Mallot v. Stand for Salmon ( 2018 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
BYRON MALLOTT, LIEUTENANT )
GOVERNOR OF THE STATE OF ) Supreme Court No. S-16862
ALASKA, and STATE OF ALASKA, )
DIVISION OF ELECTIONS, ) Superior Court No. 3AN-17-09183 CI
)
Appellants, ) OPINION
)
v. ) No. 7274 – August 8, 2018
)
STAND FOR SALMON, )
)
Appellee. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Mark Rindner, Judge.
Appearances: Joanne Grace, Elizabeth Bakalar, and
Katherine Demarest, Assistant Attorneys General,
Anchorage, and Jahna Lindemuth, Attorney General, Juneau,
for Appellants. Katherine Strong and Valerie Brown,
Trustees for Alaska, Anchorage, for Appellee. James E.
Torgerson and Tina M. Grovier, Stoel Rives LLP,
Anchorage, and Ryan P. Steen, Stoel Rives LLP, Seattle,
Washington, for Amici Curiae Alaska Oil and Gas
Association and Resource Development Council for Alaska,
Inc. Matthew Singer and Lee C. Baxter, Holland & Knight
LLP, Anchorage, for Amicus Curiae ANCSA Regional
Association. Geoffrey Y. Parker, Law Office of Geoffrey Y.
Parker, Anchorage, for Amici Curiae Bristol Bay
Fishermen’s Association and Ekwok Village Council. Eric
B. Fjelstad, James N. Leik, and Elena M. Romerdahl, Perkins
Coie LLP, Anchorage, for Amicus Curiae Council of Alaska
Producers.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger,
and Carney, Justices.
PER CURIAM
WINFREE, Justice, dissenting in part.
I. INTRODUCTION
The Lieutenant Governor declined to certify a proposed ballot initiative that
would establish a permitting requirement for activities that could harm anadromous fish
habitat, reasoning that the initiative effected an appropriation of state assets in violation
of article XI, section 7 of the Alaska Constitution. The initiative sponsors filed suit, and
the superior court approved the initiative, concluding that the proposal would not
impermissibly restrict legislative discretion. We conclude that the initiative would
encroach on the discretion over allocation decisions delegated to the Alaska Department
of Fish and Game by the legislature, and that the initiative as written therefore effects an
unconstitutional appropriation. But we conclude that the problematic sections may be
severed from the remainder of the initiative. Accordingly, we reverse the judgment of
the superior court and remand for the superior court to direct the Lieutenant Governor
to sever the offending provisions but place the remainder of the initiative on the ballot.
II. BACKGROUND
A. Facts
In May 2017 the directors of the Alaska-based nonprofit organization Stand
for Salmon (the Sponsors) submitted an application for an initiative entitled “An Act
providing for protection of wild salmon and fish and wildlife habitat,” which the
Division of Elections denominated “17FSHB.” After reviewing 17FSHB, the
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Department of Law concluded that the initiative effected an appropriation in violation
of article XI, section 7 of the Alaska Constitution.1 The Department found that the
initiative would restrict the legislature’s ability to allocate anadromous2 fish habitat
among competing uses by “outright prohibit[ing] the use of anadromous waters for
certain development purposes.” The Department thus informed the Sponsors that it
intended to recommend that the Lieutenant Governor deny certification of 17FSHB.
Upon receiving the Department of Law’s analysis, the Sponsors withdrew
17FSHB and filed a revised version of the initiative in July, which the Division of
Elections denominated “17FSH2.” Like its precursor, 17FSH2 proposes a bill that
would “amend, repeal, and reenact” provisions of AS 16.05, which requires persons
seeking to engage in activities that could damage certain state waters to first secure a
permit from the Department of Fish and Game (ADFG).3 The initiative would expand
this permit requirement to cover all activities that “may use, divert, obstruct, pollute,
disturb or otherwise alter anadromous fish habitat.”4 Under the proposed permitting
1
“The initiative shall not be used to . . . make or repeal appropriations . . . .”
Alaska Const. art XI, § 7.
2
Anadromous fish, such as salmon, are those which are born in fresh water,
spend most of their life at sea, and return to fresh water to spawn. See Species, N. PAC.
ANADROMOUS FISH COMM’N, https://npafc.org/species/ (last visited July 30, 2018).
3
See AS 16.05.871, .881 (requiring that a person obtain ADFG approval if
the person “desires to construct a hydraulic project, or use, divert, obstruct, pollute, or
change the natural flow or bed of a specified river, lake, or stream, or to use wheeled,
tracked, or excavating equipment or log-dragging equipment in the bed of a specified
river, lake, or stream”).
4
Section 3 of the initiative (proposed AS 16.05.871(f)) defines “anadromous
fish habitat” as “a naturally occurring permanent or intermittent seasonal water body, and
the bed beneath, including all sloughs, backwaters, portions of the floodplain covered by
(continued...)
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system, “major” permits would be required for activities with “the potential to cause
significant adverse effects” to fish habitat, while “minor” permits could be issued for
projects that would have little impact on such habitat.5
The initiative enumerates requirements that would have to be satisfied prior
to issuance of a permit and establishes civil and criminal penalties for anyone who
“violates or permits a violation of” the permitting scheme. Additionally, Section 2 of the
initiative would add the following new section to AS 16.05:
Sec. 16.05.867. Fish and wildlife habitat protection
standards.
(a) The commissioner shall ensure the proper protection
of fish and wildlife, including protecting anadromous fish
habitat from significant adverse effects.
(b) When issuing a permit under AS 16.05.867-16.05.901,
the commissioner shall ensure the proper protection of
anadromous fish habitat by maintaining:
(1) water quality and water temperature necessary
to support anadromous fish habitat;
(2) instream flows, the duration of flows, and
natural and seasonal flow regimes;
(3) safe, timely and efficient upstream and
downstream passage of anadromous and native resident fish
4
(...continued)
the mean annual flood, and adjacent riparian areas, that contribute, directly or indirectly,
to the spawning, rearing, migration, or overwintering of anadromous fish.” Proposed
AS 16.05.871(c) establishes a presumption that state waters are anadromous fish habitat
if they are connected to marine waters or to waters designated by the ADFG
commissioner as anadromous fish habitat.
5
ADFG could also issue a “general permit” that would sanction entire
classes of minimal-impact activities within a particular region.
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species to spawning, rearing, migration, and overwintering
habitat;
(4) habitat-dependent connections between
anadromous fish habitat including surface-groundwater
connections;
(5) stream, river and lake bank and bed stability;
(6) aquatic habitat diversity, productivity, stability
and function;
(7) riparian areas that support adjacent fish and
wildlife habitat; and
(8) any additional criteria, consistent with the
requirements of AS 16.05.867-AS 16.05.901, adopted by the
commissioner by regulation.
(c) The commissioner is authorized, in accordance with
AS 44.62, to adopt regulations consistent with AS
16.05.867-16.05.901. All regulations, administrative actions
and other duties carried out under this chapter shall be
consistent with and in furtherance of the standards set out in
this section.
The initiative also enumerates certain circumstances in which a permit “may
not be granted.” Section 7 of the initiative would add a new section to AS 16.05 that
reads in part:
Sec. 16.05.887. Permit conditions and mitigation
measures.
(a) The commissioner shall prevent or minimize
significant adverse effects to anadromous fish habitat. . . .
[A]n anadromous fish habitat permit may not be granted for
an activity that will:
(1) cause substantial damage[6] to anadromous fish
habitat under AS 16.05.877(b);
6
Emphasis added.
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(2) fail to ensure the proper protection of fish and
wildlife;
(3) store or dispose of mining waste, including
overburden, waste rock, and tailings in a way that could
result in the release or discharge of sulfuric acid, other acids,
dissolved metals, toxic pollutants, or other compounds that
will adversely affect, directly or indirectly, anadromous fish
habitat, fish, or wildlife species that depend on anadromous
fish habitat;
(4) replace or supplement, in full or in part, a wild
fish population with a hatchery-dependent fish population;
(5) withdraw water from anadromous fish habitat in
an amount that will adversely affect anadromous fish habitat,
fish, or wildlife species; or
(6) dewater and relocate a stream or river if the
relocation does not provide for fish passage or will adversely
affect anadromous fish habitat, fish, or wildlife species.
Mirroring the first subsection quoted above, the major permitting scheme outlined in
Section 6 of the initiative includes the following provision:
Sec. 16.05.885. Major anadromous fish habitat permit.
....
(e) The commissioner may issue a major permit to an
applicant only if:
....
(3) the activity, as authorized by the written permit
determination, will not cause substantial damage[7] to
anadromous fish habitat under AS 16.05.877(b) . . . .
Section 5 of the initiative (proposed AS 16.05.877(b)) would require ADFG when
evaluating a proposed activity to find that it will cause “substantial damage” to
7
Emphasis added.
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anadromous fish habitat — thus precluding that activity from receiving a permit —
when:
[D]espite the application of scientifically proven, peer
reviewed and accepted mitigation measures under AS
16.05.887, the anadromous fish habitat will be adversely
affected such that it will not likely recover or be restored
within a reasonable period to a level that sustains the water
body’s, or portion of the water body’s, anadromous fish,
other fish, and wildlife that depend on the health and
productivity of that anadromous fish habitat.
The Department of Law reviewed the revised initiative and again concluded
that it would effect an appropriation. It found that like 17FSHB, 17FSH2 would
“effectively preclude some uses [of anadromous fish habitat] altogether,” therefore
“leaving insufficient discretion to the legislature to determine how to allocate those state
assets.” The Department thus recommended that the Lieutenant Governor decline to
certify the application. Relying on the Department’s analysis, the Lieutenant Governor
declined to certify 17FSH2 in September 2017.
