbed.

Grace contended it gives the Department of Fish and Game, which issues development permits for anadromous fish habitat, no discretion in its decision because all activities determined to have a “significant adverse effect” on the habitat and in turn the fish are explicitly prohibited.

Chief Justice Craig Stowers asked Grace if the proposed change in law maintains the Legislature’s discretion by allowing lawmakers to define the meaning of “significant adverse effect” and other terms to Fish and Game.

Grace responded that the plain language of the initiative gives the department no discretion to grant permits for activities that will by their very nature permanently disrupt salmon habitat.

The initiative does allow for the habitat to be disturbed as long as mitigation countermeasures are on the same water body, in close proximity to the development and the habitat can be restored within a “reasonable period.”

“Mining projects routinely dewater and relocate streams, according to our affidavits,” Grace said, referring to documents submitted prior to a Superior Court hearing on the matter.

On Oct. 9, 2017, Superior Court Judge Mark Rindner overturned Mallott’s Sept. 12 rejection of the initiative petition, which was based on the Department of Law’s determination that it is unconstitutional.

Affidavits from Fish and Game and Department Natural Resources permitting officials asserted large mines, such as the large Donlin Gold mine proposed for the upper Kuskokwim River drainage that is at the end of a five-year environmental review, would likely not be allowable as planned under the Yes for Salmon language.

(More: Fish and Game outlines current best practices  for habitat permitting)

“If the habitat is never going to recover or be restored then ‘reasonable period’ has no meaning,” Grace said further, noting large mine tailings facilities that can cover hundreds of acres often remain after a mine is closed.

Valerie Brown, legal director for the Anchorage-based nonprofit environmental law firm Trustees for Alaska, rebutted the argument that the language of Yes for Salmon sets high permitting bars for project proponents to clear, but would not preclude any specific project or type of development from being allowed in the state.

“It’s a permitting scheme that allows the use of public resources without permitting harm,” Brown said in her opening remarks.

She said under the multi-tiered habitat permitting process the initiative would establish Fish and Game would first have to determine if an application necessitates the most scrupulous assessment under the “major permit” review tract. After that, the department would decide whether or not the proposed project would cause the significant adverse effects that are central to the debate.

If so, then onsite mitigation measures would have to be employed or the plans for the project would have to be amended, according to Brown.

She said it could force re-siting or the employment of new technologies to get below the significant adverse impact threshold, but “it wouldn’t ban all of anything.”

“It’s all about the amount of harm. The size of the project is irrelevant,” she added.

Justices questioned Brown on why the initiative includes impact mitigation restrictions if it is all about preventing harm and whether or not a project in the exploration or pre-development phase would be grandfathered in under the current law if the initiative passes in November.

Brown acknowledged the mitigation provisions are the most controversial parts of the law change, but said the mitigation sideboards are meant to protect the water body being disrupted.

“If you rehabilitate a wetland that’s 400 miles away you’re not really correcting the harm you’ve done,” she said.

Brown also speculated that a project in the works now, such as Donlin, would likely be under the new habitat laws when it moved to full development if Yes for Salmon passes.

The Court also has the option of striking specific provisions of the initiative as long as they maintain the spirit of the measure, an alternative Grace rejected and Brown deemed acceptable.

Grace contended the language of the complex bill is to intertwined to successfully pull apart and that removing the impact restrictions would leave a new but hollow permitting process.

On the other hand, Brown said that while that would be unfortunate, it would still put more structure and opportunity for public input into what Stand for Salmon alleges is currently an ad hoc process without public notices or comment periods.

Stowers questioned whether doing so would still meet the intent of the 40,000-plus Alaskans that signed petitions to get Yes for Salmon on the fall ballot, regardless of what the sponsors are ok with.

Both sides agreed a ruling by Sept. 1 would be acceptable. The Division of Elections has until Sept. 5 to print the ballot books for the November election.

Elwood Brehmer can be reached at [email protected].

04/27/2018 - 9:56am