A decision over the constitutionality of a proposed ballot initiative that would update Alaska’s 61-year-old fish habitat permitting law is now in the hands of the Alaska Supreme Court.
The court battle ignited when Lt. Gov. Byron Mallott, on the recommendation of the Alaska Department of Law, declined to certify the ballot initiative that the nonprofit Stand for Salmon wanted to get on the ballot.
The problem, according to Stand for Salmon, is that current law directs the Alaska Department of Fish and Game to approve any resource extraction proposal near salmon streams unless the plans are insufficient for the proper protection of fish and game, but that the language is too vague to guide decisions on projects that have potential to irreparably harm salmon, like the proposed Pebble mine.
Stand for Salmon contends that by simply updating the law, Alaska can limit damage to salmon habitat, so that wild salmon runs remain strong for future generations.
After their petition was rejected by Mallott, Stand for Salmon filed a lawsuit in the Alaska Superior Court. Superior Court Judge Mark Rindner granted summary judgment to the plaintiffs, after finding that the petition employed a constitutional use of the initiative process, and ordered Mallott’s office to produce petition booklets. Backers of the petition then began efforts to gather the 32,000 signatures needed to put the measure on the ballot.
The state responded by appealing the matter to the Alaska Supreme Court.
“The question of whether a proposed ballot initiative makes an appropriation is an important constitutional question that should be answered by the Alaska Supreme Court,” said Alaska Attorney General Jahna Lindemuth.
The state takes no position on whether the initiative is good policy, she said.
“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. “The Alaska Supreme Court’s case law on initiatives prohibits the type of resource allocations that (the initiative) 17FSH2, by its terms, makes a foregone conclusion.
“The Legislature – and only the Legislature – can decide how to allocate this public asset among industry, fisheries, and other competing interests and uses.”
Valerie Brown, an attorney with Trustees for Alaska representing Stand For Salmon, disagreed.
“The Superior Court correctly determined that the initiative is not an appropriation,” she said. “Some industry interests pressured the state to appeal because they benefit from a weak permitting system with no public input. The current system treats every activity in salmon streams the same, regardless of potential harm. But, as the Superior Court rightly found, Alaskans have the right to have their voice heard through the initiative process and weigh in on how the state protects our salmon habitat.”
The Alaska Supreme Court must now issue a briefing schedule to advise both sides on when an opening brief is due from the state. Initiative sponsors will then get to respond to the brief, and the state, in turn, would respond to the initiative sponsors’ brief, said Libby Bakalar, an Alaska assistant attorney general. While there is usually a 30-day period between each briefing cycle, the court usually moves more quickly in cases involving an election, she said.
State statutes allow for initiatives to go on the next statewide election ballot after the filing of the petition ad after 120 days of adjournment of the Legislature, and sponsors want their petition filed by Jan. 16, the start of the regular session, Bakalar said.
