Mining News: Alaska appealing SfS initiative

Alaska Department of Law Oct. 20 filed an appeal to the Alaska Supreme Court in Stand for Salmon v. Mallott, a lawsuit over the constitutionality of proposed ballot initiative 17FSH2, also known as the Stand for Salmon initiative. In September, Lieutenant Governor Byron Mallott declined to certify 17FSH2 because it made an unconstitutional appropriation of a state asset- anadromous fish and wildlife habitat- by initiative. The lieutenant governor’s decision was based on an Alaska Department of Law opinion that the law changes proposed in the ballot measure would unconstitutionally prohibit the development of mines, dams, roadways and pipelines. “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,” state attorneys wrote. Article XI, section 7 of the Alaska Constitution prohibits the making or repealing of appropriations by ballot initiative. The sponsors of 17FSH2 sued to overturn Mallott’s decision and obtain petition booklets for circulation throughout the state. Earlier this month, Anchorage Superior Court Judge Mark Rindner reversed Mallott’s decision, ruling that 17FSH2 was a constitutional use of the initiative process. The Department of Law contends that 17FSH2 unconstitutionally infringes on the Legislature’s discretion to decide how to allocate state assets among competing uses, thereby making it an impermissible appropriation by initiative. “The question of whether a proposed ballot initiative makes an appropriation is an important constitutional question that should be answered by The Alaska Supreme Court,” said Attorney General Jahna Lindemuth. “We take no position on whether 17FSH2 is good policy. This is about the superior court’s legal conclusion and our duty to defend the Alaska Constitution, and we believe the superior court got it wrong. The Alaska Supreme Court’s case law on initiatives prohibits the type of resource allocations that 17FSH2, by its terms, makes a foregone conclusion. The Legislature- and only the Legislature- can decide how to allocate this public asset among industry, fisheries, and other competing interests and uses.” Upon Judge Rindner’s ruling, petition booklets for 17FSH2 were printed and delivered to sponsors. The state said it will request expedited consideration by the Alaska Supreme Court in order to provide clarity before ballots have to be printed for next year’s elections.

–SHANE LASLEY