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Alaska Supreme Court rules Stand for Salmon initiative can appear on ballot once unconstitutional portions are removed

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.

The provisions that can stay would still make state law involving habitat for anadromous fish — those that swim up rivers to spawn — "significantly more restrictive" if approved by voters, the court said in the 48-page decision.

"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 five-member court said.

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.

Initiative opponents on Wednesday said the language the court permitted, if approved by voters, would still kill projects and jobs. Meantime, supporters said the critical fishing industry and salmon runs will be protected for decades to come.

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 anadromous fish habitat.

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 the 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.

The Alaska attorney general's office said Wednesday the Supreme Court agreed with the state that the measure effectively would have allocated the use of waters for fish while excluding other uses, such as mining.

The Alaska constitution does not allow state resources to be appropriated by initiative, the statement said. That power lies solely with the Legislature.

"The Alaska Supreme Court today confirmed our understanding of the initiative power and its limitations," said Attorney General Jahna Lindemuth. "That limitation extends to the legislature's power to allocate the state's resources — including fisheries and waters — among competing uses."

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 group said it still opposes the remainder of the measure that can head to the ballot.

"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.

Even with the problematic measures removed, the Supreme Court's decision said the measure still contains a "number of substantive provisions."

The remaining language would make the state's laws for protecting anadromous fish habitat "significantly more restrictive by enacting a comprehensive regulatory framework and permitting scheme," the court said.

The court listed several remaining provisions, including those that propose to:

• Set various habitat-protection standards;

• Require developers of major projects to file a performance bond to ensure compliance with permit terms and mitigation requirements;

• Set procedures for interested parties to seek rehearing of permitting decisions;

• Authorize the Fish and Game commissioner to impose, after a notice and hearing, a civil penalty up to $10,000 on people who violate the regulatory scheme.

Sen. Cathy Giessel, R-Anchorage, said what remains of the initiative could devastate the economy, according to a statement from the Alaska Senate Majority.

"The Supreme Court today is sending Alaska voters an initiative with muddled language and clear hazards," Giessel said. "Make no mistake: if this initiative passes, virtually every job-creating project in Alaska for the next decade is in danger. Those of us who care about Alaska's families supported by Alaska jobs created by Alaska projects are deeply concerned."

Sen. John Coghill, R-Fairbanks, said it's "disappointing" the court allowed many provisions to go forward. The court's decision said some of those provisions are not "facially unconstitutional," but could still be subject to certain constitutional challenges in the future, he said.

"If the initiative passes, the concern is that salmon still has an elevated priority over other constitutional competing uses," Coghill said.

The decision included a partially dissenting opinion from one member. Justice Daniel Winfree said his colleagues should have stricken more language. Remaining habitat-protection standards and mitigation requirements would effectively remove the Legislature's authority to allocate anadromous fish habitat, preventing "ADFG from permitting any activity that would completely destroy that habitat," Winfree wrote.

A Stand for Salmon representative said the remaining language proposes a dramatic improvement in state management of rivers, lakes and critical lands. It would better protect salmon fishing that supports 30,000 Alaskan jobs and generates $2 billion in economic activity annually, the group said.

"We are disappointed that the Supreme Court removed some of the protective standards in the initiative," said Ryan Schryver, director of Stand for Salmon. "But this update will be a huge improvement over current law."

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