B. Procedural History
The Sponsors filed suit that same month challenging the Lieutenant
Governor’s conclusion and seeking a preliminary injunction to allow immediate
circulation of the initiative for voter signatures. At the parties’ request, the superior court
converted the preliminary injunction motion into cross motions for summary judgment.
The Sponsors argued that “an initiative may regulate activities — even to
the point where the activities may be prohibited — so long as the Legislature retains
discretion in implementing the initiative’s provisions.” They further argued that 17FSH2
is a “permissible regulatory initiative” because “its manifest intent is to protect and
preserve fish and wildlife habitat, it does not target any one use, and it retains discretion
in the Legislature.” The Lieutenant Governor and the Division of Elections (collectively,
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the State) contended that 17FSH2 would “preclude[] the use of even a single waterway
for a major development project,” unconstitutionally “depriv[ing] the legislature of
authority to allocate fish streams among competing uses.” The State recognized that the
initiative does not expressly prohibit “the alteration of streams for major development
projects,” but argued that a restriction of legislative discretion “need not be express to
render it unconstitutional.”
The superior court held oral argument on October 3, 2017. On October 9,
the court issued an order granting the Sponsors’ motion for summary judgment and
denying the State’s cross-motion. The court characterized the “central disagreement”
between the parties as concerning “whether 17FSH2 is a permissible regulation or an
allocation of public assets that impermissibly limits legislative discretion.” Rejecting the
State’s argument, the court likened 17FSH2 to the initiative we upheld in Pebble Ltd.
Partnership v. Parnell,8 and concluded that the initiative “leaves the legislature discretion
in its implementation through the use of a plethora of undefined terms.” Because the
court concluded that 17FSH2 is constitutionally permissible, it ordered the Lieutenant
Governor to print petition booklets as required by statute.
The State appeals. Amicus briefs supporting the State’s position were
submitted by the Alaska Oil and Gas Association and Resource Development Council
for Alaska, Inc.; by the ANCSA Regional Association; by the Bristol Bay Fishermen’s
Association and the Ekwok Village Council; and by the Council of Alaska Producers.9
III. STANDARD OF REVIEW
We review questions of law, including the constitutionality of a ballot
initiative and the meaning of the constitutional term “appropriation,” using our
8
215 P.3d 1064 (Alaska 2009).
9
We thank amici for providing exemplary briefing to the court.
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independent judgment, adopting the rule of law that is most persuasive in light of
precedent, reason, and policy.10 “When reviewing initiatives, we ‘construe voter
initiatives broadly so as to preserve them whenever possible. However, initiatives
touching upon the allocation of public revenues and assets require careful consideration
because the constitutional right of direct legislation is limited by the Alaska
Constitution.’ ”11
IV. DISCUSSION
A. The Alaska Constitution Prohibits The Use Of An Initiative To Usurp
Or Encroach On The Legislature’s Sole Authority To Allocate State
Resources.
For more than two centuries, Alaska’s economy has been centered around
the development and harnessing of its natural resources, from the fur trade of the 18th
and 19th Centuries and the gold rushes of the 1890s, to the growth of copper mining and
commercial fishing in the early 20th Century and the oil discoveries of the 1950s and
1960s. The need for responsible management of Alaska’s natural resources to promote
economic self-sufficiency in light of competing interests is reflected in article VIII,
section 1 of the Alaska Constitution, which states that “[i]t is the policy of the State to
encourage the settlement of its land and the development of its resources by making them
available for maximum use consistent with the public interest.”
10
See Anchorage Citizens for Taxi Reform v. Municipality of Anchorage, 151
P.3d 418, 422 (Alaska 2006) (citing Pullen v. Ulmer, 923 P.2d 54, 58 (Alaska 1996));
Staudenmaier v. Municipality of Anchorage, 139 P.3d 1259, 1261 (Alaska 2006) (citing
Alaska Action Ctr., Inc. v. Municipality of Anchorage, 84 P.3d 989, 991 (Alaska 2004)).
11
All. of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273 P.3d
1128, 1134 (Alaska 2012) (quoting Anchorage Citizens, 151 P.3d at 422).
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The Alaska Constitution also grants Alaskans a broad right to self-
government through the use of the ballot initiative to “propose and enact laws.”12
However, article XI, section 7 contains several express limitations on the power of the
ballot initiative, including that “[t]he initiative shall not be used to . . . make or repeal
appropriations.”13 The Alaska Constitution does not provide any definition of the term
“appropriation,” so it has been the duty of this court to distinguish between initiatives
that permissibly regulate and those that impermissibly appropriate.
In some cases, that task has been a simple one. In Thomas v. Bailey, we
concluded that an initiative that would transfer 30 million acres of state land to individual
residents was an unconstitutional appropriation because it was exactly the type of “give­
away” program the delegates at the constitutional convention wanted to prohibit.14 We
later applied the same reasoning to invalidate a ballot initiative that would require the
Municipality of Anchorage to sell a municipally-owned utility worth nearly $33 million
to a private non-profit organization for one dollar.15
But not all appropriation cases have involved this kind of blatant give­
away. In McAlpine v. University of Alaska, we noted that “the more typical
appropriation involves committing certain public assets to a particular purpose.”16 “The
12
Alaska Const. art XI, § 1.
13
See also AS 15.45.010 (“The law-making powers assigned to the legislature
may be exercised by the people through the initiative. However, an initiative may not
be proposed . . . to make or repeal appropriations . . . .”).
14
595 P.2d 1, 2, 7-9 (Alaska 1979).
15
Alaska Conservative Political Action Comm. v. Municipality of Anchorage,
745 P.2d 936, 936-38 (Alaska 1987).
16
762 P.2d 81, 88 (Alaska 1988).
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reason for prohibiting appropriations by initiative,” we explained, was “to ensure that the
legislature, and only the legislature, retains control over the allocation of state assets
among competing needs.”17 On that basis, we concluded that an initiative that would
establish a separate community college system and require the University of Alaska to
transfer a particular amount of property to the new system was an impermissible
appropriation.18 By contrast, in City of Fairbanks v. Fairbanks Convention & Visitors
Bureau, we upheld an initiative that repealed a dedication of municipal bed tax revenues
and set the revenues aside for the city’s discretionary fund because it “[did] not reduce
the [city] council’s control over the appropriations process,” but rather “allow[ed] the
council greater discretion in appropriating funds than [did] the current law.”19
In Pullen v. Ulmer, we distilled from this case law “two core objectives of
the constitutional prohibition on the use of initiatives to make appropriations”: “First,
the prohibition was meant to prevent an electoral majority from bestowing state assets
17
Id. (emphasis in original). For purposes of an appropriation analysis, we
generally treat authority over allocation decisions delegated to an executive agency or
other government entity as that of the legislature. See id. at 91 (University of Alaska);
see also Pebble Ltd. P’ship v. Parnell, 215 P.3d 1064, 1077 (Alaska 2009) (Department
of Environmental Conservation and Department of Natural Resources); Pullen v. Ulmer,
923 P.2d 54, 64 (Alaska 1996) (Board of Fisheries).
18
McAlpine, 762 P.2d at 89-91.
19
818 P.2d 1153, 1157 (Alaska 1991); see also id. at 1158-59 (“The initiative
in this case does not infringe on flexibility in the budget process. Indeed, it removes
existing restraints on the city council’s flexibility. . . . By no means would the initiative
restrict the power of the city council in distributing the bed tax revenues. The initiative
might be better described as an ‘undedication’ than a dedication.”).
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on itself. Second, the prohibition was designed to preserve to the legislature the power
to make decisions concerning the allocation of state assets.”20
These core objectives have been the foundation of our appropriation
analysis.21 But we have occasionally explained the test for evaluating those objectives
in different terms depending on the context. In some cases we explained that an initiative
effects an appropriation when it “would set aside a certain specified amount of money
or property for a specific purpose or object in such a manner that it is executable,
mandatory, and reasonably definite with no further legislative action.”22 In others we
explained that the “primary question” is “whether the initiative narrows the legislature’s
range of freedom to make allocation decisions in a manner sufficient to render the
initiative an appropriation.”23 In still others we explained that “the line between an
unobjectionable initiative that deals with a public asset and one that is an impermissible
appropriation is crossed ‘where an initiative controls the use of public assets such that
the voters essentially usurp the legislature’s resource allocation role.’ ”24 These stated
tests have been useful in explaining why particular initiatives amounted to impermissible
20
923 P.2d at 63 (emphasis added).
21
See Lieutenant Governor v. Alaska Fisheries Conservation All., Inc., 363
P.3d 105, 108 (Alaska 2015); Hughes v. Treadwell, 341 P.3d 1121, 1126 (Alaska 2015);
All. of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273 P.3d 1128, 1137
(Alaska 2012); Pebble, 215 P.3d at 1074-75; Staudenmaier v. Municipality of
Anchorage, 139 P.3d 1259, 1261-62 (Alaska 2006); Alaska Action Ctr., Inc. v.
Municipality of Anchorage, 84 P.3d 989, 993-94 (Alaska 2004).
22
Alaska Action Ctr., 84 P.3d at 993 (quoting City of Fairbanks, 818 P.2d at
1157).
23
All. of Concerned Taxpayers, 273 P.3d at 1137 (quoting Pebble, 215 P.3d
at 1075).
