Mallott v Stand For Salmon – Brief and Amici Analysis

Stand for Salmon 2018 Voter Initiative

 

 

Stand for Salmon Title
Michael Wood Chair
Paula DeLaiarro Treasurer
Gayla Hoseth Co-Chair
Ryan Schryver Deputy Treasurer
2018 Expend.  $               19,711.48

 

 

 

 

 

 

Stand for Alaska Title
Marleanna Hall Chair
Cheryl Fasca Treasurer
Aaron Schutt Co-Chair
Joey Merrick Co-Chair
Kati Capozzi Deputy Treasurer
April Cooley Deputy Treasurer
Deantha Crockett Deputy Treasurer
Kara Moriarty Deputy Treasurer
Portia Babcock Deputy Treasurer
Kim Reitmeier Deputy Treasurer
Karen Matthias Deputy Treasurer
Jaeleen Kookesh Deputy Treasurer
2018 Expend.  $             222,632.70

 

Stand for Salmon voter initiative ballot backers are relying on the 2007 Clean Water Initiative language which passed a 2008 Alaska Supreme Court ruling stating that the 2007 initiative was not in violation of the multiple-use or Alaska State Legislature plenary powers clauses in the Alaska State Constitution.  The multiple-use clause allows for all manner of public land use and management – i.e. mining, oil and gas, sport hunting and fishing, commercial fishing, and subsistence. Each natural resource extraction project applies for a permit under the jurisdiction of both Alaska Department of Natural Resources an Alaska Department of Fish and Game.  Permitting takes into account currently existing laws, rules, and regulations disallowing wonton destruction, removal, or damage to fish and game habitat – if a development plan involves any of the above damages, the permit will not be issued by DNR and F&G.  Exceptions do exist allowing some damage, but it involves a direct trade off for reclamation of any nearby fish and game habitat relative to the proposed project.

The Stand for Salmon voter initiative ballot language proposes stricter laws, rules, and regulations surrounding any type of damage to fish and game habitat, and directly mirrors the 2007 Clean Water Initiative ballot language to skirt the multiple use clause and the clause involving the plenary power of the Alaska State Legislature to promulgate laws as the authorized branch of government to do so.  The plenary clause cannot be pre-empted by any voter initiative ballot language or measure, otherwise the proposed initiative would be disallowed, hence the utilization or mirroring of the 2007 Clean Water Initiative.

The State of Alaska Department of Law, representing the head of the Division of Elections, Lieutenant Governor Byron Mallott, argues in its brief before the Alaska Supreme Court, that the proposed ballot language may superficially pass multiple-use and plenary clauses, but the whole intent of the proposal does indeed pre-empt both clauses, and should therefore be ruled unconstitutional.  The Trustees for Alaska attorneys, representing Stand For Salmon, argue that because the proposed ballot language mirrors the 2007 Clean Water Initiative, the ballot initiative should be allowed to proceed, and if partial sections of the whole initiative are found to pre-empt the clauses, those partial sections should be severed from the text and an edited version should be allowed to proceed to the 2018 General Election ballot.  A theoretical edited version of the ballot would add laws, rules, and regulations to the existing protections of fish and game habitat already existing in the state body of law.

Amicus Curiae parties to the Alaska Supreme Court case S-16862 Mallott v Stand For Salmon include:

Bristol Bay Fishermen’s Association and Ekwok Tribal Council(for Stand for Alaska)

Alaska Oil and Gas Association(for Stand for Alaska)

Council of Alaska Producers(for Stand for Alaska)

ANCSA Regional CEOs Association(for Stand for Alaska)

Oral arguments are scheduled for 1:30PM, Thursday, April 26th, fifth floor of the Boney Courthouse, 303 K St, Anchorage, AK 99501. Parties have 30 minutes to argue before the court, with options to yield time for responses.

The Alaska Supreme Court Justices are mostly non-partisan, and often issue rulings based on intent and readings of the law, rather than based on pre-determined political disposition.  This century there have been anywhere between 3 and 6 proposed ballot initiatives, depending on accreted versions, similar to the current pending Stand For Salmon initiative, which all failed on multiple-use clause grounds in state Superior or Supreme Courts, and did not arrive to a General Election ballot.  The Appellees Stand For Salmon/Trustees for Alaska in my opinion hold the weaker argument compared to the Appellants State Department of Law/Lt Gov Mallott, and I do not anticipate the Stand For Salmon ballot language to pass constitutional muster. The Supreme Court will expedite a written ruling by June 2018 to allow time for any potential 2018 General Election ballot requirement fulfillments.

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