Superior Court Judge Mark Rindner Oct. 10 ruled the controversial Stand for Salmon ballot initiative to be constitutional, overturning a contrary decision by Lt. Gov. Byron Mallott less than a month earlier.
The proposed ballot measure would prioritize the habitat of anadromous fish – for Alaska this is primarily salmon but includes at least 36 fish species that traverse between fresh and salt waters – over other uses.
Mallott said this would be an appropriation of resources that runs afoul with the Alaska Constitution.
The lieutenant governor’s decision was based on an Alaska Department of Law opinion that the law changes proposed in the ballot measure would “categorically prohibit certain mines, dams, roadways, gaslines, and/or 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.
Stand for Salmon, a group led by individuals opposed to the Pebble Mine and Susitna Dam project, said Mallott’s decision to deny its petition to put the measure on the ballot was politically motivated.
“We are deeply disappointed that Governor Walker’s administration has chosen to play politics and cater to the short-term interests of outside, multinational mining companies instead of Alaskans and the salmon we depend on. Thousands of Alaskans support this update,” the group penned in a response to Mallott’s Sept. 12 decision.
Stand for Salmon appealed the case to Alaska Superior Court.
Rindner: no appropriation
In hearing the appeal, Judge Rindner was charged with deciding whether the regulations proposed in Stand for Salmon’s initiative constitutes an appropriation of resources.
Trustees for Alaska attorneys, who represented Stand for Salmon, argued that the initiative does not outright prohibit development of projects around salmon bearing streams and therefore is not an appropriation.
State attorney’s, on the other hand, contend the regulations are so restrictive that mines, pipelines, roads and dams going over through or near salmon bearing waterbodies have little likelihood of being approved.
“There’s no way to build some of these projects without de-watering (fish) habitat,” Alaska Assistant Attorney Elizabeth Bakalar.
In part, the ballot measure defines anadromous habit as “a naturally occurring permanent or intermittent seasonal water body … that contribute, directly or indirectly, to the spawning, rearing, migration, or over-wintering of anadromous fish.” This broad category includes the bed under such a stream, as well as sloughs, backwaters and flood-plains connected to it.
More than 19,000 streams, rivers and lakes in Alaska have previously been catalogued as anadromous fish habitat, a number that would dramatically increase under the proposed Stand for Salmon initiative.
If the proposed measure where to become law, all streams in Alaska would be considered anadromous fish habitat by default.
The only way to exempt a water body from this designation, and the strict permitting standards that come with it, would be for a permit applicant to petition the Alaska Department of Fish and Game to carry out a site-specific review and administrative actions to complete the exemption.
While some water bodies could be excluded from the anadromous fish habitat list, the need for a determination would add extra time to the front end of an already long permitting process for infrastructure, mining and other development projects.
For those water bodies that do not qualify for an exemption, the steep requirements to get an anadromous fish habitat permit under the rules laid out in Stand for Salmon would make it nearly impossible to obtain a permit to develop a mine, road, dam or gas pipeline, according to state attorneys.
Ridner’s decision fell on the Stand for Salmon side of the fine line between impossible and virtually impossible.
"(The proposed initiative) does not explicitly favor any particular use of anadromous fish habitat between recreational fishing, kayaking, commercial fishing, hatcheries, mining, pipeline or dams; it only concerns itself with the condition of the water," Rindner penned in a court opinion.
“The court has no competent evidence regarding the impact of the initiative. Nor does such evidence exist,” he added.
What’s next?
Rindner’s ruling clears the way for Stand for Salmon to begin collecting the some 32,000 signatures needed by the end of the year to get its measure on the 2018 ballot.
Alaska Department of Elections is working diligently to have petition booklets printed for Stand for Salmon by Oct. 18.
In the meantime, state attorney’s are considering contesting Rindner’s ruling to Alaska Supreme Court.
A state win in the higher court would force Stand for Salmon to come up with a new ballot measure that better aligns with the Alaska Constitution or see if similar rules could be passed through the Alaska Legislature.
If the measure proponents win and can collect the signatures required by January, it will be up to Alaskans to decide whether the strict state and federal laws already in place do a good job protecting salmon or added layer of protection that will restrict other economic opportunities is needed.