24
Hughes, 341 P.3d at 1128 (quoting Staudenmaier, 139 P.3d at 1263).
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appropriations, but they also obscure and distract from a focus on the core objectives of
the anti-appropriations clause.
Our prior opinions repeatedly reaffirm the two core objectives by
emphasizing the importance of preserving the legislature’s authority over allocation
decisions. In Pullen, we concluded that an initiative creating an allocation preference of
salmon stock to non-commercial fishers was an appropriation both because those groups
were “specifically targeted to receive state assets,” and because “the initiative [would]
significantly reduce[] the legislature’s and Board of Fisheries’ control of and discretion
over allocation decisions.”25 In Staudenmaier v. Municipality of Anchorage, citing the
“two parallel purposes” of the anti-appropriations clause, we found unconstitutional an
initiative that would have forced the Municipality to sell a municipal electric utility
within one year.26 And in Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula
Borough, we held that an initiative that required prior voter approval for all Borough
capital projects with a total cost of more than one million dollars was an impermissible
appropriation: we reasoned that “the voters’ ability to veto a capital project, even prior
to budget approval, infringes on the assembly’s ability to allocate resources among
competing uses because there is nothing that the assembly can do to appropriate money
for that project.”27 Most recently, in Lieutenant Governor v. Alaska Fisheries
Conservation Alliance, Inc., we held that a ballot initiative that would have banned
commercial set net fishing in nonsubsistence areas was a prohibited appropriation.28 We
did so both because the initiative would be a “give-away program” benefitting all
25
923 P.2d at 63.
26
139 P.3d at 1260-63.
27
273 P.3d at 1138.
28
363 P.3d 105, 115 (Alaska 2015).
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fisheries except commercial set netters and because it would “narrow the legislature’s
and Board of Fisheries’ range of freedom in making allocation decisions” so that “neither
the legislature nor the Board would be able to allocate any salmon stock to [commercial
set netters].”29
When determining whether an initiative effects an appropriation, the proper
analysis should focus on the two core objectives we have identified. An initiative is an
impermissible give-away program if it transfers state assets into private hands.30 An
initiative also effects an appropriation if it infringes on the legislature’s ability to allocate
resources among competing uses — that is, if it fails “to ensure that the legislature, and
only the legislature, retains control over the allocation of state assets among competing
needs”31 — by forcing the legislature to make a particular allocation decision in the
future32 or by removing certain allocation decisions from the legislature’s range of
discretion.33
29
Id. at 110-12.
30
See Alaska Action Ctr., Inc. v. Municipality of Anchorage, 84 P.3d 989,
993-94 (Alaska 2004); McAlpine v. Univ. of Alaska, 762 P.2d 81, 88-89 (Alaska 1988);
Alaska Conservative Political Action Comm. v. Municipality of Anchorage, 745 P.2d
936, 938 (Alaska 1987); Thomas v. Bailey, 595 P.2d 1, 7-8 (Alaska 1979).
31
McAlpine, 762 P.2d at 88 (emphasis in original).
32
E.g., Pullen v. Ulmer, 923 P.2d 54, 63 (Alaska 1996).
33
E.g., All. of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273
P.3d 1128, 1138 (Alaska 2012); see also Alaska Action Ctr., 84 P.3d at 994-95 (“[B]y
limiting the mechanism for future change to another initiative process, the initiative’s
dedication requirement necessarily intrudes on the legislature’s control over future
designation.”).
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Barb. 17FSH2 Makes An Impermissible Appropriation Because It Explicitly
Bars ADFG From Making Certain Allocation Decisions.
With our prior case law in mind, it is clear that 17FSH2 narrows the
legislature’s range of discretion to make decisions regarding how to allocate Alaska’s
lakes, streams, and rivers among competing needs. Under both the current law and the
permitting scheme created by 17FSH2, the ADFG commissioner is charged with
managing the responsible use of waterways and fish habitat. But 17FSH2 contains two
provisions that explicitly restrict the commissioner’s discretion to make allocation
decisions.
Proposed AS 16.05.885(e)(3) provides that the commissioner “may issue
a major permit to an applicant only if . . . the activity, as authorized by the written permit
determination, will not cause substantial damage to anadromous fish habitat.” Proposed
AS 16.05.877(b) also explicitly directs the commissioner to find that an activity does
cause “substantial damage” if
despite the application of scientifically proven, peer reviewed
and accepted mitigation measures . . . the anadromous fish
habitat will be adversely affected such that it will not likely
recover or be restored within a reasonable period to a level
that sustains the water body’s, or portion of the water body’s,
anadromous fish, other fish, and wildlife that depend on the
health and productivity of that anadromous fish habitat.
The Sponsors argue that because this provision contains a number of undefined terms —
such as “adverse effects,” “likely,” and “reasonable period” — it leaves ADFG and the
legislature interpretive discretion and therefore discretion to make allocation decisions
as they see fit. But where a project like a mine or hydroelectric dam would permanently,
and perhaps irreversibly, displace fish habitat, there is no reasonable interpretation under
which that habitat would not suffer “substantial damage” as the initiative defines it. If
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the habitat has been permanently displaced, it cannot be “likely” for that habitat to be
restored within a “reasonable period,” because it never will be restored.
Similarly, proposed AS 16.05.887(a) provides in relevant part that “an
anadromous fish habitat permit may not be granted” for activities that would affect fish
habitats in various specific ways listed in six subsections. The parties dispute how to
interpret particular subsections, but in each case, it is apparent that there will be some
activities that cannot by any reasonable interpretation of the initiative’s language be
excluded from this prohibition.
To be clear, these provisions are not problematic because they are too
clearly defined; rather, they are problematic because — however they are interpreted —
they bar the commissioner from granting a permit to a project that would “cause
substantial damage” or have one of the listed effects, even if in the commissioner’s —
or the legislature’s — considered judgment the public benefits of that particular project
outweigh its effects on fish habitat. By doing so, the initiative “encroaches on the
legislative branch’s exclusive ‘control over the allocation of state assets among
competing needs’ ”34 by removing certain allocation decisions from the legislature’s
range of discretion.
Although 17FSH2 indeed contains a “plethora of undefined terms,” as the
superior court put it, that would give the legislature and ADFG some discretion in how
to implement the initiative, this only goes so far. The undefined terms give the
legislature the interpretive discretion to decide how much allocation discretion the
initiative takes away, but under any reasonable interpretation, the initiative would place
at least some projects outside the commissioner’s discretion to permit. The legislature’s
34
Alaska Action Ctr., 84 P.3d at 994 (quoting Pullen, 923 P.2d at 63).
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discretion to interpret the initiative’s provisions might affect the severity, but not the fact,
of the initiative’s infringement on the legislature’s authority over allocation decisions.
C. Our Appropriation Analysis In Pebble Ltd. Partnership v. Parnell Was
Dictum And Is Neither Binding Precedent Nor Persuasive.
We recognize that our decision in this case may seem at odds with our prior
decision in Pebble Ltd. Partnership v. Parnell.35 The initiative in that case would have
prohibited any permits or authorizations for a “large scale metallic operation” that would
release toxic pollutants in an amount that would “effect [sic] human health or welfare or
any stage of the life cycle of salmon.”36 The case presented two questions: how to
interpret the initiative, and whether the initiative would constitute an appropriation. The
superior court construed the word “effect” as used in the initiative to mean “adversely
affect” to avoid the implication that the initiative would also prohibit beneficial and
neutral effects; we did the same.37 We then concluded that although the Pebble initiative
would have restricted the legislature from allowing projects that adversely affected
public waters,38 that did not constitute an appropriation because the initiative would
“leave[] to the legislature, the Department of Environmental Conservation, and the
Department of Natural Resources the discretion to determine what amounts of specific
toxic pollutants may or may not be discharged.”39 But the entirety of our appropriations
discussion in Pebble — beyond interpreting the initiative’s language — was unnecessary
35
215 P.3d 1064 (Alaska 2009).
36
Id. at 1069.
37
Id. at 1076-77.
38
See id. at 1077 (“07WTR3 is read to preclude . . . discharges of toxic
chemicals and other mine waste that cause ‘adverse effects.’ ” (emphasis added)).
39
Id.
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because the parties to the case agreed that, as interpreted, the initiative would not
constitute an appropriation.40 In the absence of an actual dispute, our discussion was
therefore dictum.41 And though we may follow dicta when persuasive, Pebble’s
reasoning is anything but.
The primary error in Pebble was the misapplication of Pullen v. Ulmer.42
In Pullen we reasoned that an initiative directing the Board of Fisheries to “reserve a
priority for the harvest needs of common consumptive uses for each salmon stock, to the
extent that is technically possible,” would be an unconstitutional appropriation because
it would “call[] for an actual allocation, in the event of a shortage of a given salmon
species in a given geographical region, to sport, personal use, and subsistence
fisheries.”43 We reached this conclusion in part by comparing the initiative to a
presumably constitutional hypothetical initiative that would “simply amend[] ‘a series
of general legislative criteria to add more specific ones to guide the Board of Fisheries
40
See id. (“All of the parties agree that if section two of 07WTR3 is read to
preclude only discharges of toxic chemicals and other mine waste that cause ‘adverse
effects’ to humans, salmon, and waters used for human consumption or as salmon
habitat, then 07WTR3 would not make an appropriation.”).
