Alaska Supreme Court weighs legality of Yes for Salmon ballot initiative

Valerie Brown of Trustees for Alaska delivers arguments before the Alaska Supreme Court on the Yes for Salmon ballot initiative. (Photo by Elizabeth Harball/Alaska’s Energy Desk)

The Alaska Supreme Court yesterday heard arguments in a case that will decide the fate of the closely watched Yes for Salmon ballot initiative.

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Representatives from both sides of the controversy filled the courtroom to listen in, including staff from the Alaska Oil and Gas Association and the Resource Development Council, and environmental groups like the Wild Salmon Center. One of the ballot initiative’s sponsors, Michael Wood of Talkeetna, was also there.

Yes for Salmon’s backers want Alaska to toughen the permitting process for mines, dams and other projects in salmon habitat. But during yesterday’s oral arguments, the state argued it goes against the state constitution because it forces the legislature to prioritize salmon habitat — technically referred to in the initiative as “anadromous fish habitat” — over other uses.

“Many large projects in Alaska, including natural resource development projects, cannot be built without permanently displacing some amount of anadromous habitat as it is very broadly defined in this bill,” assistant attorney general Joanne Grace argued. “The second critical element is the plain language of the bill, which gives Fish and Game no discretion to grant a permit or an activity that will permanently displace the habitat for that category of activities.”

Yes for Salmon’s lawyer, Valerie Brown of Trustees for Alaska, acknowledged the initiative would lead to some permits being denied.

But, Brown argued “that is not the test that this court applies. If the permitting scheme could lead to a denial after the exercise of legislative discretion, that’s permissible.”

Brown added, “I think what the initiative does is it forces maybe re-siting or technology for projects that will cause adverse impacts.”

The Justices appeared to grapple with the complexity of the initiative, asking lawyers on both sides to clarify how it would actually work if enacted. Pointing to specific technical language in the initiative, Justice Daniel Winfree asked the Brown how it doesn’t block projects altogether.

“One more time, for an old man who is slow, explain to me again why the language about ‘notwithstanding B, that the permit may not be granted for an activity that will — and then one through six — tell me why that is not pretty concrete, that a permit will not be granted?” Winfree said.

The Justices also asked multiple questions about whether the Supreme Court could cut out some parts of the initiative, while allowing the rest to end up on the ballot. The Justices said that’s a possible outcome — but under the state constitution, they indicated it’s allowed only if the Supreme Court doesn’t alter why Alaskans provided signatures for the initiative to go forward.

“We have this principle that when reviewing initiatives, we’re supposed to construe them so as to preserve them whenever possible. And presumably that means something, and it’s not just something pretty that we put into the opinions,” Chief Justice Craig Stowers said.

The state was against the idea of removing some parts of the initiative but allowing the rest to go on the ballot.

“To make it constitutional, the court would essentially have to cut the heart and soul out of this bill,” Grace argued.

Brown disagreed.

“What the state has repeatedly called its main problem with this initiative — that section is easily severable,” Brown said.

The state is asking the Supreme Court to make a decision by early September. If the Court decides in Yes for Salmon’s favor — or if the Court decides it will simply strike out sections of the initiative — it will be on the ballot this November.

Elizabeth Harball is a reporter with Alaska's Energy Desk, covering Alaska’s oil and gas industry and environmental policy. She is a contributor to the Energy Desk’s Midnight Oil podcast series. Before moving to Alaska in 2016, Harball worked at E&E News in Washington, D.C., where she covered federal and state climate change policy. Originally from Kalispell, Montana, Harball is a graduate of Columbia University Graduate School of Journalism.

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