The Legislature's top attorney said Monday that he thinks lawmakers would have "a lot of latitude" in crafting any coastal management program.
But Doug Gardner said the big question would be whether the means for accomplishing the program's goal are different than those set out by a proposed ballot initiative.
The proposed initiative aims to revive Alaska's coastal program. The opt-in program, which lets states put conditions on certain activities on federal lands and waters, lapsed last year after lawmakers made several failed attempts to save it.
Legislators can pre-empt the initiative if it qualifies for the ballot -- as it appears on track to do -- by passing substantially similar legislation. Lawmakers have been trying to get a handle on what, exactly, substantially similar means.
Gardner, in testimony before the House and Senate judiciary committees, cited Alaska court decisions in saying the more complex an issue, the more latitude has been given to lawmakers. He said he believed the court would consider this a complex issue. But he said the most hotly contested aspect could be whether the means to the end -- the end being a program -- are different.
During last year's legislative debate, one of the biggest challenges was in finding the balance between letting local communities have a say in development decisions that could affect their way of life, particularly with the future potential for offshore oil and gas drilling, and not obstructing development the state deemed to be in its interest.
The program prescribed by the proposed ballot initiative calls for a coastal policy board that provides local input in evaluating the effectiveness of district coastal management plans. The board would approve initial or amended district plans if, among other things, the plans address a coastal use or resource of concern as demonstrated by local knowledge or supported by scientific evidence. Questions about what role local knowledge and scientific evidence should play were major sticking points during last year's debate.
A memo from a legislative lawyer, Alpheus Bullard, said the program set out by the proposed initiative would provide for greater local participation and control than the prior program did.
While he said it's hard to say how the lieutenant governor or a court might rule on the issue of substantial similarity, he said drafting a bill that provides greater local control and participation than the former program did or HB106 would have could only help the effort of having it deemed substantially similar. Bullard was responding to whether a bill similar to HB106, which passed the House last year, would be substantially similar.
Monday's hearing was the first of its kind under a 2010 state law regarding greater disclosure and information surrounding proposed initiatives. Testimony was by invitation only; it wasn't intended to give a pros-and-cons look at the proposal.
Rep. Lance Pruitt, R-Anchorage, and Sen. John Coghill, R-North Pole, expressed discomfort with Bruce Botelho, a leader of the ballot group, the Alaska Sea Party, testifying. But Sen. Hollis French, D-Anchorage, said he and Rep. Carl Gatto, in planning the hearing, decided it best to have the initiative sponsor there. The state has estimated that the program would cost about $5.4 million a year. But Botelho testified that he considered the costs, including those tied to the board and coming during the first years of the program, to be overstated.
Botelho told reporters the Alaska Sea Party isn't holding itself out as the arbiter of what's substantially similar. He said that would be up to the Legislature, the lieutenant governor and, perhaps, the courts.
He said the debate should be on what a good, viable coastal management program should like and he hopes the Legislature engages on that point.