41
See Scheele v. City of Anchorage, 385 P.2d 582, 583 (Alaska 1963) (“We
look upon what we said in [a previous] case . . . as obiter dictum, since it was not
necessary to the decision in the case.”), superseded by statute on other grounds,
AS 09.65.070; see also VECO, Inc. v. Rosebrock, 970 P.2d 906, 922 (Alaska 1999)
(holding statement in previous opinion not dictum because it “was necessary for our
holding”); Obiter dictum, BLACK’S LAW DICTIONARY (10th ed. 2014) (“A judicial
comment made while delivering a judicial opinion, but one that is unnecessary to the
decision in the case and therefore not precedential (although it may be considered
persuasive).”).
42
923 P.2d 54 (Alaska 1996).
43
Id. at 55, 64.
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in its future allocation decisions.”44 In Pebble we applied this reasoning to conclude that
the initiative’s prohibition on harm to public waters would not be an appropriation
because it was merely adding new regulatory criteria.45 But this conclusion does not
follow from its premise. The whole point of Pullen’s comparing the initiative to
hypothetical criteria was that the hypothetical criteria would not restrict the legislature’s
ultimate resource allocation freedom.46 We made it clear in Pullen that we could not
interpret the initiative as permissible guiding criteria precisely because the initiative
would “call[] for an actual allocation, in the event of a shortage of a given salmon species
in a given geographical region, to sport, personal use, and subsistence fisheries.”47 But
the Pebble initiative sought to do precisely that, in the inverse, by forbidding the
legislature from allocating any assets to projects that “adversely affect[ed]” public
waters.48 By doing so, the Pebble initiative crossed the line from permissible guiding
criteria, where ultimate discretion is retained by the legislature, to impermissible
appropriation, where the legislature is forbidden from using specific public assets for
specific purposes. It was therefore wrong to rely on Pullen to characterize a complete
prohibition on certain uses of public assets as a permissible initiative.
44
Id.
45
215 P.3d at 1077.
46
See Pullen, 923 P.2d at 64 n.15 (“[W]here the legislature retains a broad
range of freedom to make allocation decisions, an appropriation will not be found.
Under the current initiative, in cases of shortage — which is when the initiative operates
— such freedom is not retained.”).
47
Id. at 64.
48
See 215 P.3d at 1077.
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It was also wrong in Pebble to rely on new legal standards for so-called
“regulatory” initiatives. We stated in Pebble that “the legislative history of the drafting
of the Alaska Constitution and the language of the constitution itself ‘evidences the
delegates’ intent that natural resource issues would be subject to the initiative.’ ”49 We
quoted Brooks v. Wright50 for this proposition, and then announced that “the prohibition
against initiatives that appropriate public assets does not extend to prohibit initiatives that
regulate public assets, so long as the regulations do not result in the allocation of an asset
entirely to one group at the expense of another.”51 We applied this rule to conclude that
the Pebble initiative would not be an appropriation because it would “prohibit[] harm to
public assets while permitting the use of public assets and exhibiting no explicit
preference among potential users.”52 The legal foundations of this analysis are shaky at
best; there is little to no basis in our case law, and certainly none in the constitution, for
distinguishing between “regulatory” initiatives and other initiatives. And the reasoning
provided in defense of the distinction is not persuasive.
First, in Brooks we were deciding only whether the initiative process was
“clearly inapplicable” to natural resource issues, and we did not address whether the
initiative in that case (which would have banned the use of snares for trapping wolves)
49
Id. (quoting Brooks v. Wright, 971 P.2d 1025, 1029 (Alaska 1999)).
50
971 P.2d 1025 (Alaska 1999).
51
Pebble, 215 P.3d at 1077 (emphasis added).
52
Id.
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was an appropriation.53 And we recently have recognized that past initiatives that
purported to “manage” natural resources — including the initiative at issue in Brooks —
may in fact have effected or sought to effect unconstitutional appropriations.54 Second,
the rationale that a regulatory initiative is not an appropriation when it “prohibits harm
to public assets” is wholly unpersuasive.55 As this case shows, an initiative that does
nothing but “prohibit harm” can result in the complete lock-up of a public resource for
a minimum of two years.56 Third, any initiative dealing with natural resources can
plausibly be characterized as “regulating” them, so drawing a dividing line between
regulatory initiatives and other types of initiatives seems not only difficult, but ultimately
futile. We therefore were wrong in Pebble to say that the initiative would not be an
appropriation simply because it regulated natural resources.
We also were incorrect to reason that the Pebble initiative would not be an
appropriation because it did not allocate public assets to or from a user group. We
announced in Pebble that “the prohibition against initiatives that appropriate public
assets does not extend to prohibit initiatives that regulate public assets, so long as the
regulations do not result in the allocation of an asset entirely to one group at the expense
53
See 971 P.2d at 1028 & n.12 (“At no stage of this case has any party argued
that the wolf snare initiative makes or repeals an appropriation in violation of Article XI,
§ 7.”).
54
See Lieutenant Governor v. Alaska Fisheries Conservation All., Inc., 363
P.3d 105, 112-15 (Alaska 2015) (explaining that Alaska’s long history of natural
resource management by initiative does not demonstrate that such initiatives are
permissible under the appropriations restriction).
55
See Pebble, 215 P.3d at 1077.
56
See Alaska Const. Art. XI, § 6 (“[An initiative] may not be repealed by the
legislature within two years of its effective date. It may be amended at any time.”).
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of another.”57 We then had to clarify this rule in Lieutenant Governor v. Alaska
Fisheries Conservation Alliance, Inc. by explaining that an initiative is not permissible
merely because it redistributes assets from one user group to many diffuse users, as an
“overly narrow and literal reading” of Pebble would suggest.58 We instead stated a rule
that “an initiative may constitute an appropriation if it results in the complete reallocation
of an asset from a significant, distinct user group.”59 This “user group” analysis is
untethered from the constitution and our analysis of the two core objectives. It focuses
on identifying a “significant, distinct user group” and asking whether an initiative would
allocate assets “completely” to or from that group. The framework thus improperly shifts
our focus from evaluating the legislature’s ability to allocate and manage public assets
as it deems fit to defining relevant user groups and evaluating the legislature’s ability to
allocate public assets to these user groups. For instance, if an initiative completely
eliminated the legislature’s ability to allocate assets to large mining projects, but not to
small mining projects, Pebble’s constitutional analysis would turn on whether “mining
projects” or “large mining projects” constitute the relevant user group. But either way
the initiative would compromise the legislature’s resource-allocation prerogative, so any
such analysis is beside the point.60
57
215 P.3d at 1077.
58
363 P.3d at 111.
59
Id. at 112 (first emphasis in original, second emphasis added).
60
We reiterated the user group test to decide Alaska Fisheries, so our user
group analysis in that case is not dictum. See id. at 110-12. But Alaska Fisheries makes
clear that the user group test is not outcome determinative. See id. at 112 (“[A]n
initiative may constitute an appropriation if it results in the complete reallocation of an
asset from a significant, distinct user group.” (emphasis added, original emphasis
removed)). In any event, we could have reached the same result in Alaska Fisheries by
(continued...)
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Finally, in Pebble we should not have characterized legislative “discretion”
as dependent on undefined terms. We centered our appropriations inquiry in Pebble on
the extent to which the initiative would restrict legislative discretion, explaining: “The
primary question before us, therefore, is whether the initiative narrows the legislature’s
range of freedom to make allocation decisions in a manner sufficient to render the
initiative an appropriation.”61 We then said that the initiative would “leave[] to the
legislature . . . the discretion to determine what amounts of specific toxic pollutants may
or may not be discharged at a mining site.”62 This reasoning suggested that the
legislature retained discretion because it could define “adversely affect” as it preferred.
But the legislative “discretion” to define terms is not the discretion mandated by the
constitution, which vests all appropriation power in the legislature.63 The legislature
does not truly retain control over public assets if the voters may forbid it from using
those assets in a particular manner; such a restriction on the legislature’s allocation
freedom cannot be characterized as “simply amending ‘a series of general legislative
criteria to add more specific ones to guide the [legislature] in its future allocation
60
(...continued)
a different theory because the legislature, through Alaska statutes and regulations, had
already allocated public assets to set net fishers, id. at 110-11, so the proposed
initiative’s ban on set net fishing in that case was also an unconstitutional repeal of an
appropriation. See Alaska Const. Art. XI, § 7 (“The initiative shall not be used to . . .
make or repeal appropriations . . . .” (emphasis added)).
61
215 P.3d at 1075.
62
Id. at 1077.
63
See McAlpine v. Univ. of Alaska, 762 P.2d 81, 88 (Alaska 1988) (“The
reason for prohibiting appropriations by initiative is to ensure that the legislature, and
only the legislature, retains control over the allocation of state assets among competing
needs.” (emphasis in original)).
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decisions.’ ”64 We were therefore wrong in Pebble to conclude that the legislature
retained sufficient “discretion” simply because the initiative contained some undefined
terms.
To follow Pebble to its logical conclusion would be to allow any initiative
regulating public assets to go before the voters so long as it would not wholly usurp the
legislature’s allocation function. But that is not where the delegates intended to draw the
line between permissible regulation and impermissible appropriation. Instead, an
initiative must leave to the legislature ultimate decision-making authority to use specific
public assets for specific purposes. Because 17FSH2 would completely prevent the
legislature from permitting projects that result in the permanent destruction of
anadromous fish habitat, the initiative constitutes an unconstitutional appropriation as
written.
D. The Offending Provisions Of 17FSH2 Can Be Severed, Preserving the
Remainder Of The Initiative To Go Before The Voters.
