Craig Stowers, Chief Justice
Daniel Winfree, Peter Maassen, Joel Bolger, Susan Carney
State of Alaska Assistant Attorney General
Joanne Greene, representing Alaska Division of Elections
Trustees For Alaska/Stand For Salmon Attorneys
Valerie Brown, Trustees for Alaska
Time convened: 1:30PM
Notes paraphrased with argument highlights only, not including direct quotes. Please refer to 360North.org for complete video archive of oral argument footage and accurate record.
State of Alaska Opening Arguments
The central provisions of ballot initiative 17FHS2 are appropriations of public assets in nature, and are inseverable. Amici Briefs are essentially affidavits proving large development projects in the state would not be allowable under the proposed laws of 17FHS2. Also, the plain – and essential – language of 17FSH2 cannot be struck by the Court without significantly altering the essence of the initiative, therefore mooting the constitutionality of preparing a ballot vote.
Chief Justice Stowers– Qualify the language “adversely affected”
“Adversely affected” is included in 17FHS2, but following the term, legislative discretion and authority is effectively bypassed with permanent, barring language resulting in potential permitting denial of large development projects throughout the state.
e.g. “substantial damage” in Section 7 – permanently barring language which legislature, Department of Natural Resources, and Department of Fish and Game cannot exercise constitutional and legislative authority to allow and enforce the constitutional multiple-use clause
Chief Justice Stowers– Suggesting Appellant arguments will be followed, it is the Court’s duty to construe ballot initiative language in favor of the sponsors
Granted the constitution has a process to protect and allow sponsored ballots, there has been a three-prong test established by this Court:
Prong One: Unconstitutional language can be severed
Prong Two: Severability cannot result in substantially changing the spirit of the measure
Prong Three: …
Chief Justice Stowers interrupting:What if the Court does sever certain sections of 17FHS2?
The three-prong test still stands as the rubric, and 17FSH2 by interpretation cannot pass the test.
Appellee continuing presented argument without dialogue:
The entire permitting scheme described by the proposed sections of 17FHS2 involves “adversely affected,” “substantially damaged,” and permanent, barring language – if the Court does sever provisions involving appropriations and public assets, and if the Court does sever any permanent, barring language disallowing legislative discretion and constitutional authority of the Department of Fish and Game, the sections are so interwoven that severing one part or two parts from the whole will substantially change the essence of 17FHS2, effectively ruling the initiative unconstitutional.
Justice Winfree:In Kolhaus(?) [which case?] the Court issued a ruling for that particular ballot initiative to be redrafted due to being incomplete in nature. Can 17FSH2 be redrafted, or is it too far along in the process?
17FSH2 has received all required certifications and successfully fulfilled all requirements leading up to Division of Elections certification, so it cannot be redrafted for the current election cycle.
Justice Bolger: When do parties need a decision from the Court if 17FH2 or a severed version of it were to go out on the 2018 General Election ballot?
Division of Elections has a September 5, 2018 deadline for printing ballot materials, so “a few days before that.”
Yields time with approximately 5:45 minutes remaining.
Stand For Salmon Opening Arguments
The Superior Court correctly ruled 17FHS2 as constitutional, therefore the Court should follow. “Permanent damage” arguments are misconstrued by the Appellees – a tiered permit scheme proposed by 17FHS2 provisions does in fact allow “damage” to result against anadromous streams, and does not qualify as a permanent bar against any development projects around the state. Also, any possible permit denial under 17FSH2 provisions does in fact not preclude legislative discretion and constitutional authority of the Department of Fish and Game.
Chief Justice Stowers: Arguments have been made by the Appellee and Amici that the language and provisions of 17FSH2 would in fact permanently ban any potential large project anywhere in the state.
The permitting tier scheme of the 17FSH2 provisions comprehensively encompass levels of damage from minor to major, and therefore is not permanently barring or banning projects forthwith; there are allowable thresholds of damage, and only very certain damages are disallowed and unlawful per 17FSH2 provisions.
Justice Bolger: Referring to the Alaska Fisheriescase (?), would 17FSH2 ban currently permitted projects?
