Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Lieutenant Governor of the State of Alaska v. Alaska Fisheries Conservation Alliance (12/31/2015) sp-7073

Lieutenant Governor of the State of Alaska v. Alaska Fisheries Conservation Alliance (12/31/2015) sp-7073, 363 P3d 105

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                        

         corrections@akcourts.us.  



                    THE SUPREME COURT OF THE STATE OF ALASKA  



                                                             

LIEUTENANT GOVERNOR OF THE     )  

STATE OF ALASKA,                                            )    Supreme Court No. S-15662  

                                                            )  

                            Appellant,                      )    Superior Court No.  3AN-14-04558 CI  

                                                            )  

         v.                                                 )    O P I N I O N  

                                                            )  

ALASKA FISHERIES                                            )    No. 7073 - December 31, 2015  

CONSERVATION ALLIANCE, INC.,                                )
  

                                                            )
  

                            Appellee.                       )
  

                                                            )
  



                   Appeal from the Superior Court of the State of Alaska, Third  

                               

                   Judicial District, Anchorage, Catherine M. Easter, Judge.  



                   Appearances: Joanne M. Grace and Elizabeth M. Bakalar,  

                   Assistant  Attorneys  General,  Anchorage,  and  Craig  W.  

                                                                                 

                   Richards, Attorney General, Juneau, for Appellant.  Matthew  

                                                                       

                   Singer, Holland & Knight LLP, Anchorage, Susan Orlansky,  

                                                                

                   Reeves Amodio LLC, Anchorage, and Jeffrey M. Feldman,  

                   Summit  Law  Group,  Seattle,  Washington  for  Appellee.  

                   William D. Falsey, Sedor Wendlandt Evans & Filippi, LLC,  

                                                                                     

                   Anchorage, for Amicus Curiae Resources for All Alaskans,  

                   Inc.  



                   Before:  Stowers,  Chief  Justice,  Winfree,  Maassen,  and  

                   Bolger, Justices. [Fabe, Justice, not participating.]  



                   BOLGER, Justice.  


----------------------- Page 2-----------------------

I.         INTRODUCTION  



                     The Lieutenant Governor declined to certify a proposed ballot initiative that  



would  ban  commercial  set  net  fishing  in  nonsubsistence  areas,  reasoning  that  the  



initiative  was  a  constitutionally  prohibited  appropriation  of  public  assets.    But  the  



                        

superior court approved the initiative, concluding that set netters were not a distinct  



                     

commercial  user group and that the legislature and Board of Fisheries would retain  



                                                                                              

discretion to allocate the salmon stock to other commercial fisheries.  In this appeal, we  



                                                                                       

conclude that set netters are a distinct commercial user group that deserves recognition  



                                                                               

in the context of the constitutional prohibition on appropriations.  We therefore reverse  



                     

the superior court's judgment because this proposed ballot initiative would completely  



                                                                                                           

appropriate salmon away from set netters and prohibit the legislature from allocating any  



salmon to that user group.  



                         

II.        FACTS AND PROCEEDINGS  



          A.         Facts  



                     The   directors   of   Alaska   Fisheries   Conservation   Alliance,   Inc.   (the  



                                                         

sponsors), a nonprofit organization with the stated goal of "protect[ing] fish species that  



                                                                      

are  threatened  by  over-fishing,  bycatch[,]  or  other  dangers,"  sponsored  a  proposed  



                                            

statewide  ballot  initiative,  13PCAF,  to  prohibit  the  use  of  commercial  set  nets  in  

                                  1  In its statement of findings and intent, 13PCAF declares that "set  

nonsubsistence areas.                                                                 



net fishing is an antiquated method of harvesting fish that indiscriminately kills or injures  

                                                                                         



large  numbers  of  non-target  species,"  making  the  practice  "wasteful  of  fisheries  

                               



           1         "A nonsubsistence area is an area or community where dependence upon       



subsistence is not a principal characteristic of the economy, culture, and way of life of   

the area or community."  AS 16.05.258(c); see also AS 16.05.258(c)(1)-(13) (listing the  

specific  characteristics  the  Boards  of  Fisheries  and   Game  must  consider  when  

                                                                                          

designating subsistence and nonsubsistence areas).  



