Alaska Supreme Court axes key provisions of salmon initiative, but clear it for the ballot

(Photo by Alaska Region U.S. Fish & Wildlife Service/Flickr)

The Stand for Salmon initiative is headed for the general election ballot, but will be doing so without key provisions the Alaska Supreme Court says would place unconstitutional limits on how Alaska’s waters and rivers are used.

The Alaska Supreme Court struck down two key provisions of the initiative, known in the state election system as 17FSH2, that would have explicitly prevented the state from permitting any project that could “cause substantial damage” to fish habitats. The 4-1 ruling was released today. Judge Daniel Winfree issued a dissenting opinion on the case.

The status of the initiative has gone back and forth this year as the state and the initiative sponsors battled over whether those provisions violated constitutional prohibition against initiatives that allocate state resources or spend state money.

The state, backed by mining and oil and gas companies, argued that it did, while sponsors of the initiative argued that the initiative’s language gave enough flexibility to allow the Legislature and commissioner to make decisions about the allocation of resources.

The majority of the Alaska Supreme Court sided with the state.

“With our prior case law in mind, it is clear that 17FSH2 narrows the legislature’s range of discretion to make decisions regarding how to allocate Alaska’s lakes, streams, and rivers among competing needs,” the court wrote. “Under both the current law and the permitting scheme created by 17FSH2, the ADFG commissioner is charged with managing the responsible use of waterways and fish habitat. But 17FSH2 contains two provisions that explicitly restrict the commissioner’s discretion to make allocation decisions.”

The court ultimately ruled that initiative could go to the ballot if both provisions were cut out.

Here’s both of those provisions highlighted that the court has ordered be removed:

Both provisions were what drew much of the opposition from the resource development industry, which feared that the strict language would kill many projects without any recourse. Ballot initiatives are protected from repeal or significant changes by the Legislature for two years. The industry has already spent massively to oppose the initiative, with contributions from mining and oil companies surpassing $8.5 million over the last two years.

While supporters argued that the initiative gave the state flexibility in defining the specific terms, the Supreme Court disagreed, finding damage or displacement of fish habitat is unavoidable in some cases and therefore certain projects would be impossible to permit under the initiative.

“But where a project like a mine or 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,” wrote the court. “If the habitat has been permanently displaced, it cannot be ‘likely’ for that habitat to be restored within a ‘reasonable period,’ because it never will be restored.”

Therefore, the court ruled, those provisions of the initiative amounted to an unconstitutional allocation of state resources because it would take the decision-making power out of the hands of the Legislature.

Not far enough

Justice Winfree’s dissenting opinion agrees with the findings of the court, but argues there were other portions of the remaining initiative that should have also been removed. Though they didn’t as explicitly tie the hands of the state, he argued, they practically did so.

“I agree in full with this analysis,” he wrote. “Where the court and I diverge is with other 17FSH2 provisions that, while not explicitly prohibiting the legislature from allocating anadromous fish habitat, would have the same practical effect.”

While the majority of the court found that some of the offending provisions–which focus on habitat protection standards and mitigation requirements–were excusable because they were left up to interpretation, Winfree argues “How?”

“Actually interpreting those provisions, I see no reasonable interpretation of the initiative’s habitat protection standards and mitigation requirements that would not effect an appropriation,” he wrote.

Winfree takes specific issue with the remaining initiatives requirement that fish habitat be maintained on a long list of different factors. Winfree argues that it’s essentially impossible to both develop projects and protect the fish habitat to the extent required by the initiative.

“Destruction and preservation are mutually exclusive in this context; how can the commissioner permit a project that would destroy anadromous fish habitat and still ‘preserve’ that habitat according to the habitat protection standards?” he wrote. “The court’s answer is that the commissioner does not actually have to preserve the permitted habitat. Under the court’s view, the commissioner satisfies proposed AS 16.05.867(b) by maintaining ‘the listed aspects of anadromous fish habitat in Alaska as a whole.’ This interpretation stretches the habitat protection standards’ language past the breaking point. Proposed AS16.05.867(b) explicitly tethers the habitat protection standards to permitting decisions; what relevance does ‘water quality and water temperature’ in Ketchikan have to a permitting decision in Bristol Bay?”

Full Alaska Supreme Court slip opinion for Mallott v. Stand for Salmon:

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