Mallott v. Stand for Salmon , 431 P.3d 159 ( 2018 )


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    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
    -2-                                        7274
    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 “17FHS2.” 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...)
    -3-                                        7274
    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.
    -4-                                       7274
    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.
    -5-                                     7274
    (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.
    -6-                                   7274
    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,
    -7-                                         7274
    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.
    -8­                                        7274
    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
    ).
    -9-	                                     7274
    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).
    -10-                                      7274
    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.”).
    -11-                                       7274
    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
    ).
    -12­                                      7274
    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).
    -13­                                      7274
    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.”).
    -14-                                         
    7274 Barb. 17FSH
    2 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
    -15-	                                       7274
    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
    ).
    -16-                                      7274
    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. -17- 7274
    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.
    -18­                                     7274
    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
    .
    -19­                                       7274
    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. -20­ 7274
    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.”).
    -21-                                        7274
    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...)
    -22-                                        7274
    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)).
    -23-                                      7274
    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))).
    -24-	                                      7274
    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).
    -25-                                 7274
    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.
    -27-	                                     7274
    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...)
    -28-	                                     7274
    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.
    -29-	                                    7274
    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 46. 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...)
    -30-                                       7274
    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 can the commissioner permit
    a project that would destroy anadromous fish habitat and still ‘preserve’ that habitat
    according to the habitat protection standards?” Partial dissent at 44. 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”).
    -31-                                       7274
    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.
    -32-                                      7274
    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.
    -33-	                                      7274
    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.
    -34-                                       7274
    “[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).
    -36-                                      7274
    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)).
    -37­                                      7274
    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)).
    -38­                                      7274
    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)).
    -39-                                      7274
    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.
    -40-                                    7274
    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 27-31.
    3
    Op. at 15.
    4
    Op. at 15-16.
    -41­                                       7274
    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 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)).
    -42-                                      7274
    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 30-31.
    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.”).
    -43-                                        7274
    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 31 n.74.
    15
    Proposed AS 16.05.867(b) begins: “When issuing a permit under
    16.05.867-16.05.901, the commissioner shall . . . .”
    -44­                                     7274
    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).
    -45-	                                        7274
    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
    46	 	                                    7274
    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 31 n.73.
    19
    Op. at 15-17.
    47                                        7274
    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.
    48	 	                                     7274