Alaska Supreme Court alters Ballot Measure 1 language, but protects Alaskans’ voice in stronger salmon habitat protections
By MARY KAUFFMAN
August 08, 2018
The court asked that two lines be severed from the original ballot measure, to make it completely consistent with the Alaska Constitution. The severed lines remove Alaska Department of Fish and Game’s ability to reject a permit if a development would “substantially damage” salmon habitat or if the project requires certain practices that will leave habitat permanently damaged. The court left intact the remaining provisions of the measure. Those include science-based habitat protection standards to guide responsible development in salmon habitat and public involvement in permitting processes in salmon habitat.
Quoting a news release from the Alaska Department of Law, the Alaska Supreme Court ruled today that Ballot Measure 1 - also known as the Stand for Salmon initiative - is unconstitutional because it makes an unconstitutional appropriation of state resources.
“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.”
According to Lindemuth, in this case, Ballot Measure 1 would have prohibited development of any project that would substantially damage anadromous waters (i.e., waters that support migrating fish such as salmon) and presumed that all waters are anadromous unless proven otherwise. The Alaska Supreme Court agreed with the State that this effectively allocated use of the waters for fish to the exclusion of other uses, such as mining. The Court has instructed that the offending provisions need to be removed.
As directed in the opinion, the Alaska Division of Elections will strike the parts of the initiative that the Alaska Supreme Court has identified as an unconstitutional exercise of the initiative power and will revise the summary for the ballot to reflect the amendments.In a news release approved by Stand for Alaska chair Marleanna Hall, co-chairs Aaron Schutt, Jaeleen Kookesh, Joey Merrick, and Sarah Lefebvre, the group said today’s Court decision to remove sections of Ballot Measure 1 validates just how flawed and poorly crafted the measure is.
Quoting Stand for Alaska's news release, 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. Stand for Alaska remains strongly opposed to the misguided measure that threatens our jobs, communities and way of life.
Stand for Alaska assembled a broad and diverse coalition of more than 400 Alaska businesses and organizations under the Stand for Alaska banner, including major resource industries, Alaska Native corporations, organized labor, the construction industry and countless small businesses from across Alaska. The top contributors to Stand for Alaska are Donlin Gold LLC, Anchorage, Alaska, ConocoPhillips Alaska, Anchorage, Alaska, and BP Alaska, Anchorage, Alaska.
Stand for Alaska said they remain confident that Alaska voters will make the right decision for Alaska's future by voting No on November 6.
Another diverse group of Alaska-based individuals, businesses and organizations known as Yes for Salmon said in a news release important salmon protections have been lost with the removal of Alaska Department of Fish and Game’s ability to reject a permit if a development would “substantially damage” salmon habitat or if the project requires certain practices that will leave habitat permanently damaged.
The Supreme Court rejected the state’s argument that the initiative was wholly unconstitutional and agreed that Alaskans should have a right to vote on the issue.
Yes for Salmon said the initiative will update an ineffective, outdated state law governing development in salmon habitat. Yes for Salmon says if passed this fall, the initiative will better protect salmon and promote responsible development in a state where the salmon fishing drives 30,000 Alaskan fishing jobs and generates $2 billion in economic activity annually.
"Today's court ruling affirms what over 40,000 Alaskans have asked for - the right to vote on this timely ballot initiative,” said Stephanie Quinn-Davidson, Measure 1 ballot sponsor, executive director of the Yukon River Inter-Tribal Fish Commission and a former biologist at the Alaska Department of Fish and Game. “Despite removing some of the stronger provisions in the measure, this update to our habitat law is a tremendous improvement over our current vague, ineffective law. Alaskans are ready to take matters into their own hands and vote yes to protect salmon for future generations."
“We are disappointed that the Supreme Court removed some of the protective standards in the initiative,” said Ryan Schryver, director of Stand for Salmon, which advocates for an update to salmon habitat law. “But this update will be a huge improvement over current law. And after such a long and thorough legal review, we are thrilled to put this initiative before Alaskan voters in November and give them a voice on an issue that is fundamental to their identities, their livelihoods and their culture.”
Yes for Salmon said the law to be modernized by Measure 1 has grown ineffective and outdated since it was first passed at statehood almost 60 years ago. The intent of the law was to ensure sustainable salmon fisheries for future generations. Today, as foreign mining companies are ramping up operations in the state and salmon runs are declining, tens of thousands of residents statewide are seeking a solution to protect the habitat that not only plays a central role in their lives as Alaskans, but sustains one of the last thriving wild salmon runs in the world.
“Alaska Natives have been gifted salmon from our ancestors. The salmon returning to our rivers have sustained our people for thousands of years. It’s our job now to have our voices heard and protect our salmon for the future generations like our elders taught us,” said Gayla Hoseth, Second Chief of the Curyung Tribal Council and Measure 1 ballot sponsor.
"The Supreme Court today is sending Alaska voters an initiative with muddled language and clear hazards." Senator Cathy Giessel (R-East Anchorage and Hillside) 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."
“This decision is mixed. If the initiative passes, the concern is that salmon still has an elevated priority over other constitutional competing uses,” said Senator John Coghill (R-Fairbanks).
“While the Court confirmed that the Alaska Constitution prohibits the use of an initiative to usurp or encroach on the Legislature’s sole authority to allocate state resources, many of the initiative provisions were preserved. That’s disappointing, especially since the Court also recognized that while some provisions of the initiative were not facially unconstitutional, there may be future cases in which they are subject to successful ‘as-applied’ constitutional challenges,” continued Senator Coghill.
The initiative was certified for a 2018 ballot in March with nearly 42,000 signatures verified from all 40 legislative districts, the first time in at least 15 years that a ballot initiative has surpassed the minimum signatures required in every district. Yes for Salmon said if passed, the initiative will establish modern, science-based safety standards and common-sense accountability for large development projects. It takes special measures to protect community development projects, while protecting our state’s thriving salmon economy and way-of-life for generations to come.
Measure 1 now heads to the voters having been thoroughly reviewed for over a year by the most respected legal minds in the state, including the Alaska Department of Law, state Superior Court and the Alaska Supreme Court.
Measure 1 will now appear on the general election ballot on November 6, 2018.
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