                                                                  -2-                                                           7073
  


----------------------- Page 3-----------------------

resources."    To  address  this  stated  concern,  the  executing  portion  of  the  proposed  



initiative provides:  



                  Article   6   of   AS   16.05   is   amended   by   adding   a   new  

                   section . . . to read:  



                   16.05.781.         Set     gillnetting      in    nonsubsistence           areas  

                   prohibited.  



                            (a)      Except for customary and traditional use or for  

                                                     

                  personal use fishing, a person may not use a shore gill net or  

                   set net to take fish in any nonsubsistence area.  This section  

                                                                                      

                   shall control over any other provision to the contrary.  



                            (b)      For purposes of this  section,  "customary and  

                                                              

                  traditional"  has  the  meaning  used  in  AS  16.05.940(7),  

                   "personal       use    fishing"      has    the    meaning       as    used     in  

                                         

                  AS  16.05.940(26),  "shore  gill  net"  and  "set  net"  have  the  

                  meaning  as  used  in  AS  38.05.082[,]  and  "nonsubsistence  

                   area" has the meaning as used in AS 16.05.258(c).  



                            (c)      Nothing in this section shall affect the use of  

                   shore gill nets and set nets to take fish in subsistence areas.  



                            (d)      Nothing in this section shall be construed as a  

                                                                                   

                   limitation  on  the  legislature's  or  the  Board  of  Fisheries'  

                   discretion to allocate fish among competing users.  



                   The Department of Law reviewed the initiative application and concluded  

                                                      



that 13PCAF met three of the four statutory requirements for certification:  the proposed  



initiative was confined to a single subject, the subject was expressed in the title, and its  

                                     

enacting  clause  contained  the  proper  introductory  phrase.2  

                                                                                           But  the  Department  



concluded that 13PCAF effected an appropriation and was therefore an invalid subject  



         2        See  AS  15.45.040(1)-(3)  (setting  requirements  for  form  of  proposed  



initiatives).  



                                                          -3-                                                    7073  


----------------------- Page 4-----------------------

                                                                                                     3  

for an initiative under article XI, section 7 of the Alaska Constitution.   Citing Pullen v.  



          4 

                                                                                         

Ulmer,   the  Department  concluded  that  13PCAF  violated  the  core  objectives  of  the  



                                                                    

prohibition  against  appropriative  initiatives  because  it  would  transfer  salmon  to  a  



majority user group - sport and personal use fishers - at the expense of a minority user  



group - commercial set netters - and would reduce the legislature's and Board of  



Fisheries' control over allocation decisions regarding salmon.  



                                                                                                 

                    Relying on the Department of Law's analysis, the Lieutenant Governor  



                                          5  

declined to certify 13PCAF.   



          B.        Proceedings  



                    After the Lieutenant Governor declined to certify the initiative, the sponsors  



filed a complaint for declaratory judgment and injunctive relief, asking the superior court  



                                     

to order the Lieutenant Governor to certify 13PCAF.  The sponsors argued that the  



proposed  initiative  would  not  appropriate  state  assets  but  was  instead  an  attempt  to  



"regulat[e] the methods and means for the take of wildlife" that "leaves all allocation  



decisions to the discretion of the legislature and the Board of Fish[eries]."  



          3         "The initiative shall not be used to . . . make or repeal appropriations."  



Alaska  Const.  art.  XI,    7.    See  also  AS  15.45.040(4)  (prohibiting  initiatives  from  

"includ[ing]  subjects  restricted  by  AS  15.45.010,"  which  mirrors  the  subjects  -  

                                  

including appropriations - listed in article XI, section 7 of the Alaska Constitution).  