There is a grandfather clause, which provides currently permitted projects to continue operations, even if unlawful in the case of 17FHS2 passing in the majority.
Chief Justice Stowers: Does 17FSH preclude legislative discretion, or merely narrow legislative discretion?
17FSH2 mirrors the language of 07WTR3, which did pass constitutional muster and was presented on the 2008 General Election ballot. 17FSH2 is a comprehensive vetting process for permitting development activities involving anadromous fish waters, and deals with varied levels of “potential harm,” and considering vagueness of vetting process and varied levels as described of potential harm, there is in fact a constitutional framework for legislative discretion to finalize determination of “adversely affected,” “potential harm,” and “substantially damaged.”
Chief Justice Stowers: Going back to the grandfather clause – what if there is an approved exploration permit, but not a final project permit? Would the work of an exploration permit go to waste if 17FSH2 passes and a final project permit is unlawful?
A conjectural question with no facts – no firm answer readily available.
Justice: expand on “harm,” or “resulting harm,” and what about the provisions barring any future off-site mitigation, reclamation, and/or rehabilitation?
Mitigation, reclamation, and rehabilitation are essentially “enabling statutes” and is a proponent of destructive development practices
Justice: What if a “major permit” and “substantial damage” provisions are found to be unconstitutional? Are those provisions severable?
Yes, they are severable, but the Stand For Salmon group would like the whole initiative to be ruled constitutional and presented on the 2018 General Election ballot.
Appellee continuing argument without dialogue:
17FSH2 also includes new public process and participation in the permitting process of development, adds enforcement mechanisms against wonton and unlawful damage, and further expands Department of Fish and Game permitting jurisdiction, particularly adding an assumption that most waterways and stream are anadromous, which is currently not in statute. All of these additional provisions do not fall under appropriations of public assets interpretation and are therefore severable and able to stand on a ballot question.
Justice Winfree: Let’s refer to Section 2, B(1-8), involving habitat elements and term definitions which are important to fish. How is the Department of Fish and Game to consider these proposed sections? Mandatory considerations? Advisory considerations? Guidelines? What type of standards are [these]? What about “proper protection”? Is that prescriptive guidance?
“Proper protection” can be considered as a “trigger” under the tiered permitting system, indicating a higher tiered permitting regime to better protect anadromous water ways.
Justice Winfree:What about the term “maintain”? Is “maintain” prescriptive or mandatory?
“Maintain” is a carry-over from current statute.
Chief Justice Stowers: What about the language referring to the Commissioner of Fish and Game – “shall ensure” by “maintaining”?
“Shall ensure” and “maintaining” properly fall under Commissioner discretion and is deliberately kept vague to allow for that constitutional discretion to stand.
Chief Justice Stowers: What about “permit conditions and measures” under Section 8? What about the particular line “notwithstanding [subsection] B, a permit may not be granted.”
The language is concrete in that a permit may or may not be granted under the proposed tiered permitting system, and this is in fact not a public assets appropriation test.
Chief Justice Stowers continued: What if the Court finds permanently barring language in the initiative proposals, as to what will and what will not be allowable development activites?
The Department of Fish and Game will continue to hold discretionary authority under the proposed tiered permitting system, and therefore passes the constitutionality test.
Chief Justice Stowers continued: What about the following terms and barring language: “Substantial damage,” “adversely affected,” “recover and restore,” and “reasonable period”?
The terms are kept vague in the 17FSH2 language provisions, correctly allowing for Department of Fish and Game discretionary authority to make rules and regulations determining allowable and disallowed development activities based on the above terms.
We respectfully request the Court hold interpretations of public appropriations and constitutionality questions to a narrow focus, and affirm the Superior Court ruling.
Appellant Rebuttal (allowed 7 minutes to rebut by the Chief Justice):
The Department of Fish and Game cannot get around “significantly damaged” habitat language, therefore precluding legislative discretion and constitutional authority, ruling 17FSH2 moot and inseverable. We respectfully request the Court to reverse the Superior Court ruling and find 17FSH2 unconstitutional.