Alaska Supreme Court judges have reversed a Superior Court decision on the Stand for Salmon ballot initiative, ordering that two provisions be deleted and sending remainder of the initiative to a vote on Nov. 6.
The court concluded that the initiative as written would encroach on the discretion over allocation decisions delegated to the Alaska Department of Fish and Game, but that by removing the problematic sections the initiative could go on the general election ballot.
The court reversed the Superior Court decision and directed the office of Lt. Gov. Byron Mallott to sever those offending provisions and put the remainder of the initiative on the ballot.
Mallott had initially declined to certify the proposed ballot initiative to strengthen requirements for projects with potential for harming anadromous fish habitat on grounds that the initiative violated the state constitution. In October the Alaska Superior Court overruled Mallott and approved putting the initiative on the ballot. Arguments went then to the Alaska Supreme Court, which handed down its decision on Aug. 8.
Alaska Attorney General Jahna Lindemuth said that the high court’s decision “confirmed the state’s understanding of the initiative power and its limitations. That limitation extends to the legislature’s power to allocate the state’s resources- including fisheries and waters – among competing uses,” she said.
In this case, said Lindemuth, “I would have prohibited development of any project that would substantially damage anadromous waters (i.e. waters that support migrating fish such as salmon) and presumed that all waters are anadromous unless proven otherwise. The Alaska Supreme Court agreed with the state that this effectively allocated sue of the waters for fish to the exclusion of other uses, such as mining.”
Trustees for Alaska’s legal director Valerie Brown, applauded the news.
“The court severed two sentences on provisions that prohibit certain permitting decisions,” Brown said. “If Fish and Game determined that a project could cause substantial damage it could have denied a permit. The court severed those two sentences.
“What that means is a decision to deny a permit is not required, but it is within the discretion of Fish and Game to deny a permit. Otherwise the rest of the initiative goes forward. If it passes it will mean we will have public notice and public comment and that the court also preserves the habitat protection standard, so for the first time we have standards that the Department of Fish and Game has to apply when they are making permitting decisions.
“That’s a great outcome,” she said.