Although we conclude that 17FSH2 as written is unconstitutional, that is
not the end of the analysis. Rather than simply invalidating the entire initiative by
reversing the superior court’s decision and upholding that of the Lieutenant Governor,
we must evaluate whether the offending provisions can be severed from the initiative.65
64
Pullen v. Ulmer, 923 P.2d 54, 64 (Alaska 1996); see also id. at 64 n.15
(“[W]here the legislature retains a broad range of freedom to make allocation decisions,
an appropriation will not be found. Under the current initiative, in cases of shortage —
which is when the initiative operates — such freedom is not retained.”).
65
See McAlpine, 762 P.2d at 94 (“[W]henever an act of Congress contains
unobjectionable provisions separable from those found to be unconstitutional, it is the
duty of this court to so declare, and to maintain the act in so far as it is valid.” (quoting
Regan v. Time, Inc., 468 U.S. 641, 652 (1984))).
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We have held that impermissible portions of an initiative can be excised, and the
remainder validated, where each of three factors are met:
(1) standing alone, the remainder of the proposed bill can be
given legal effect; (2) deleting the impermissible portion
would not substantially change the spirit of the measure; and
(3) it is evident from the content of the measure and the
circumstances surrounding its proposal that the sponsors and
subscribers would prefer the measure to stand as altered,
rather than to be invalidated in its entirety.[66]
66
Id. at 94-95 (footnotes omitted); see also Alaska Action Ctr., Inc. v.
Municipality of Anchorage, 84 P.3d 989, 995 (Alaska 2004).
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In this case, the offending provisions are proposed AS 16.05.885(e)(3)67 and the third
sentence of proposed AS 16.05.887(a) — from the word “Notwithstanding” to the end
of subsection (a).68 Without these provisions, the initiative no longer contains an explicit
67
Proposed AS 16.05.885(e) is reproduced here, with the offending language
highlighted in bold text:
The commissioner may issue a major permit to an applicant
only if:
(1) the public notice period required under (c) of
this section is complete;
(2) any permit conditions and mitigation measures
under AS 16.05.887 are mandatory and enforceable;
(3) the activity, as authorized by the written
permit determination, will not cause substantial damage
to anadromous fish habitat under AS 16.05.877(b);
(4) the applicant, if required, provides the bond
required by (g) of this section; and
(5) a request for reconsideration of the
commissioner’s final assessment and written determination
under (d) of this section is not timely received under AS
16.05.889.
68
Proposed AS 16.05.887(a) is reproduced here, again with the offending
language highlighted in bold text:
The commissioner shall prevent or minimize significant
adverse effects to anadromous fish habitat. The
commissioner shall require a permittee under AS 16.05.885
to implement the permitted activity in a manner that avoids
significant adverse effects to anadromous fish habitat or, if
significant adverse effects cannot be avoided, to mitigate
significant adverse effects to fish and wildlife including
anadromous fish habitat under (b) of this section.
Notwithstanding (b) of this section, an anadromous fish
(continued...)
-26- 7274
bar to granting permits with specific effects; it would still be within the commissioner’s
discretion to grant such permits where doing so is deemed appropriate, thus preserving
the legislature’s power to make decisions concerning the allocation of state assets.
1. Only the provisions explicitly prohibiting certain permitting
decisions need to be severed.
The State asserts that even without the provisions explicitly barring the
commissioner from granting permits to projects that would cause “substantial damage,”
68
(...continued)
habitat permit may not be granted for an activity that
will:
(1) cause substantial damage to anadromous fish
habitat under AS 16.05.877(b);
(2) fail to ensure the proper protection of fish
and wildlife;
(3) store or dispose of mining waste, including
overburden, waste rock, and tailings in a way that could
result in the release or discharge of sulfuric acid, other
acids, dissolved metals, toxic pollutants, or other
compounds that will adversely affect, directly or
indirectly, anadromous fish habitat, fish, or wildlife
species that depend on anadromous fish habitat;
(4) replace or supplement, in full or in part, a
wild fish population with a hatchery-dependent fish
population;
(5) withdraw water from anadromous fish
habitat in an amount that will adversely affect
anadromous fish habitat, fish, or wildlife species; or
(6) dewater and relocate a stream or river if the
relocation does not provide for fish passage or will
adversely affect anadromous fish habitat, fish, or wildlife
species.
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other provisions of the initiative would still prohibit the same projects. For example, the
State argues that the framework for mitigation conditions in proposed AS 16.05.887(b)69
require that “at a minimum,” the affected habitat be restored and that “of course, the
affected fish habitat cannot be restored when an activity would permanently displace the
habitat.” The State also argues that the “habitat protection standards” of proposed AS
16.05.86770 prohibit ADFG from permitting any project that fails to “maintain” those
69
Proposed AS 16.05.887(b) provides as follows:
When establishing permit conditions for an activity, the
commissioner shall, in order of priority, require a permittee
under AS 16.05.883 [minor permits], AS 16.05.884 [general
permits], or AS 16.05.885 [major permits] to mitigate adverse
effects by taking one or more of the following actions:
(1) limit adverse effects of the activity on
anadromous fish habitat by changing the siting, timing,
procedure, or other manageable qualities of the activity;
(2) if the adverse effects of the activity cannot be
prevented under (1) of this subsection, minimize the adverse
effects of the activity by limiting the degree, magnitude,
duration, or implementation of the activity, including
implementing protective measures or control technologies;
and
(3) if the activity cannot be implemented in a
manner that prevents adverse effects to anadromous fish
habitat under this subsection, restore the affected anadromous
fish habitat.
70
These standards are expressed in proposed AS 16.05.867(b) as follows:
When issuing a permit under AS 16.05.867-16.05.901, the
commissioner shall ensure the proper protection of
anadromous fish habitat by maintaining:
(1) water quality and water temperature necessary
(continued...)
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standards, and that this again acts as a complete bar to granting permits to projects that
would permanently displace fish habitat.
But unlike the offending provisions discussed above, which explicitly
remove certain permitting decisions from the commissioner’s discretion, these remaining
provisions are open to reasonable interpretation. Although they might amount to an
appropriation if we interpreted them in the light most favorable to concluding that they
do, “[w]hen one construction of an initiative would involve serious constitutional
difficulties, that construction should be rejected if an alternative interpretation would
70
(...continued)
to support anadromous fish habitat;
(2) instream flows, the duration of flows, and
natural and seasonal flow regimes;
(3) safe, timely and efficient upstream and
downstream passage of anadromous and native resident fish
species to spawning, rearing, migration, and overwintering
habitat;
(4) habitat-dependent connections between
anadromous fish habitat including surface-groundwater
connections;
(5) stream, river and lake bank and bed stability;
(6) aquatic habitat diversity, productivity, stability
and function;
(7) riparian areas that support adjacent fish and
wildlife habitat; and
(8) any additional criteria, consistent with the
requirements of AS 16.05.867-AS 16.05.901, adopted by the
commissioner by regulation.
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render the initiative constitutionally permissible.”71 Interpreting the initiative broadly so
as to preserve it if possible,72 it would not be unreasonable to conclude that even a project
that permanently displaces habitat could “limit adverse affects of the activity on
anadromous fish habitat by changing the siting, timing, procedure, or other manageable
qualities of the activity,” or “minimize the adverse effects of the activity by limiting the
degree, magnitude, duration, or implementation of the activity, including implementing
protective measures or control technologies.”73 And the habitat protection standards can
71
Pebble Ltd. Partnership v. Parnell, 215 P.3d 1064, 1076 (Alaska 2009)
(quoting Boucher v. Engstrom, 528 P.2d 456, 462 (Alaska 1974), overruled on other
grounds by McAlpine, 762 P.2d at 85).
72
See Hughes v. Treadwell, 341 P.3d 1121, 1125 (citing Pebble, 215 P.3d at
1073).
73
For example, a proposed mine that would need to permanently displace
some fish habitat to store mine waste or tailings might nonetheless be able to “limit” or
“minimize” the adverse effects of the project by constructing the dump site in a manner
or location that would store waste more compactly in a smaller area — thus displacing
less habitat; by restricting the amount of construction- and mining-related activity that
takes place near fish habitat that will not ultimately be displaced; or by taking any
number of other measures that the permit applicant or the commissioner might propose.
The partial dissent concludes that the mitigation requirements would
amount to an appropriation. It does so because it reads proposed AS 16.05.887(b), in
light of the “if” statements that introduce subsections (b)(2) and (b)(3), as “requiring the
commissioner to require permittees to restore affected habitat” where adverse effects
cannot be avoided, thus forbidding the commissioner “from issuing a permit to a
prospective permittee who wishes to use anadromous fish habitat for an activity that will
damage the habitat to the point it cannot be restored.” Partial dissent at 6-7. But the
mitigation requirements of proposed AS 16.05.887(b) already apply only “if significant
adverse effects cannot be avoided.” See 17FSH2 § 7 (proposed AS 16.05.887(a)). Thus,
under the interpretation adopted by the partial dissent, any permitted project that is
subject to the mitigation requirement would automatically be required to “restore” the
affected fish habitat under subsection (b)(3), essentially reading subsections (b)(1) and
(continued...)
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reasonably be interpreted as a collective set of broad goals for the commissioner to strive
for as a general matter, as opposed to discrete requirements to be strictly and individually
enforced in every permitting decision.74 But at this point, it is not necessary for us to
analyze and interpret these provisions in detail, beyond noting that they are open to a
range of reasonable and constitutionally permissible interpretations.
