Lt. Gov. Mallott rejects salmon habitat initiative as unconstitutional

A proposed initiative that would toughen up the state’s permitting process for resource development near fish habitats has been rejected by Lt. Gov. Byron Mallott for violating the rules for initiatives.

The state’s concern with the initiative is essentially dedicating resources by placing tough restrictions on any development that could cause “substantial damage” to salmon habitat. Under the Alaska Constitution initiatives cannot be used to dedicate revenues or spend money (or create and change courts).

The sponsors had been warned the initiative could violate the constitution after filing an initial version earlier this year. The group withdrew the initiative, made some changes and resubmitted it in July.

The official backers are Cook Inlet commercial setnet fisherman Mike Wood along with Brian Kraft and Gayla Hoseth. The group has received legal advice from the law firm Trustees for Alaska.

The changes weren’t enough according to two legal opinions by the Department of Law.

“In short, like 17FSHB, 17FSH2 would prohibit the use of anadromous waters for certain development purposes, leaving insufficient discretion to the legislature to determine how to allocate those state assets. We express no opinion whether 17FSH2 is good or bad policy. We simply find it to be inconsistent with what the people, by initiative, may do under the Alaska Constitution.”

The legal opinion also notes the initiative falls short of the 2008 fish habitat initiative, which survived a legal challenge that reached the Alaska Supreme Court before failing in the primary election that year. The 2008 initiative was cleared because it “allowed the legislature to determine the amounts of specific toxic pollutants that may or may not be discharged at a mining site.”

The initiative sponsors have 30 days to appeal Mallott’s ruling to the courts.

Wood told the ADN that the decision was “completely political” and said he wants to appeal the decision.