Supreme Court parses, approves salmon habitat measure for ballot
The Alaska Supreme Court approved most, but not all, of the contentious ballot initiative aimed at strengthening the state’s salmon habitat protections in a decision issued Wednesday morning, meaning the initiative will be on the November ballot sans one key provision.
The five-member court unanimously ruled that language in the proposed law change requiring the Department of Fish and Game Commissioner to deny permit applications for development in salmon habitat if the activity were deemed to have a “significant adverse effect” is an unconstitutional limitation on the Legislature’s authority to appropriate the state’s resources.
That’s because the language would mandate the state to value anadromous fish habitat over other resources, according to the justices — a balancing act that the Alaska Constitution specifically reserves for the Legislature.
“(W)here a project like a mine or a 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 48-page opinion states. “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.”
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.
The Supreme Court decision remands the case back to Rindner, who is to direct Mallott and the Division of Elections to put the initiative on the Nov. 6 ballots.
Ryan Schryver, director of the nonprofit leading the initiative effort Stand for Salmon, said in a brief interview that the group is naturally disappointed that the court struck a small but significant provision of the law change.
However, Schryver stressed the group is happy that, “The heart and soul of what we’re trying to do remains intact.”
He said the initiative is still fundamentally about making sure the state’s economically and culturally important salmon resources are protected while assuring industry has clear and predictable development standards.
Stand for Alaska, a counter-campaign supported by the state’s oil and mining industries as well as Alaska’s Native regional corporations with the exception of Bristol Bay Native Corp., which has taken a neutral stance on the initiative, said in a prepared statement that the courts decision to strike a portion of Ballot Measure 1 “validates just how flawed and poorly crafted the measure is.”
“Even with today’s changes, 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 statement reads. “Stand for Alaska remains strongly opposed to the misguided measure that threatens our jobs, communities and way of life.”
Justice Daniel Winfree agreed the “significant adverse effect” language needed to be struck for the initiative to comply with the Constitution, but he partially dissented with the overall ruling because he doesn’t believe it went far enough. According to Winfree’s dissenting opinion, there is not reasonable way to interpret the habitat protections and mitigation requirements that would not effect a resource appropriation.
“Where the court and I diverge is with other (initiative) provisions that, while not explicitly prohibiting the Legislature from allocating anadromous fish habitat, would have the same practical effect,” he wrote.
Stand for Salmon representatives insist the initiative would mainly codify best practices Fish and Game currently uses in evaluating development permits in salmon habitat and would protect those actions from being degraded by political influence.
Stand for Alaska alleges the group is attempting to severely restrict, if not altogether stop, substantive development statewide.
Attorney Valerie Brown, who argued on behalf of Stand for Salmon in front of the court, emphasized that provisions detailing what constitutes healthy salmon habitat remain intact after the ruling. Those provisions deal with water quality, maintaining stream flows and require any mitigation to offset unavoidable habitat damage be done within the impacted water body.
“The habitat standards are a huge improvement over current law because they are actual standards Fish and Game must apply when they’re considering permits, so it’s definitely a step in the right direction,” Brown said.
Currently, Title 16, the state’s anadromous fish habitat permitting statute, directs the ADFG commissioner to issue a development permit as long as a project provides “proper protection of fish and game.”
The initiative sponsors contend that is far too vague and an update is needed to just define what “proper protection” means.
In early 2017, Alaska Board of Fisheries chair John Jensen sent a letter to legislative leaders urging them to update Title 16 with opportunities for public involvement in permit application reviews and enforceable development standards.
Brown also noted that other parts of the proposal dealing with public process were not impacted by the court’s decision.
“One of the other provisions that will definitely go forward that is a huge leap forward over current law is the provisions for public notice and public comment on large projects that could cause a lot of harm to salmon habitat. This will be first time we have a chance to participate in those.”
The fact that salmon habitat permits are one of the only environmental permits the state issues without notifying the public has been a rallying point for initiative supporters.
While state Department of Law attorneys originally argued the provisions of the initiative were too intertwined to sever without wholly discarding it, Attorney General Jahna Lindemuth said in a formal statement that the court confirmed Law’s understanding of the powers and limitations of a citizens’ initiative in the state Constitution.
“That limitation extends to the Legislature’s power to allocate the state’s resources — including fisheries and waters — among competing uses,” Lindemuth said.
She also thanked the court for its unexpectedly quick ruling on the case, which will provide the Division of Elections additional time to prepare ballot materials in advance of the November election.
The state had asked the court for a ruling by early September, just ahead of a deadline for the Division of Elections to have general election information ready to distribute to voters.
The Wednesday morning release of the ruling also caught folks involved in the case by surprise. The court has historically handed down its opinions on Fridays, almost without exception.
Elwood Brehmer can be reached at [email protected].