We also note that proposed AS 16.05.887(c) could be read in a way that
would amount to an impermissible appropriation. This provision states:
73
(...continued)
(b)(2) out of the initiative entirely. For this reason, the “if” statements must instead be
read so that subsections (b)(2) and (b)(3) apply if mitigation efforts under the preceding
subsections could not prevent some adverse effects, rather than if such efforts would not
completely prevent adverse effects. Interpreted thus, the requirement to “restore” fish
habitat would only apply if it is not possible to either “limit” or “minimize” adverse
effects.
74
The partial dissent disagrees, interpreting the habitat protection standards
as requiring the commissioner to “preserve” various aspects of every individual fish
habitat subject to a permit application, and asking, “how could the commissioner permit
a project that will destroy anadromous fish habitat and still ‘preserve’ that habitat
according to the habitat protection standards?” Partial dissent at 4. The answer is that
the habitat protection standards in 17FSH2 do not require the commissioner to
“maintain” or “preserve” every listed aspect of the specific fish habitat in question, but
rather to “maintain” the listed aspects of anadromous fish habitat in Alaska as a whole.
And although there would be some tension between the commissioner’s discretion to
permit use of state waters and the commissioner’s duty to maintain Alaska’s anadromous
fish habitat, this same tension already exists: Article VIII, section 2 of the Alaska
Constitution provides that “[t]he legislature shall provide for the utilization, development,
and conservation of all natural resources belonging to the State, including land and
waters, for the maximum benefit of its people.” (Emphasis added.) Cf. Herscher v. State,
Dep’t of Commerce, 568 P.2d 996, 1005 (Alaska 1977) (explaining that “fish and game
resources are permitted to be harvested, but at the same time must be conserved to avoid
depletion and extinction” and noting “the balance the Board of Fish and Game is
attempting to reach in harmonizing reasonable harvesting of the game resources and their
conservation”).
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Permit conditions and mitigation measures under this section
may not offset the activity’s adverse effects by restoring,
establishing, enhancing, or preserving another water body,
other portions of the same water body, or land.
Interpreted in isolation, this provision could be read as prohibiting the legislature from
using public lands and waters for the specific purpose of mitigating the adverse effects
of other projects. If interpreted this way, proposed AS 16.05.887(c) would be an
appropriation for the same reason as proposed AS 16.05.885(e)(3) and 16.05.887(a), in
that it would prevent the legislature from making certain decisions regarding the
allocation of state resources. But this provision can also be read as a corollary to the
mitigation requirement of proposed AS 16.05.887(b). Read together, proposed
AS 16.05.887(c) would essentially mean that off-site mitigation measures do not satisfy
this mitigation requirement, such that a permittee would have to take at least some efforts
towards on-site mitigation of the activity’s adverse effects. But it would not prohibit the
legislature or the commissioner from independently allocating public lands or waters
towards mitigation of the adverse environmental effects of a permitted activity. As with
the habitat protection standards and the mitigation requirement itself, discussed above,
it is not necessary for purposes of this case to determine exactly how to interpret
proposed AS 16.05.887(c), beyond noting that it, too, is open to a range of reasonable
and constitutionally permissible interpretations.75
Accordingly, the only provisions that need to be severed to save the
initiative are those that explicitly bar certain permitting decisions: proposed AS
16.05.885(e)(3) and the third sentence of proposed AS 16.05.887(a).
75
If 17FSH2 ultimately passes, there may well be future cases in which these
provisions could be subject to a successful as-applied constitutional challenge. But we
conclude that they are not facially unconstitutional.
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2. Severing the offending provisions would be an appropriate
remedy to save the initiative.
In order for severing the offending provisions to be appropriate, we must
find that “the remainder of the proposed bill can be given legal effect,” that “deleting the
impermissible portion would not substantially change the spirit of the measure,” and that
“it is evident from the content of the measure and the circumstances surrounding its
proposal that the sponsors and subscribers would prefer the measure to stand as altered,
rather than to be invalidated in its entirety.”76 As guidance to when severing the
appropriating provisions of an initiative is appropriate, our decisions in McAlpine and
Alaska Action Center, Inc. v. Municipality of Anchorage are instructive.
In McAlpine, the initiative in question would have established a community
college system separate from the University of Alaska.77 The initiative would also have
required the University to transfer to the community colleges “such real and personal
property as is necessary to the independent operation and maintenance of the Community
College System.”78 More specifically, however, the initiative provided that the amount
of property transferred should “be commensurate with that occupied and operated by the
Community Colleges on November 1, 1986.”79 Interpreting the term “commensurate”
to mean “equal,” we concluded that the initiative would impermissibly appropriate state
assets because it would require the transfer of a specific amount of property, meaning
“[t]he only discretion the University administrators would have is to designate the
76
McAlpine, 762 P.2d at 94-95; see also Alaska Action Ctr., Inc. v.
Municipality of Anchorage, 84 P.3d 989, 995 (Alaska 2004).
77
762 P.2d at 83.
78
Id.
79
Id.
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precise articles or parcels to be transferred.”80 However, absent the provision requiring
the property transferred to be commensurate with a specific amount, we reasoned that
the initiative would “leave[] the legislature with all the discretion it needs with respect
to appropriations for community colleges.”81 In other words, severing the offending
provision left an enforceable initiative that would establish a community college system
without infringing on the legislature’s authority over allocation decisions.
By contrast, Alaska Action Center involved an initiative that would have
designated several hundred acres of land in eastern lower Girdwood as a park, bar any
use of the park for a golf course or golf-related uses, and require that any sales or leases
of 61 acres of adjacent land be for fair market value.82 We concluded that the park
designation, like the impermissible provision in McAlpine, would “encroach[] on the
legislative branch’s exclusive ‘control over the allocation of state assets among
competing needs.’ ”83 But unlike McAlpine, removing the offending provision would
leave a substantially different initiative. We reasoned that “[t]he sponsors of the
initiative wanted a golf-free park in the lower Girdwood valley, but with the park
designation severed, the measure would eliminate any golf use while leaving open the
full range of options for other development of the land.”84 And while it might be
possible to give legal effect to the fair-market-value requirement, we reasoned that
80
Id. at 89-91.
81
Id. at 91.
82
Alaska Action Ctr., Inc. v. Municipality of Anchorage, 84 P.3d 989, 991
(Alaska 2004).
83
Id. at 994 (quoting Pullen v. Ulmer, 923 P.2d 54, 62 (Alaska 1996)).
84
Id. at 995.
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“[r]educed to prescribing the procedure for selling or leasing just sixty-one acres, the
initiative [as severed] bears little resemblance to the original proposal.”85
With these examples in mind, we turn to the initiative at hand. As indicated
above, preventing 17FSH2 from effecting an unconstitutional appropriation would only
require severing the two provisions that explicitly bar the commissioner from making
certain permitting decisions. Absent these provisions, 17FSH2 still contains a number
of substantive provisions. Section 2 (proposed AS 16.05.867) sets out various habitat
protection standards and authorizes the commissioner to adopt regulations consistent
with those standards and with the initiative as a whole. Section 3 (repealing and
reenacting AS 16.05.871) replaces the current notice-and-approval system for fish habitat
protection with a permitting system. It also replaces the current scheme by which the
commissioner specifies which water bodies are protected fish habitat with a presumption
that most naturally occurring water bodies are protected fish habitat, subject to site-
specific exceptions issued after informed review by ADFG. Section 4 (proposed
AS 16.05.875) sets out the application procedure for obtaining a permit and the
procedure for the commissioner to make certain factual determinations relevant to the
permitting decision. Section 5 (proposed AS 16.05.877) defines certain terms and
provides guidelines for the commissioner’s factual determinations. Section 6 (proposed
AS 16.05.883 through .885, as severed) describes the permitting scheme in more detail,
distinguishing between minor permits and major permits, and between specific and
general permits for minor activities, and requires that applicants for major permits file
a performance bond in an amount sufficient to ensure compliance with the permit terms
and any mitigation measures imposed by the commissioner as a condition of granting the
85
Id.
-35- 7274
permit. Section 6 also contains various provisions relating to public notice of permitting
decisions and the factual findings underlying them.
As severed, section 7 (proposed AS 16.05.887) directs the commissioner
to require permittees to minimize adverse effects of their activity, but would leave the
commissioner with the discretion to determine what mitigation measures would be
appropriate in any particular case. Section 8 (proposed AS 16.05.889) provides
procedures for interested parties to seek rehearing of permitting decisions. Section 9
(proposed AS 16.05.894) invests the commissioner with the authority to prosecute
violations of the regulatory scheme by issuing violation notices, order that the violation
be stopped, or order the prevention or mitigation of the violation’s adverse effects.
Sections 10 and 11 revise a penalty provision in the current law, AS 16.05.901, to reflect
the new regulatory scheme. Section 11 also authorizes the commissioner to impose, after
notice and hearing, a civil penalty not to exceed $10,000 on persons who violate or
permit a violation of the regulatory scheme.
Viewed as a whole, it is apparent that even absent the specific bars to
granting permits in certain situations, 17FSH2 would make Alaska’s anadromous fish
habitat protection statutes significantly more restrictive by enacting a comprehensive
regulatory framework and permitting scheme. This is made clear by considering the
necessary procedural steps to gain approval for a hypothetical large mining project that
would permanently displace some river, lake, or stream.
Under current law, the person or entity proposing the project must first
check whether the affected area has been specified by the commissioner as “important
for the spawning, rearing, or migration of anadromous fish.”86 If the area has not been
specified as such, then no notice or approval is required. If the project would affect a
86
AS 16.05.871(a).