          4         923 P.2d 54, 64-65 (Alaska 1996) (holding that a proposed initiative giving  



preferential treatment to subsistence, personal use, and sport fisheries at the expense of  

                                                                                                        

commercial fisheries would effect an appropriation).  



          5  

                                                                                                   

                    Certification is the first step in the initiative process.  If an initiative is not  

                                                 

certified,  it  will  not  appear  on  the  ballot.    See  AS  15.45.090  (requiring  lieutenant  

governor to circulate petitions if initiative is certified); AS 15.45.180, .190 (requiring  

lieutenant governor to place initiative on ballot if petition is properly filed).  



                                                             -4-                                                        7073
  


----------------------- Page 5-----------------------

                   The sponsors and the Lieutenant Governor filed cross-motions for summary  



                                                                                        

judgment.  The sponsors argued that "[v]oter initiatives must be construed broadly so as  



                                                                                                         

to  preserve  them  whenever  possible,"  that  Alaskans  have  historically  regulated  the  



methods and means for taking fish and wildlife by initiative, and that 13PCAF would  



                                                                                                               

"merely regulate[] the use of one gear type" while placing no restrictions on the Board  



                                                                                                  

of  Fisheries'  ability  to  allocate  fish  between  commercial,  sport,  guided  sport,  and  



personal uses.  In his motion for summary judgment, the Lieutenant Governor contended  



that 13PCAF effected an appropriation because it was "designed to appeal to the self- 



                                                                      

interests of a majority user group - sport and personal use fishers - by effectively  



                                                                                                       

transferring salmon from a much smaller minority of commercial users."  The Lieutenant  



Governor also argued that 13PCAF would "significantly reduce[] the legislature's and  



Board of Fisheries' control of and discretion over allocation decisions" by preventing  



them from allocating salmon stock to commercial set netters.   



                   The superior court granted summary judgment in favor of the sponsors,  



concluding that 13PCAF would not effect a prohibited appropriation.  Rejecting the  



Lieutenant Governor's claims, the court concluded that 13PCAF was not a give-away  



                                         

program because it "would not target any particular group to receive salmon or result in  



the voters voting themselves salmon."  And the court concluded that 13PCAF did not  



            

narrow the legislature's and Board of Fisheries' range of freedom in making allocation  



                                          

decisions because the Board "would be free to continue to allocate the salmon presently  



                                                

harvested by commercial set net fishers to other commercial fisheries . . . [or] authorize  



                                                                                           

new gear types for commercial fishermen."  The court therefore concluded that 13PCAF,  



if  passed,  would  be  a  permissible  regulatory  measure,  and  the  court  ordered  the  



Lieutenant Governor to certify the proposed initiative.  



                   The Lieutenant Governor appeals.  Resources for All Alaskans, Inc., an  



organization  representing  the  interests  of  commercial  fishers,  filed  an  amicus  brief  



                                                            -5-                                                      7073
  


----------------------- Page 6-----------------------

supporting the Lieutenant Governor's position and additionally arguing that 13PCAF  



                                                                                    6  

would enact impermissible local or special legislation.   



III.       STANDARD OF REVIEW  



                     "We review a superior court's decision on summary judgment de novo,  



drawing all inferences in favor of, and viewing the facts in the record in the light most                         



                                                            7  

favorable  to,   the  non-moving  party."     "We  review  questions  of  law,  including  the  



constitutionality of a ballot initiative, using our independent judgment, adopting the rule  

                                                                                                                         8    "The  

                                                                                                                            

of  law  that  is  most  persuasive  in  light  of  precedent,  reason,  and  policy." 



interpretation of the constitutional term 'appropriation' is a question of law to which we  

                                                                                                                        

apply our independent judgment."9  



IV.        DISCUSSION  



          A.         13PCAF Would Effect A Prohibited Appropriation.  



                     The Lieutenant Governor argues that the superior court erred by ordering  

                                                                                



him to certify 13PCAF.  He renews his claim that the proposed initiative would effect a  

                                                                                                                            



prohibited appropriation.  



