Judge overrules Lt. Gov. Mallott on fisheries ballot measure

Matter may be appealed to Alaska Supreme Court

Anchorage Superior Court Judge Mark Rindner has overruled Lt. Gov Byron Mallott: A proposed fisheries ballot initiative is legal.


The decision may be appealed to the Alaska Supreme Court.

On Monday, less than a week after he heard oral arguments in his Anchorage courtroom, Rindner said the measure does not appropriate state waters to fish, something Assistant Attorney General Elizabeth Bakalar had argued. The Alaska Constitution forbids ballot measures that make appropriations.

“17FSH2 does not explicitly favor any particular use of anadromous fish habitat between recreational fishing, kayaking, commercial fishing, hatcheries, mining, pipeline or dams; it only concerns itself with the condition of the water,” Rindner’s opinion states.

“17FSH2” is the code assigned by the Alaska Division of Elections to a pro-fisheries measure proposed earlier this year. If the measure is approved by voters and becomes law, it would greatly strengthen regulatory protections for salmon-bearing rivers, lakes and streams. By default, all rivers, lakes and streams would be be labeled salmon-bearing, unless proven otherwise.

Under the Alaska Constitution, the lieutenant governor must rule whether a proposed ballot measure follows the constitution. Under Article XI, Section 7 of the constitution, a measure can’t make an appropriation — that’s an action reserved for the Legislature.

An appropriation can involve money, but it can also include any publicly owned item, such as state land or water.

In a legal opinion, Bakalar wrote that 17FSH2 is so sweeping that it effectively allocates state waters to salmon fisheries. With that opinion in hand, Mallott rejected the measure as unconstitutional.

Mallott and the state were backed up by the Council of Alaska Producers, which has been among several organizations that say the measure will effectively bar mining, drilling and construction projects that disturb salmon streams.

The Council of Alaska Producers sent an attorney to last week’s oral arguments, and Rindner devoted a substantial amount of space in his opinion to rebut those arguments as well as those offered by the state.

He concluded that the measure is flexible enough to give the Legislature latitude in its implementation. He wrote, in part: “… prediction of the impact of the initiative at this time is pure speculation. The court has no competent evidence regarding the impact of the initiative. Nor does such evidence exist. What the impact of the initiative will be necessarily will depend on what the Legislature does. …”

Rindner’s decision allows petition backers (known collectively as Stand for Salmon) to print signature booklets and begin collecting signatures.

In order to get their measure to voters in 2018, backers need to have the signatures of 32,127 Alaska voters before the Legislature convenes on Jan. 16, 2018. Those signatures must come from places across the state.

In the meantime, the state is considering an appeal.

In a prepared statement, Bakalar wrote, “Clearly we disagree with the court’s legal conclusion that the measure is a constitutional use of the initiative, for all of the reasons we stated in our briefs to the superior court on this issue (the only issue in the case). Whether to appeal to the Alaska Supreme Court includes an evaluation process that will take several weeks to complete, and that process is underway.”

• Contact reporter James Brooks at james.k.brooks@juneauempire.com or call 523-2258.


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