Salmon habitat advocates scale back initiative ambitions after an attorney general’s suggestion

The sponsors of an initiative that would protect salmon habitat have substituted a new, less ambitious version of their proposal after Alaska Gov. Bill Walker's administration warned that the first version would have unconstitutionally limited projects like dams, mines and pipelines.

"It didn't sound like the first one was going to fly," said Mike Wood, a Cook Inlet commercial setnet fisherman and one of the initiative's three sponsors.

The substitute language is now under review and its backers argue that the revisions should satisfy the concerns raised by Walker's administration, by giving regulators more discretion to approve or deny development permits.

The sponsors submitted their original initiative application in May. The eight-page proposal aimed to create a new permitting system for activity in spawning fish habitat, with a ban on projects that cause "substantial damage to anadromous fish habitat," as well as any that require perpetual water treatment, which could include large-scale mines.

[New Alaska habitat protection initiative would turn tables on miners, development]

The legislation would violate a constitutional ban on using initiatives to appropriate a state asset — in this case, waters for anadromous fish like salmon, the Alaska Department of Law, which reviews initiative applications, argued in a June 30 letter to Wood and the two other sponsors.

The original initiative, wrote Assistant Attorney General Libby Bakalar, "would outright prohibit the use of anadromous waters for certain development purposes, leaving insufficient discretion to the Legislature to determine how to allocate those state assets and thus appropriating them."

Bakalar buttressed her opinion by citing the sponsors' own words in a May 17 Alaska Dispatch News opinion piece — a state-level parallel to the way federal courts cited President Donald Trump's anti-Muslim tweets in blocking his travel ban on people from Muslim-majority nations.

In the opinion piece, the initiative sponsors described their proposal as a "solution that puts everyday Alaskans in control of the state's destiny," and referenced the threat to salmon habitat posed by big development proposals like the Pebble mine, the Susitna dam and the Chuitna coal project.

The letter from Bakalar gave the sponsors the option to withdraw their initiative before the law department formally recommended that it be rejected — a step the sponsors ultimately took.

Wood said the original initiative wasn't intended to veto specific projects but instead was designed "just to strengthen the permitting system, raise the bar."

"It wasn't going to stop anything," he said. "It was just going to make it, probably, a little more difficult for the mining, oil and gas people."

The sponsors last week submitted their substitute version, along with an 11-page letter from Valerie Brown, legal director at the environmental law firm Trustees for Alaska.

Brown's letter outlined her disagreement with Bakalar's interpretation, saying the original initiative aimed to simply regulate fish habitat rather than giving it away — with projects still allowed to occur as long as they don't cause "significant adverse impacts."

Brown added that the sponsors' opinion piece doesn't show that they're trying to ban big development projects, but instead "provides examples of why more regulation is needed to prevent harm to fish habitat."

"These statements do not convert an allowable regulatory proposal into an unlawful appropriation," Brown said.

The sponsors nonetheless rewrote four provisions in the initiative to address the law department's objections, she added.

The rewritten sections address water treatment, dewatering of fish habitat and stream relocation and also define "substantial damage."

The effect of the changes is to give the Legislature more discretion over permitting decisions, Brown wrote, and it also narrows the conditions under which permits could be denied.

Rather than barring permits for any activity that would require water treatment in perpetuity, for example, the new version of the initiative only restricts permits for storage or disposal of mining waste that could adversely affect fish habitat. It also would allow permanent stream relocation that disrupts fish passage — which was initially proposed to be banned — as long as the project still provides for some type of fish passage.

If the changes satisfy state attorneys, they're still unlikely to mollify supporters of national resource extraction, who opposed the original initiative. The replacement would be "catastrophic" for the state's economy, argued Marleanna Hall, executive director of the Resource Development Council for Alaska, which represents the oil and gas, mining, timber, tourism and fishing industries.

"We all share the same intent to safeguard Alaska's salmon fisheries," she said. But her organization supports existing protections, said Hall, who described the initiative as a "disproportionate response to a problem that we don't believe exists."

Hall said she wouldn't be surprised to see a legal challenge if the lieutenant governor's office — which has the authority to certify or deny initiative proposals — approves the replacement version.