                                                      

                     Article XI, section 1 of the Alaska Constitution provides that "[t]he people  



may propose and enact laws by the initiative."  This initiative power is not limitless,  



                                                                                                                        

however, and article XI, section 7 expressly restricts the use of the initiative.  One such  



           6         See Alaska Const. art. XI,  7 ("The initiative shall not be used to . . . enact       



local or special legislation.").  



           7         Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell , 215 P.3d 1064,  

                                                    

 1072  (Alaska  2009)  (citing Anchorage  Citizens  for  Taxi  Reform  v.  Municipality  of  

Anchorage , 151 P.3d 418, 422 (Alaska 2006)).  



           8         Id . (citing Anchorage Citizens for Taxi Reform , 151 P.3d at 422).  



          9          Id . at 1072 (citing Staudenmaier v. Municipality of Anchorage, 139 P.3d  

                                                                             

 1259, 1261 (Alaska 2006)).  



                                                                 -6-                                                          7073
  


----------------------- Page 7-----------------------

restriction   is   that   "[t]he   initiative   shall   not   be   used   to   .   .   .   make   or   repeal  



                        10  

                                                                                           

appropriations."            Although "[w]e 'construe voter initiatives broadly so as to preserve  



them whenever possible . . .' [a]nd 'we liberally construe constitutional and statutory  

provisions that apply to the initiative process,' "11 we "careful[ly] consider[]" "whether  



an initiative complies with article XI, section 7's limits."12  



                                                           

                    In  the  initiative  context,  we  have  construed  the  term  "appropriation"  



broadly,  looking  to  the  intentions  of  the  delegates  at  the  Alaska  Constitutional  



                                                       13  

                                                           We have concluded that the delegates had "two  

Convention for interpretive guidance. 



core objectives" in mind when they drafted the prohibition on appropriation by initiative:  



                                                                                                               

"(1)  'to  prevent  give-away  programs  that  appeal  to  the  self-interest  of  voters  and  



endanger the state treasury,' and (2) 'to preserve legislative discretion by ensur[ing] that  



the legislature, and only the legislature, retains control over the allocation of state assets  



                                        14  

                                                                                                   

among competing needs.' "                   By focusing our inquiry on these two core objectives, we  



                                                                            

have concluded that nonmonetary state assets, such as land and fish, may be the subjects  

of appropriations.15  



          10       Alaska Const. art. XI,  7.  



          11       Hughes v. Treadwell , 341 P.3d 1121, 1125 (Alaska 2015) (first quoting  



Pebble Ltd. P'ship , 215 P.3d at 1072, then quoting Kodiak Island Borough v. Mahoney ,  

            

71 P.3d 896, 898 (Alaska 2003)).  



          12       Id .  



          13       See  Thomas v. Bailey, 595 P.2d 1, 4-8 (Alaska 1979).  



          14       Hughes , 341 P.3d at 1126 (alteration in original) (emphasis in original)  



(quoting Pebble Ltd. P'ship , 215 P.3d at 1074-75).  



          15  

                                                                          

                   See Pullen v. Ulmer , 923 P.2d 54, 64 (Alaska 1996) (holding that proposed  

initiative allocating salmon species to noncommercial fishers at expense of commercial  

                                                                                                           (continued...)  



                                                             -7-                                                       7073
  


----------------------- Page 8-----------------------

                                                                                                  

                                                                                                                   

                    With these considerations in mind, "[w]e employ a two-part inquiry to  



                                                                                                          

determine whether an initiative makes an appropriation of state assets . . . .  First we must  



                                                                                         

determine 'whether the initiative deals with a public asset.' Second, if the initiative deals  



                              

with a public asset, then we must determine 'whether the initiative would appropriate that  



            16  

                To answer the second question, we evaluate whether the proposed initiative  

asset.' "                                                                                        



would  violate  either  of  the  core  objectives  of  the  prohibition  on  appropriations  by  

                                                                                                       



              17  

initiative.          If  we  determine  that  an  initiative  is  either  a  give-away  program  or  a  



restriction on the legislature's ability to allocate state assets among competing needs,  

                                                                                             



then we will hold the initiative to be a prohibited appropriation.  



