Habitat initiative proponents argue appeal in Superior Court

Is there discretion in the term “significant adverse effects?”

That is the question at the center of the court debate over a ballot initiative aimed at reforming Alaska’s permitting laws to better protect salmon habitat from large development projects.

The Department of Law doesn’t think so, and Assistant Attorney General Elizabeth Bakalar stressed as much during about 90 minutes of oral arguments Oct. 3 in Anchorage for Stand for Salmon’s appeal of Lt. Gov. Byron Mallott’s rejection of the initiative, which was based on a Department of Law recommendation.

Superior Court Judge Mark Rindner heard the appeal.

Valerie Brown, legal director for the nonprofit environmental advocacy law firm Trustees for Alaska, argued on behalf of fellow nonprofit Stand for Salmon that the initiative entitled, “An Act providing for protection of wild salmon and fish and wildlife habitat,” indeed affords the Department of Fish and Game adequate discretion to determine what constitutes significant adverse effects on salmon habitat.

Mallott rejected the citizens’ ballot initiative Sept. 12 after receiving a legal opinion from Bakalar, who wrote that the proposed law change would blatantly limit the Legislature’s ability to allocate state assets; in this case anadromous fish habitat.

In June, 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.

The Alaska Constitution reserves the power of resource appropriation for the Legislature and thus prohibits ballot measures from doing so.

Brown repeatedly stressed that the initiative’s key language mirrors a 2008 initiative that was rejected by voters after making it to the ballot after being upheld by the Alaska Supreme Court.

In that case, the initiative, aimed at restricting discharges from the proposed Pebble mine, would have prohibited large mining operations from releasing or storing pollutants that “could adversely affect water that is used by humans or salmon.”

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.

Opponents in the mining, oil and gas, and construction industries argue the initiative would ostensibly prohibit projects of any meaningful size, including many pipeline and road construction efforts, among others.

Bakalar reiterated that argument as proof that the initiative would appropriate waters for fish habitat.

However, she said, “This is not a policy debate. It’s a question of Article XI, Section 7 (of the Alaska Constitution.)”

Bakalar added that the initiative’s language might indeed be good policy, but that is up to the Legislature to decide.

To that end, House Bill 199 sponsored by Rep. Louise Stutes, R-Kodiak, which mirrors the language in the voter proposal, is up for consideration by the Legislature come the regular legislative session in January.

According to Bakalar, even if the initiative is not a strict appropriation, Judge Rindner must rule on how voters would interpret the proposed changes in the voting booth. She said it “defies plain English” to read the language of the proposal as anything but putting water for salmon habitat above all other uses.

Brown said the current initiative in question would add scrutiny to the permitting process for large development projects but would still allow them to go forward if Fish and Game determined they would not have those “significant adverse effects” on salmon-bearing waters.

Additionally, the department would have the discretion to permit large projects even if they impacted salmon waters as long as mitigation and restoration measures helped the waters recover to be viable fish habitat in a “reasonable period,” as the initiative states.

“The definition of substantial damage includes the discretion of Fish and Game to determine how much harm is substantial damage so that makes it very similar to the Pebble case where the commissioner can allow some kinds of harm,” Brown argued. “He can’t allow harm that is so significant that it rises to substantial damage and that’s exactly the kind of regulation that’s allowed to prohibit harm to a state asset.”

The first iteration of the initiative also required restoration to support historic levels of water flow and fish populations, Brown noted, but that requirement was pulled from the version now in court.

“It would have to say no disturbance of fish habitat is permitted” to be an appropriation of assets, she added.

Brown said that the now-abandoned Chuitna coal mine, which Stand for Salmon fought to prevent, would have been allowed under the initiative if the habitat restoration methods proposed could be proven effective.

Bakalar noted that the initiative generally requires water restoration to account for the life cycle of salmon; meaning restoration could have to happen in such a short time frame to make it unfeasible.

“There’s simply no way to build some of these projects without dewatering habitat,” Bakalar said.

James Leik, arguing on behalf of the Council of Alaska Producers, a mining industry group, said the initiative is much broader than the 2008 Pebble case emphasized by Brown.

“Very fundamentally the initiative changes the priority for the use of these assets. That in itself restricts the Legislature’s ability to allocate those assets,” Leik said.

The petitioners simply “scattered the words ‘adverse effect’ into several of the provisions” of the revised initiative to make the claim it aligns with the Pebble case, he contended.

Brown rebutted that Rindner shouldn’t speculate on how Fish and Game would implement the provisions, but that he must only determine whether or not there is discretion in the language.

“The initiative doesn’t establish a preferred use as anadromous fish habitat. Anadromous fish habitat is the asset that’s being regulated and the question is: Is the initiative a permissible regulation of harm to that asset?” Brown said. “It’s clearly not a priority of use initiative; it is about protecting a specific asset, anadromous fish habitat, from harm.”

Rindner said he would rule on the appeal as expeditiously as possible, acknowledging trial court judges such as himself are often seen as “speed bumps” on the way to the Supreme Court, a nod to the almost certain appeal that will follow his ruling, whichever side it favors.

Elwood Brehmer can be reached at [email protected]

10/04/2017 - 12:14pm