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specified river, lake, or stream, the project owners must notify the commissioner of their
proposed activity.87 Upon receiving notice, the commissioner “shall approve” the
project, “unless the commissioner finds the plans and specifications insufficient for the
proper protection of fish and game.”88 This standard is not defined or explained in the
current statute. If a plan is rejected based on a finding that it is insufficient for the
protection of fish and game, the commissioner must notify the person or agency behind
the project of that finding,89 but there is no requirement that the commissioner’s
reasoning for granting or denying approval be made public.
By contrast, under 17FSH2, most water bodies in the state are presumed to
be anadromous fish habitat and subject to the habitat protection scheme.90 If the project
owners believe an exemption is warranted because the land or water body in question
does not affect anadromous fish, they may seek an exemption through a site-specific
review; the commissioner may determine that a water body is not anadromous fish
habitat, if such a determination is “supported by the commissioner’s written finding and
verifiable documentation.”91 If no exemption is granted, the applicant must not only
notify the commissioner, but also must submit a permit application that includes “all
information, plans and specifications necessary to assess the proposed activity’s potential
adverse effects on anadromous fish habitat.”92 This places on the project owners the
87
AS 16.05.871(b).
88
AS 16.05.871(d).
89
Id.
90
17FSH2 § 3 (proposed AS 16.05.871(c) & (f)).
91
17FSH2 § 3 (proposed AS 16.05.871(e)).
92
17FSH2 § 4 (proposed AS 16.05.875(a)).
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burden of producing relevant information, where the current law places the burden on
the commissioner to gather that information.
The commissioner must then determine “whether the proposed activity has
the potential to cause significant adverse effects on anadromous fish habitat.”93 If the
mining project indeed requires permanently displacing a stream, the commissioner would
necessarily find such potential and therefore treat the application as one for a major
permit.94 Accordingly, the commissioner would need to prepare a draft permit
assessment describing the nature of potential adverse effects, possible alternatives or
modifications that would minimize such effects, any permit conditions and mitigation
measures that would be required, and the amount of the performance bond necessary to
ensure compliance with those conditions.95 The draft assessment would also require the
commissioner to make a determination of whether the proposed activity would “cause
substantial damage to anadromous fish habitat.”96 Again, if the project involves
permanently displacing fish habitat, this finding necessarily follows. The draft
assessment would then be made public and would be subject to a public comment period
of at least 30 days.97 After the public comment period, the commissioner would issue a
final assessment including “the reasons for the decision and the basis for concluding that
the requirements of [the habitat protection statute] are met.”98 This final assessment
93
17FSH2 § 4 (proposed AS 16.05.875(b)).
94
See 17FSH2 § 5 (proposed AS 16.05.877(b)).
95
17FSH2 § 6 (proposed AS 16.05.885(a)).
96
17FSH2 § 6 (proposed AS 16.05.885(a)(6)(B)).
97
17FSH2 § 6 (proposed AS 16.05.885(c)).
98
17FSH2 § 6 (proposed AS 16.05.885(d)).
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would also be made public, with specific notice sent to all persons who made comments
relating to the application.99 Over the next 30 days, any interested party might seek
reconsideration of the final assessment.100 Only after any request for reconsideration is
denied, or if no timely request is received, would the commissioner actually issue the
relevant permit, and even then, only if the required performance bond has been
provided.101
These added procedural steps and increased public scrutiny of the
permitting process may well have the effect of reducing the number of permits that are
given for projects that would cause “substantial damage,” such as those that would
permanently displace fish habitat. But crucially, without the offending provisions
identified above, the commissioner would still have discretion to grant such permits
where doing so is believed to be appropriate and in the public interest.
There can be little doubt that this proposed comprehensive regulatory
framework can be given legal effect, even in the absence of the severed provisions. And
unlike Alaska Action Center, where severing the park designation would fundamentally
alter the effect of the few remaining substantive provisions, severing the offending
provisions here would not substantially change the spirit of 17FSH2. The effect of
severing the bar on certain permits might be to blunt somewhat the figurative teeth of the
initiative, allowing the commissioner to permit certain projects that the Sponsors would
perhaps prefer to see blocked, but the remainder of the initiative would nonetheless be
a substantial step in the same direction. For this reason, it seems likely that both the
Sponsors and the subscribers of 17FSH2 would prefer the measure to stand as altered,
99
Id.
100
17FSH2 § 8 (proposed AS 16.05.889).
101
17FSH2 § 6 (proposed AS 16.05.885(e)-(f)).
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rather than to be invalidated in its entirety.102 The appropriate remedy to the
impermissible appropriation that would be effected by 17FSH2 as written is therefore to
sever the two offending provisions and certify the remainder for the ballot.
V. CONCLUSION
As written, 17FSH2 constitutes an unconstitutional appropriation, but by
severing the offending provisions the constitutional problem can be remedied without
substantially changing the spirit of the measure. The remainder of the initiative would
not impermissibly infringe on the legislature’s authority over appropriations or that
delegated to ADFG, but would still establish a comprehensive regulatory framework for
activities that potentially harm anadromous fish habitat. We therefore REVERSE the
judgment of the superior court and REMAND for the superior court to immediately
direct the Lieutenant Governor to sever proposed AS 16.05.885(e)(3) and the third
sentence of proposed AS 16.05.887(a) and to place the remainder of the initiative on the
ballot.
102
We also note that the initiative contains an express severability clause in
Section 14, which provides as follows:
The provisions of this Act are independent and severable. If
any provision of this Act is found to be invalid or
unconstitutional, the remainder of this Act shall not be
affected and shall be given effect to the fullest extent
possible.
This is strong, if not conclusive, evidence that the proponents of 17FSH2 would prefer
to see the initiative enacted as severed rather than invalidated.
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WINFREE, Justice, dissenting in part.
I respectfully dissent only regarding the court’s severance analysis. The
court correctly concludes that an initiative may not prevent the legislature from allocating
specific public assets for specific purposes.1 But the court then fails to properly apply
its analysis to 17FSH2’s habitat protection standards and mitigation requirements and
thus concludes that those requirements would not effect an appropriation.2 I disagree;
I conclude that, as written, any reasonable interpretation of the habitat protection
standards and mitigation requirements would prevent the legislature from allocating
anadromous fish habitat to projects that would substantially damage that habitat. These
provisions must be severed, at least in part, to avoid creating the very appropriation that
the court holds is unconstitutional.
I begin my analysis at the point where the court and I agree. The court
explains that “where a project like a mine or hydroelectric dam would permanently, and
perhaps irreversibly, displace fish habitat, there is no reasonable interpretation under
which that habitat would not suffer ‘substantial damage’ as the initiative defines it.”3
The court explains further that: “If the habitat has been permanently displaced, it cannot
be ‘likely’ for that habitat to be restored within a ‘reasonable period,’ because it never
will.”4 The court thus concludes that 17FSH2’s provisions preventing the Department
of Fish and Game (ADFG) from permitting a project that would substantially damage
1
Op. at 14.
2
Op. at 28-31.
3
Op. at 15-16.
4
Op. at 16.
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anadromous fish habitat would, if enacted, effect an unconstitutional appropriation.5 I
agree in full with this analysis.
Where the court and I diverge is with other 17FSH2 provisions that, while
not explicitly prohibiting the legislature from allocating anadromous fish habitat, would
have the same practical effect. Specifically, both the habitat protection standards in
proposed AS 16.05.867 and the permit conditions and mitigation requirements in
proposed AS 16.05.887 effectively prevent ADFG from permitting any activity that
would completely destroy that habitat. These provisions must therefore also be severed
before 17FSH2 can be presented to the voters.
My disagreement essentially is with the court’s statutory interpretation; the
court reaches the opposite conclusion by reasoning that “unlike the offending
provisions . . ., which explicitly remove certain permitting decisions from the
commissioner’s discretion, these remaining provisions are open to reasonable
interpretation.”6 To this I respond: How? It is sophistry simply to “not[e] that [these
provisions] are open to a range of reasonable and constitutionally permissible
interpretations.”7 A statute can hold only one meaning, and though we have stated that
we “construe voter initiatives broadly so as to preserve them whenever possible,”8 we
must actually interpret 17FSH2’s challenged provisions before we can pass on its
5
Op. at 15-17.
6
Op. at 28-29.
7
Op. at 31.
8
Pullen v. Ulmer, 923 P.2d 54, 58 (Alaska 1996) (quoting City of Fairbanks
v. Fairbanks Convention & Visitors Bureau, 818 P.2d 1153, 1155 (Alaska 1991)).
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constitutionality.9 Actually interpreting those provisions, I see no reasonable
interpretation of the initiative’s habitat protection standards and mitigation requirements
that would not effect an appropriation.
The court errs first in its description of the habitat protection standards. The
court concludes that these standards “can reasonably be interpreted as a collective set of
broad goals for the commissioner to strive for as a general matter, as opposed to discrete
requirements to be strictly and individually enforced in every permitting decision.”10 But
nothing in the initiative’s text suggests such an interpretation.11 Proposed
AS 16.05.867(b) reads: “When issuing a permit . . . the commissioner shall ensure the
proper protection of anadromous fish habitat by maintaining . . . [water quality, water
flow, fish passage, habitat connections, water bed stability, riparian areas, and aquatic
habitat diversity, productivity, stability, and function.]” (Emphases added.) “Shall” is
9
The court’s conclusion that we do not have to interpret 17FSH2 to pass on
its constitutionality is as novel as it is wrong. How can we decide if an initiative would
“make or repeal appropriations” if we do not know what the statute means? See Alaska
Const. art. XI, § 7. The court’s response is that the habitat protection standards and
mitigation requirements are not “facially unconstitutional,” suggesting that these
provisions are permissible so long as they can be applied in a way that would not effect
an appropriation. But the court does not evaluate the permitting restrictions — which
it does hold are unconstitutional appropriations — under our facial challenge framework,
nor does it explain why this framework is suitable for the appropriations context. We
have never used our facial challenge framework in an appropriations case before, and use
of it here seems to only “obscure and distract” from our focus on the two core objectives,
in contrast to the court’s painstaking and commendable efforts to refocus our analysis
earlier in its opinion.