                                                   

                    The sponsors argue that in City of Fairbanks v. Fairbanks Convention &  



                                                                                                                       

Visitors Bureau, we defined "appropriation" in the article XI, section 7 context to mean  



the "set[ting] aside [of] a certain specified amount of money or property for a specific  



                                                              

purpose or object in such a manner that is executable, mandatory, and reasonably definite  

                                                   18  They claim that this court does not need to evaluate  

                                                                                                                   

with no further legislative action." 



the two core objectives if an initiative does not meet this definition of appropriation.    



                                                       

                    The City of Fairbanks discussion related to defining appropriations in the  



context  of  an  initiative  seeking  to  repeal  a  municipal  code  section  that  "arguably"  



          15        (...continued)  



fishers would effect a prohibited appropriation); Bailey, 595 P.2d at 8-9 (holding that  

proposed  initiative  granting  state  land  to  state  citizens  would  effect  a  prohibited  

appropriation).  



          16        Hughes , 341 P.3d at  1125 (quoting Pebble  Ltd. P'ship , 215 P.3d at 1073).  



          17        Id . at 1126.  



          18        See  818 P.2d 11        53,   1157 (A     laska 1991).   They also cite Thomas v. Rosen,  



569   P.2d 793 (Alaska 1977), for a similar proposition. But  Thomas did not address  

appropriations in the context of article XI, section 7, and did not "purport[] to offer a  

general definition of appropriations." Bailey , 595 P.2d at 5 n.21.  



                                                               -8-                                                         7073
  


----------------------- Page 9-----------------------

                                                               19  

constituted an appropriation of tax revenues.    We defined "appropriation" as part of our  



                                                                                                        20  

                                                                                                            In Pullen v.  

analysis of the two core objectives, not as a prerequisite for that analysis. 



Ulmer we recited the City of Fairbanks definition of "appropriation" as simply part of  

                                                                                                         



                                                                                                    21  

the case law from which the "two core objectives . . . can be distilled."                               In Pebble Ltd.  

                                                                                       



Partnership  ex  rel  Pebble  Mines  v.  Parnell  we  made  clear  that  "[when  evaluating]  

                                         



whether the initiative would appropriate [public] assets, we look primarily to the 'two  



                                                                       

core objectives' of the constitutional prohibition against initiatives that would make an  



                      22  

appropriation."          And more recently, in Hughes , we reiterated the primacy of the two  

core objectives.23  



                   The  parties  agree  that  fish  are  a  state  asset  that  may  be  the  subject  of  



appropriations.   As a result, the primary issue before us is whether a ban on set net  

                                           



fishing constitutes an appropriation of salmon away from set netters and towards other  



fisheries.  



                   The Lieutenant Governor argues that Pullen governs this determination.  



Pullen concerned an initiative providing, in relevant part, that  



                   subsistence, personal use, and sport fisheries shall receive a  

                   preference  to  take  a  portion  of  the  harvestable  surplus  of  

                                                                                

                   salmon stocks.  Subsistence, personal use, and sport fisheries  

                   must be ensured of a reasonable opportunity to take enough  



          19       City of Fairbanks, 818 P.2d at 1156-57.  



          20       See id . ("Our prior cases defining 'appropriation' in the context of article     



XI, section 7 have concentrated on the two parallel purposes for preventing the making  

of appropriations through the initiative process.").  



          21       923 P.2d at 63.  



          22       215 P.3d 1064, 1074-75 (Alaska 2009).  



