Lt. Gov. Byron Mallott denied an application on Sept. 12 to put a voter initiative on the 2018 statewide ballot that would have tightened the state’s permitting requirements for development projects with the potential to impact salmon streams.
Assistant Attorney General Elizabeth Bakalar wrote a Sept. 6 letter to Mallott recommending he not certify the initiative because it would strip the Legislature of its power to allocate resources — in this case salmon habitat — and thus violate the Alaska Constitution.
The lieutenant governor’s primary responsibility in Alaska is to manage state elections.
The “salmon habitat initiative” pushed by the nonprofit Stand for Salmon, which is chaired by Cook Inlet commercial fisherman Mike Wood, met all but one of the four criteria the Department of Law uses to evaluate ballot initiatives, according to Bakalar.
She noted that the Alaska Supreme Court has generally ruled broadly to allow citizen initiatives unless there is no debate the proposal in question is unconstitutional.
“An initiative is unobjectionable as long as it grants the Legislature sufficient discretion in executing the initiative’s purpose. But an initiative that controls the use of public assets such that it essentially usurps the Legislature’s resource allocation role runs afoul of Article XI, Section 7 (of the Alaska Constitution),” Bakalar wrote.
“17FSH2 (its technical title) clearly limits the Legislature’s ability to decide how to allocate anadromous streams among competing uses. The initiative contains restrictions and directives that would require the commissioner to reject permits for resource development or public projects in favor of fish habitat.”
Specifically, it would have overhauled Title 16, the state’s permitting law for salmon streams, by establishing two tiers of development permits that could be issued by the Department of Fish and Game commissioner.
“Minor” habitat permits could be issued quickly and generally for projects deemed to have an insignificant impact on salmon waters.
“Major” permits for larger projects such as mines, dams and anything determined to potentially have a significant impact on salmon-bearing waters would require the project sponsor to prove the project would not damage salmon habitat.
Additionally, the project sponsor would have to prove that impacted waters are not salmon habitat during any stage of the fish’s life cycle if the waters are connected to proven salmon habitat in any way but not yet listed in the state’s Anadromous Waters Catalog.
Currently, Title 16 directs the Fish and Game commissioner to issue a development permit as long as a project provides “proper protection of fish and game.”
The initiative sponsors contend that is far too vague and an update is needed just to define what “proper protection” means.
The Department of Law deemed an earlier iteration of the initiative as a means to allocate resources and prohibit projects such as the Pebble and Chuitna mines and Susitna-Watana dam, which the initiative sponsors have opposed.
Stand for Salmon wrote in a formal statement that Gov. Bill Walker’s administration has chosen to “play politics” and defer to the short-term gains of Outside mining companies instead of supporting the fish Alaskans depend on.
“The decision to deny us our constitutional right as Alaskans to gather signatures and put this issue before voters is stunning, particularly from a governor who once promised to support fish first policies,” the group wrote. “Instead, Governor Walker and Lt. Governor Mallott have done next to nothing to uphold their promises to Alaskans who depend on salmon for jobs, culture, recreation and way of life.
“The merits of our application should have been based purely on the law. Yet, the relentless lobbying and pressuring from corporate representatives and lawyers seemed to carry more weight than the integrity of the public process.”
Opponents to the initiative have said Title 16 is working as it is and the proof is that Alaska has not had an environmental disaster related to projects under the law’s jurisdiction.
Wood, one of the sponsors, said in a previous interview with the Journal that the state has simply been “lucky” that it has avoided such a disaster, noting most of the large mines and other projects in Alaska are well away from salmon rivers.
Bakalar wrote in a June 30 letter to the sponsors that a previous version of the initiative would have also allocated resources without the Legislature’s consent. The initiative was then reworded in an attempt pass legal muster, but the revisions apparently didn’t go far enough.
“Despite the altered language, we remain concerned that 17FSH2 would, theoretically and/or in practice, categorically prohibit certain mines, dams, roadways, gaslines, and/or pipelines,” Bakalar wrote Sept. 6. “In doing so, the measure would effectively set state waters aside for the specific purpose of protecting anadromous fish and wildlife habitat ‘in such a manner that is executable, mandatory, and reasonably definite with no further legislative action,’ while leaving insufficient discretion to the Legislature or its delegated executives to use that resource in another way.”
She also noted the letter should not be viewed as an opinion to whether the initiative is good public policy or not, but is simply a legal opinion on its constitutionality.
To that end, the public policy could still be changed via House Bill 199, sponsored by Rep. Louise Stutes, R-Kodiak. The bill largely mirrors the language of the initiative and if passed, would be the Legislature deciding to allocate and prioritize water resources for salmon.
Board of Fisheries Chair John Jensen also wrote in a Jan. 19 letter to House and Senate leaders that there is nothing in current state laws or regulations defining what is a proper protection.
The Kenai Peninsula Borough Assembly also unanimously passed a resolution about a year ago supporting an update to Title 16 to further protect fish habitat.
Wood said HB 199 would be the ideal vehicle for changing Title 16, as it could be amended to include input from development proponents and thus be more agreeable to more Alaskans, but added that the initiative was the group’s way of showing how serious it is about getting the law changed.
The sponsors have 30 days to appeal Mallott’s ruling and Stand for Salmon said it is currently evaluating its next move.
Elwood Brehmer can be reached at firstname.lastname@example.org.