From Anchorage Daily News, August 8, 2018
By Alex DeMarban
Alaska’s Supreme Court ruled Wednesday that the Stand for Salmon initiative contains unconstitutional sections that can be removed so voters in November can still decide on the measure designed to enhance protections for salmon and other fish.
“We conclude that the initiative would encroach on the discretion over allocation decisions delegated to the Alaska Department of Fish and Game by the legislature, and that the initiative as written therefore effects an unconstitutional appropriation,” the court said in a 48-page decision.
The lieutenant governor, who oversees Alaska elections, must remove the “offending sections” and place the remainder of the initiative on the ballot, the court said in reversing a Superior Court ruling.
Lt. Gov. Byron Mallott had refused to certify the proposed ballot initiative, and the initiative sponsors sued. The Superior Court in October overruled Mallott and approved the measure for the ballot.
The state argued that the measure was not constitutional, saying it would eliminate the Legislature’s authority to allocate anadromous fish habitat to certain uses, such as for roads, mines or other projects.
Valerie Brown, an attorney for Stand for Salmon, said Wednesday the Supreme Court decision will remove the measure’s most restrictive language. That language would have required the Fish and Game commissioner to prohibit projects that would cause “substantial damage” to the habitat of anadromous fish — those that swim up rivers to spawn.
But Brown said the decision is “great news” because voters can still decide on a measure on Nov. 6 that would create a new regulatory system for managing anadromous fish habitat, including mandating a public process before Fish and Game can issue fish-habitat permits.
“So for the first time ever, Alaskans, if this passes, can participate in (the state-permitting) decisions for projects that would affect salmon habitat,” Brown said.
Stand for Alaska, an industry-backed group opposing the measure but not a party to the lawsuit, said in a statement Wednesday the court’s decision “validates just how flawed and poorly crafted the measure is.”
“The actions taken today by the court are without precedent and should concern voters across the state. Even with today’s changes, this measure still replaces our science-based habitat management system with untested regulations that will result in job loss and kill current and future, vital projects,” the group said.
The initiative, signed by 42,000 eligible Alaskans, was designed to create a new regulatory regime with an enhanced public process, plus new enforcement mechanisms and expanded permitting authority for the Alaska Department Fish and Game.