Court strikes down parts of Stand for Salmon measure before approving it for November ballot

Alaska’s Supreme Court struck down parts of a controversial ballot measure placing restrictions on human activities, including construction, along salmon-bearing streams.

Large parts of the measure were left intact by the court, however. The stripped-down version of Ballot Measure No. 1 will appear on the November general election ballot.

Proponents of the ballot measure, a coalition of environmental and fisheries groups called “Stand for Salmon,” said they are generally satisfied with the court ruling because the justices approved key goals of the original initiative.

In its decision, the court removed sections that would have effectively blocked large-scale mining projects, including bans on storage and disposal of mine tailings, diversion of streams and a prohibition against activities causing “substantial” or permanent damage to streams.

What remains, however, is a new permit procedure replacing the current Title VI habitat permits for projects built along rivers, streams and adjacent wetlands. A presumption that most waterbodies in the state are anadromous, or supporting migrating fish, is also approved.

Currently the state Dept. of Fish and Game conducts surveys of rivers and streams and compiles a list of anadromous streams.

Stand for Salmon argues this is inadequate and that because of constraints in the fish and game department budget only half the salmon-bearing streams in the state are on the list.

The ballot proposition flips this, so that all water bodies are presumed anadromous unless proven not to do,

The burden of proving that a water body does not support anadromous fish, however, falls on whoever proposes an activity, who would bear the cost of field tests required.

Most of the impacts of the ballot measure, if it were be passed by voters, would be on the state Department of Transportation and Public Facilities, which does construction and major maintenance on roads and highway near rivers and streams.

Stand for Salmon, meanwhile, feels the supreme court left its key objective intact, mainly a higher regard for fish habitat in the state’s permitting system along with explicit standards for protection of streams set out in state law.

Those include maintaining water quality and temperature in anadromous streams; maintaining an adequate flow of water; protecting waters and wetlands that connect with anadromous streams; ensuring the stability of banks along streams and water bodies, and ensuring the diversity of aquatic habitat supporting streams.

Stand for Salmon said it was satisfied with the decision, overall. “While the loss of those provisions will remove important salmon protections, the Supreme Court rejected the state’s argument that the initiative was wholly unconstitutional and agreed that Alaskans should have a right to vote on the issue. The initiative will update an ineffective, outdated state law governing development in salmon habitat,” Stand for Salmon said in a statement.

Opponents, calling themselves “Stand for Alaska,” said the modified initiative leaves the new permit system intact and contains terms that are vague and that will have to be clarified by regulation, which themselves may be contested in court.

The new “major anadromous fish habitat permit” would replace the current stream-crossing permits issued by the state Dept. of Fish and Game with a new system of “major” and “minor” permits for crossings or activities that affect streams or water bodies.

There is also a provision for “minor” permit, for more routine activities along streams,

What constitutes a major permit, however, is unclear in the ballot language and would have to be spelled out in regulation, but a key concern for development groups is that the permits would require an analysis of alternatives, a kind of mini-Environmental Impact Statement, and that Commissioner of Fish and Game’s decision in approving a major permit would be subject to appeals.

State Sen. Cathy Giessel, an Anchorage Republican who chairs the resources committee of the state senate, said the court’s decision “is sending Alaska voters an initiative with muddled language and clear hazards,” through delays for development projects.

Sen. John Coghill, R-Fairbanks, who chairs the Senate Judiciary Committee, said there may still be constitutional issues in the ballot measure. “The (court) decision is mixed. If the initiative passes, the concern is that salmon (will) have an elevated priority over other constitutional competing issues,” Coghill said, meaning protection for salmon would trump an economic development or community project.

The core issue in the lawsuit before the supreme court was whether a citizen initiative can decide on allocations of state assets, in this case preempting mining to protect fish.

In contesting the ballot proposition, the state administration argued that the state Constitution reserves those decision to the Legislature. The supreme court agreed, in part, striking parts of the ballot proposition.