An Anchorage judge on Monday overruled Lt. Gov. Byron Mallott and says a ballot group that includes fishing, tribal and environmental interests can move ahead with an initiative intended to protect salmon.
The Stand for Salmon group, led by a trio that includes Mike Wood of the Susitna River Coalition, says it wants to accomplish a long-overdue rewrite of Alaska's fish habitat law through the ballot measure.
The matter ended up in court after Mallott rejected the proposed ballot initiative. The lieutenant governor, state lawyers and a pro-mining group said the measure would effectively appropriate a valuable public resource — water. The Alaska Constitution says appropriation cannot be done by initiative, and has found that both water and fish are public assets.
In his 22-page ruling, Superior Court Judge Mark Rindner disagreed with the lieutenant governor. Siding with the salmon group, he referred to an earlier Supreme Court ruling that found the ban on appropriating public assets by initiative "does not extend to prohibit initiatives that regulate public assets."
The state is evaluating whether to appeal. That process will take weeks, said Elizabeth Bakalar, an assistant attorney general.
The ruling means the state must print booklets by Oct. 17 for initiative backers to gather signatures, she said. If the decision stands and backers get the required number of signatures — about 32,000 — the proposed new law will go before voters in 2018.
Concern about appropriations "does not change the general rule that courts must 'preserve the people's right to be heard through the initiative process whenever possible,' " Rindner wrote, quoting an earlier case involving Pebble mine.
The proposal would create a new multi-tiered system of permits for projects in fish habitat. The smallest projects wouldn't need a permit. But ones that would have "significant adverse effects" would require new levels of government review. Those determined to damage fish habitat beyond repair wouldn't be allowed.
The initiative provides a framework that the Legislature would have to fill in, including defining "substantial damage" to fish habitat, backers said.
Would the measure prevent a big project like the proposed Pebble mine, at the salmon-producing headwaters of Bristol Bay? What about Donlin Gold mine, just up from the Kuskokwim River, the source of salmon that feeds thousands of rural residents?
That's where the two sides disagreed.
The state argued that "the measure on its face would preclude those kind of projects from being built because they would necessarily substantially damage anadromous fish habitat," Bakalar said of the impact on Pebble, using a scientific term for migratory fish.
"The bill places a finger on the conservation side of the scale," the state said in a court filing. Development that substantially damaged even a single salmon stream would be barred.
Initiative backers see their proposal differently.
"This won't stop anything, but this will definitely weed out some bad ideas," said Wood, a commercial setnet fisherman and carpenter.
The proposal sets a high bar for projects that impact salmon and other migratory fish, but doesn't forbid them, he said.
"I'm not some wild greenie trying to stop development," Wood said.
He is part of the anti-Susitna dam coalition as well as a leader of Stand for Salmon. The other leaders are Brian Kraft, owner of Alaska Sportman's Lodge, and Gayla Hoseth, second chief of the Dillingham tribe, Curyung Tribal Council.
Cook Inletkeeper, an advocacy and science organization, and United Tribes of Bristol Bay, which has fought the Pebble mine for years, also back the effort, Wood said.
Aligned with the state in fighting the initiative is the Council of Alaska Producers, a mining trade group. The council said it would steer water away from one interest, mining, to protect it for salmon, and that amounts to an appropriation. Existing state appropriations also would be repealed, since the state's 60-year-old fish habitat law would be replaced by a new system, the council argued.
Rindner seemed stunned by the council's theory.
The council "has not provided, and likely cannot provide, any legal authority for this incredible proposition," the order said. If the council's argument was correct, no ballot initiative could be approved in Alaska because they all seek to enact new law, he wrote.
Key questions must be addressed by the Legislature to determine the impact of the ballot measure, Rindner wrote.
What risk to fish is acceptable? What is a reasonable time to restore fish habitat? What is "substantial damage?"
Big projects will only be able to move forward if they don't wreck fish habitat, said Wood, who lives off the road system north of Talkeetna.
"What we are trying to do shouldn't impact ordinary Alaskans, their ATV use, their ability to go hunt, my ability to go home," he said.