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2 lawsuits challenge Alaska’s handling of ballot initiatives

  • Author: Nathaniel Herz
  • Updated: September 20, 2017
  • Published September 20, 2017

Alaska Lt. Gov. Byron Mallott, pictured at a news conference in Anchorage in July, is the subject of a new lawsuit challenging his office’s rejection of an citizens initiative to protect salmon habitat. (Bill Roth / Alaska Dispatch News)

A pair of lawsuits filed this week are seeking changes in the way the state manages voter initiatives — one hoping to reverse the rejection of an initiative protecting salmon habitat, the other seeking to invalidate a state law barring nonresidents from gathering petition signatures.

Stand for Salmon, a nonprofit supported by several environmental groups, appealed Alaska Lt. Gov. Byron Mallott's decision rejecting their petition in Alaska Superior Court, where the case is assigned to Judge Mark Rindner. The case was opened Monday.

Mallott is Alaska's chief election official.

Stand for Salmon had filed two separate initiatives with Mallott's office earlier this year, citing the risks to salmon from proposed developments like the Pebble mine in Southwest Alaska, the damming of the Susitna River and the Chuitna coal mine near Cook Inlet.

The initiatives aimed to set up a new review system for proposed projects that would affect fish habitat and would have provided for public comment on such proposals.

State attorneys warned the group the first version of the proposal would violate the Alaska Constitution's ban on initiatives that appropriate state assets, which includes natural resources.

Stand for Salmon then withdrew the proposal and submitted an adjusted version, but Mallott's office still rejected it, with attorneys citing "restrictions and directives" that would force the state to deny permits for resource development in favor of fish habitat.

The initiative, the state's attorneys argued, could have had the effect of "categorically prohibiting" certain types of big projects like dams, mines or pipelines.

Stand for Salmon's attorneys, who work for the environmental law firm Trustees for Alaska, are now asking Rindner to overturn that rejection. They argue that the state's lawyers justified their position by citing the wrong Alaska Supreme Court decision — one that addressed a Kenai Peninsula Borough ordinance to restrict spending on capital projects, rather than one that approved a proposed initiative to regulate pollution and state waters.

The proposed fish-habitat initiative, Stand for Salmon's attorneys argue, doesn't designate assets to one group over another. Instead, they say, it would set up a permitting scheme that allows the Department of Fish and Game, guided by the Legislature, to evaluate and limit potential harm to fish habitat posed by development projects.

Stand for Salmon is also asking for a preliminary ruling to allow the group to start collecting petition signatures by the end of the month, since more than 32,000 would ultimately be needed by January to place the initiative on the 2018 ballot.

Meanwhile, a separate lawsuit filed Tuesday in federal court challenges a state law that requires signature gatherers to be Alaska residents.

Scott Kohlhaas, who runs a signature-gathering business, filed the suit along with Darryl Bonner, who lives Outside and says in court documents he plans to come to Alaska to collect signatures.

Kohlhaas has been hired to collect signatures for Stand for Salmon's initiative, as well as three other ballot propositions that still are awaiting certification from Mallott's office — two that would enshrine elements of the federal Affordable Care Act in state law, and a third that proposes to impose more restrictions in state laws governing legislators' travel, per diem and lobbyist-paid meals.

Kohlhaas and Bonner are represented by Ken Jacobus, former attorney for the Alaska Republican Party. They claim in their four-page complaint that the state ban on nonresident signature gatherers violates the rights of free speech, political association and the right to petition the government set out by the U.S. Constitution.

A similar federal lawsuit was dismissed in 2013 by U.S. District Judge John Sedwick. In his decision, Sedwick said the complaint wasn't ready for judicial review because the aspiring Outside signature gatherer hadn't yet moved to Alaska nor suffered an injury based on the state's residency requirements.

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