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Alaska Supreme Court weighs possibility of altering Yes for Salmon initiative before vote

Attorneys for the state and a ballot group faced off before the Alaska Supreme Court on Thursday over whether the Yes for Salmon initiative is unconstitutional, and whether it should appear on the statewide ballot this November.

In a courtroom bustling with conservationists and trade groups, the state argued that the measure would allow an unconstitutional appropriation of a state asset — water and land needed to protect salmon — putting at risk some development projects.

The initiative would allow an impermissible "appropriation because it eliminates the authority of the Legislature to allocate this habitat to certain uses," said Joanne Grace, a chief assistant attorney general for Alaska.

Valerie Brown, attorney for Yes for Salmon, argued the measure is  constitutional and the court should keep in mind the broad rights of the 42,000 Alaskans statewide who signed the petition putting the measure on the ballot.

"We hope you will affirm the Superior Court and let this process of direct democracy proceed to the ballot," she said.

The measure is currently set to appear on the state's 2018 general election ballot, after the initiative was upheld by Superior Court Judge Mark Rindner in October and enough qualified signatures were gathered.

Lt. Gov. Byron Mallott had originally rejected the measure, and the state appealed Rindner's decision.

Mike Wood of the Susitna River Coalition helped launch the Yes for Salmon initiative to increase protections for salmon habitat threatened by development. Wood drove from his home near Talkeetna on Thursday, April, 26, 2018, to hear oral arguments on the measure’s constitutionality, as attorneys for the state and ballot group squared off in the Alaska Supreme Court. (Alex DeMarban / ADN)

The initiative was spearheaded by a trio that includes Mike Wood of the Susitna River Coalition, who sat in the audience Thursday after driving from his home near Talkeetna for the oral arguments.

The effort has sparked opposition that includes Stand for Alaska, consisting of trade groups, Alaska Native corporations, and others who have argued it will stop major roads, pipelines and dams from being built.

Chief Justice Craig Stowers on Thursday focused much of his questioning on whether the court could remove some items from the measure, while still allowing the vote to go forward.

The problem with that, replied Grace, is that removing the items the state considers unconstitutional — items limiting the Legislature's discretion to allocate fish habitat — would destroy the spirit of the measure. With key parts stricken, it would not meet the test allowing it to be on the ballot.

"To make it constitutional, the court would essentially have to cut the heart out and soul out of this (measure)," she said.

Stowers said it's up to the court to determine which parts of the initiative might need removing.

Brown argued that the measure does not need to be changed at all.

She said if the court decides to strike anything, it could remove the parts allowing Alaska Department of Fish and Game to refuse to permit a project that would cause "substantial damage" to fish habitat that could not be restored in a reasonable time.

If voters approved the measure without those provisions, the current regulatory process for development projects would still be greatly improved, said Brown.

The initiative would still be able to create a new regulatory regime with a strong public process, plus new enforcement mechanisms and expanded permitting authority for the agency involving fish habitat, she said after the hearing.

"All those could still go forward and they're still meaningful reforms for habitat permitting," she said.

Wood said some items in the measure could be removed without affecting its spirit. He said voters are anxious to weigh in on the initiative.

"This is about Alaska in 100 years and making sure there's still fish and wildlife here and it's not totally like what we're seeing in the rest of the planet," Wood said. "That's our hope."

Grace said the ballot printing deadline is Sept. 5, so the state would like to know any modifications the court might make before that date.

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