The initiative to toughen regulations on development near fish habitats has new life this week after an Anchorage Superior Court judge said it passes constitutional muster.
The initiative was rejected by Lt. Gov. Byron Mallott, who oversees and reviews the constitutionality of petitions, last month. Based on advice from the Department of Law, Mallott found the petition was unconstitutional because it effectively allocated a state resource—water and fish habitats—in violation of the constitutional rules that prevent initiatives from allocating or spending resources. Mallott was supported by the Council of Alaska Producers.
Fishing and environmental groups under the banner of Stand for Salmon appealed the matter to the Superior Court Judge Mark Rindner, arguing the state got it wrong.
The initiative would create a new permitting process for any projects that “may use, divert, obstruct, pollute, disturb or otherwise alter” fish habitat. The seriousness of required permit and required mitigation efforts depend on the potential impacts that development may have.
The dispute, as Rindner summarizes in his written opinion, is whether the initiative is a constitutional regulation on resources, as Stand for Salmon argues, or an unconstitutional allocation, as the state argues.
He ultimately sided with Stand for Salmon, deconstructing the arguments put forward by the state and the Council of Alaska Producers (CAP).
One of the chief arguments of the state is the initiative effectively boxes the Legislature out of any decisions on resource development near fish habitat. Though the initiative, officially known as 17FSH2, includes room for the Legislature to set rules to implement the initiative, the state argues the Legislature is unlikely to do so. And because the Legislature is unlikely to do so, the state argues that the initiative only has the appearance of say in the process.
The judge found the argument unconvincing.
“As an initial matter, no party has presented any competent evidence about what the effects of 17FSH2 will be, if it even passes,” Rindner wrote. “In short, tit is enough that the Legislature retains enough discretion such that it could implement 17FSH2 in a manner allowing industrial activity.”
CAP aargued the initiative unconstitutionally favors certain activities over mining and other resource production. Rindner, referring to the 2008 initiative on Pebble Mine, said the new initiative doesn’t favor uses, but instead is focused on protecting the quality of a state resource.
“17FSH2 does not explicitly favor any particular use of anadromous fish habitat between fishing, kayaking, commercial fishing, hatcheries, mining, pipeline or dams; it only concerns itself with the condition of the water.”
CAP also argued that the initiative should be ruled unconstitutional because it effectively would repeal existing state laws and regulations, an argument that Rindner found laughable.
“The proposition that any ballot initiative which would replace an existing statute is an unconstitutional repeal of an appropriation must be false if the constitutional right to enact laws through initiatives is to mean anything,” he wrote. “CAP has not provided, and likely cannot provide, any legal authority for this incredible position.”
Rindner ultimately favors the 17FSH2 because the state and CAP relied heavily on hypothetical arguments. He said the impact of the initiative will ultimately rely on the action—or inaction—of the Legislature.
“Prediction of the impact of the initiative at this time is pure speculation,” he wrote. “The court has no competent evidence regarding the impact of the initiative. Nor does such evidence exist. What the impact of the initiative will be necessary will depend on what the Legislature does in determining what constitutes an adverse effect, what risk of fish population is acceptable, what a reasonable time frame to restore fish habitat is, and therefor on what mitigation measures are required as part of the permitting process. Because the impact of the initiative can only be determined after legislative actions occurs, the court finds, as a matter of law, that the initiative is not an allocation and is thus constitutionally permissible.”
[PDF: Read judge Rindner’s decision on the fish habitat initiative]
The state could appeal the issue to the Alaska Supreme Court, a decision that could take weeks assistant attorney general Elizabeth Bakalar told the Alaska Dispatch News. If the state doesn’t pursue the appeal or the group wins in the Supreme Court, the backers still need to gather 32,000 signatures.
Three other initiatives have been approved in the last two weeks, including two health-care initiatives and a revision to legislative ethics rules.
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