10
Op. at 29-30.
11
See City of Kenai v. Friends of Recreation Ctr., Inc., 129 P.3d 452, 458-59
(Alaska 2006) (“Interpretation of a statute begins with its text.”).
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a mandatory term in legislative drafting, meaning “is required to.”12 “Maintain” has a
similarly fixed meaning, to “preserve.”13 Combining these terms, proposed
AS 16.05.867(b) means “the commissioner [is required to] ensure the proper protection
of anadromous fish habitat by [preserving]” various aspects of the habitat. But
destruction and preservation are mutually exclusive in this context; how can the
commissioner permit a project that would destroy anadromous fish habitat and still
“preserve” that habitat according to the habitat protection standards?
The court’s answer is that the commissioner does not actually have to
preserve the permitted habitat. Under the court’s view, the commissioner satisfies
proposed AS 16.05.867(b) by maintaining “the listed aspects of anadromous fish habitat
in Alaska as a whole.”14 This interpretation stretches the habitat protection standards’
language past the breaking point. Proposed AS 16.05.867(b) explicitly tethers the habitat
protection standards to permitting decisions;15 what relevance does “water quality and
water temperature” in Ketchikan have to a permitting decision in Bristol Bay? And if
12
Petitioners for Incorporation of City & Borough of Yakutat v. Local
Boundary Comm’n, 900 P.2d 721, 724 (Alaska 1995) (“Unless the context otherwise
indicates, the use of the word ‘shall’ denotes a mandatory intent.” (quoting Fowler v.
City of Anchorage, 583 P.2d 817, 820 (Alaska 1978))); see also Shall, BLACK’S LAW
DICTIONARY (10th ed. 2014) (“Has a duty to; more broadly, is required to . . . . This is
the mandatory sense that drafters typically intend and that courts typically uphold.”);
Shall, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (2002) (“[U]sed in laws,
regulations, or directives to express what is mandatory.”).
13
See Maintain, WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (2002)
(“[T]o keep in a state of repair, efficiency, or validity: preserve from failure or
decline.”).
14
Op. at 30 n.74.
15
Proposed AS 16.05.867(b) begins: “When issuing a permit under
16.05.867-16.05.901, the commissioner shall . . . .”
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the commissioner can consider habitat quality state-wide when issuing a permit for a
specific location, does that effectively mean the commissioner does not even have to
consider the habitat protection standards? The court’s interpretation prevents proposed
AS 16.05.876(b) from having any meaning whatsoever. This is surely inconsistent with
the remainder of the proposed initiative; the initiative was drafted specifically to prevent
the destruction of anadromous fish habitat in the area of a permitted project.16
The permit conditions and mitigation requirements suffer the same defect.
Proposed AS 16.05.887(a) provides: “The commissioner shall require a permittee . . .
to implement the permitted activity in a manner that avoids significant adverse effects
to anadromous fish habitat or, if significant adverse effects cannot be avoided, to mitigate
significant adverse effects to fish and wildlife including anadromous fish habitat under
(b) of this section.” (Emphases added.) This plainly mandatory language requires the
commissioner to issue permits in a way that either “avoids” significant adverse effects
to anadromous fish habitat, or, “if significant adverse effects cannot be avoided,” that
mitigates those effects according to proposed AS 16.05.887(b). Subsection (b) in turn
specifies that “the commissioner shall, in order of priority, require a permittee . . . to
mitigate adverse effects by taking one or more of the following actions.” (Emphases
added.) These actions are:
(1) limit adverse effects of the activity on anadromous fish
habitat by changing the siting, timing, procedure, or
other manageable qualities of the activity;
(2) if the adverse effects of the activity cannot be prevented under
(1) of this subsection, minimize the adverse effects of the
activity by limiting the degree, magnitude, duration, or
16
The court acknowledges this point when discussing the offsite mitigation
measures in proposed AS 16.05.887(c).
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implementation of the activity, including implementing
protective measures or control technologies; and
(3) if the activity cannot be implemented in a manner that
prevents adverse effects to anadromous fish habitat
under this subsection, restore the affected anadromous
fish habitat. (Emphases added.)
The combination of the mandatory language in proposed AS 16.05.887(b) and the “if”
language in subsections (b)(2) and (b)(3) creates a tiered mitigation system in which the
commissioner’s first duty is to “limit” adverse effects by “changing the siting, timing,
procedure, or other manageable qualities” of the permitted activity; the commissioner’s
second duty, if limiting alone will not prevent adverse effects, is to “minimize” adverse
effects by “limiting the degree, magnitude, duration, or implementation” of the permitted
activity; and the commissioner’s third duty, if limiting and minimizing both will not
prevent adverse effects, is to “restore” the affected habitat. Subsection (b) as a whole
makes sense only if interpreted in this way; it gives meaning to the language “in order
of priority,” “one or more,” “and,” “if the adverse effects . . . cannot be prevented under
(1),” and “if the activity cannot be implemented in a manner that prevents adverse effects
. . . under this subsection.” 17FSH2 thus requires the commissioner to issue permits
requiring permittees to “restore” habitat when the adverse effects cannot be avoided or
prevented by limitation or minimization.
This restoration requirement — requiring the commissioner to require
permittees to restore affected habitat — is indistinguishable from 17FSH2’s ban on
permits for activities that cause substantial damage, which the court concludes would
effect an appropriation. In either case the commissioner is forbidden from issuing a
permit to a prospective permittee who wishes to use anadromous fish habitat for an
activity that will damage that habitat to the point it cannot be restored. The mitigation
requirements may reach this result less directly — by conditioning permits on restoration
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requirements that projects could never meet, rather than by flatly prohibiting their
issuance — but the effect is the same: the legislature cannot allocate anadromous fish
habitat to projects that would destroy that habitat.17
The court’s response to my analysis — that the “requirement to ‘restore’
[anadromous] fish habitat would . . . apply [only] if it is not possible to either ‘limit’ or
‘minimize’ adverse effects”18 — misses the point of the court’s decision. The court
already has held that the restoration requirement in 17FSH2’s substantial damage ban
effects an appropriation.19 Regardless whether proposed AS 16.05.887(b)(3) applies
when some adverse effects cannot be prevented by subsections (b)(1) and (b)(2) — as
the court concludes — or whether proposed (b)(3) applies when all adverse effects
cannot be prevented by subsections (b)(1) and (b)(2) — as I conclude — the point is that
it applies. As long as the restoration requirement can apply to a project that would
permanently destroy anadromous fish habitat, it effects an appropriation.
My severance analysis therefore includes proposed AS 16.05.867 and
proposed AS 16.05.887. Both provisions contain the same basic defect: their mandatory
language eliminates any possible discretion to permit projects that would destroy
anadromous fish habitat. There is no principled way of altering the habitat protection
standards to avoid this interpretation, so proposed AS 16.05.867(b) must be invalidated
in its entirety. But the permit conditions and mitigation requirements may be treated
more circumspectly. If the “if” statements preceding proposed (b)(2) and (b)(3) are
17
17FSH2 provides no mechanism for waiving this requirement; proposed
AS 16.05.885(e)(2) provides that the commissioner may issue a permit only if “any
permit conditions and mitigation measures under AS 16.05.887 are mandatory and
enforceable.” (Emphasis added.)
18
Op. at 29 n.73.
19
Op. at 15-17.
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removed, restoration is no longer mandatory; the commissioner will instead be required
to require permittees to limit adverse effects, minimize adverse effects, and/or restore the
affected habitat.20 This leaves the commissioner the option to impose — or not impose
— a restoration requirement as the commissioner sees fit, thus retaining ultimate
discretion in the legislature as our Constitution requires, while maintaining the spirit of
the measure as the court describes.21
I therefore would remand with the additional instruction that the Lieutenant
Governor sever proposed AS 16.05.867(b) and the “if” statements in proposed
AS 16.05.887(b)(2) and (3). I respectfully dissent to this extent.
20
Severed proposed AS 16.05.887(b) would provide:
When establishing permit conditions for an activity, the
commissioner shall, in order of priority, require a permittee
under AS 16.05.883, AS 16.05.884, or AS 16.05.885 to
mitigate adverse effects by taking one or more of the
following actions:
(1) limit adverse effects of the activity on anadromous fish
habitat by changing the siting, timing, procedure, or
other manageable qualities of the activity;
(2) if the adverse effects of the activity cannot be
prevented under (1) of this subsection, minimize the
adverse effects of the activity by limiting the degree,
magnitude, duration, or implementation of the activity,
including implementing protective measures or control
technologies; and
(3) if the activity cannot be implemented in a manner that
prevents adverse effects to anadromous fish habitat
under this subsection, restore the affected anadromous
fish habitat.
Such language is still suggestive of a tiered mitigation system, but by its plain language
would not require restoration in all cases where the permitted activity adversely affected
the anadromous fish habitat and adverse effects could not be prevented by other methods.
21
Op. at 39.
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