          23       See 341 P.3d 1121, 1126 (Alaska 2015).  



                                                            -9-                                                      7073
  


----------------------- Page 10-----------------------

                    salmon  necessary  to  satisfy  the  harvest  needs  of  those  

                    fisheries   before   other             fisheries   may          be   allocated        the  

                                                                                        [24] 

                    remaining portion of the harvestable surplus.  



               

We  held  that  "the  state's  interest  in  salmon  migrating  in  state  and  inland  waters  is  



                             

                                                                                          

sufficiently strong to warrant characterizing such salmon as assets of the state which may  



                                                  25  

                                                                    

not be appropriated by initiative."                   Further, we held that the initiative violated both core  



                                                                                                       

objectives of the prohibition on appropriations by initiative.   We concluded that the  



                                                                                   

initiative was a give-away program because "it [was] clear that the proposed initiative  



                                                                                

[was] designed to appeal to the self-interests of sport, personal[,] and subsistence fishers,  



in  that  [those]  groups  [were]  specifically  targeted  to  receive  state  assets  in  the  



                                                             26  

                                                                                                               

circumstance of harvestable shortages."                           And we also concluded that "the initiative  



[would] significantly reduce[] the legislature's and Board of Fisheries' control of and  



                        

discretion over allocation decisions, particularly in the event of stock-specific or region- 



                                                                                                              27  

specific  shortages  of  salmon  between  the  competing  needs  of  users."                                         We  made  



                                                   

particular note of the possibility that the proposed initiative, if approved, "could result  

in the closure of some commercial fisheries."28  



                    The Lieutenant Governor argues that, similar to the initiative in Pullen ,  



                                                                

13PCAF would be a give-away program, allocating fish away from set netters towards  



          24        923 P.2d at 55.  



          25        Id . at 61.  



          26        Id . at 63.  



          27        Id . (citing McAlpine v. Univ. of Alaska, 762 P.2d 81                       ,  88-89 (Alaska 1998)).  



The legislature has del           egated to the Board of Fisheries the authority to "allocate fishery  

resources   among   personal   use,   sport,   guided   sport,    and   commercial   fisheries."  

AS 16.05.251(e).  



          28        Pullen , 923 P.2d at 64.  



                                                              -10-                                                         7073
  


----------------------- Page 11-----------------------

all other fishers.  And he contends that 13PCAF would narrow the legislature's and  



Board  of  Fisheries'  range  of  freedom  in  making  allocation  decisions  by  effectively  



prohibiting them from allocating salmon stock to set netters.   



                   1.        13PCAF would be a "give-away program."  



                                                                      

                   The superior court concluded that "13PCAF [would] not result in a give- 



                                                                                     

away program."  The court reasoned that "commercial set netters are not a 'user group'  



                                                                                          

[under AS 16.05.251(e)] any more . . . than sport fishers using fly rods are a distinct user  



                                                                                                              

group from those using spinning rods."  Relying on this reasoning, the court applied our  

                           29  to conclude that "[i]nitiatives that regulate public assets are  not  

holding in  Pebble                                                                                                 



prohibited so long as the regulations do not result in the allocation of an asset entirely to  

                                                                                                



one group at the expense of another."  



                   The Lieutenant Governor argues that the court's application of Pebble was  



flawed  because  the  court's  reliance  on  AS  16.05.251(e)'s  broad  categories  was  



misplaced.  Specifically, he claims that it was error to conclude that the relevant user  



                                                                               

group was "commercial fishers" as a whole instead of the subset of commercial fishers  



who use set nets.  He is correct.  Although AS 16.05.251(e) grants the Board of Fisheries  



                                                                                      

the authority to "allocate fishery resources among personal use, sport, guided sport, and  



commercial fisheries," the Board is not precluded from making intragroup allocations  



within those general categories.  



                   Indeed, the statute's definition of "fishery" demonstrates that intragroup  



                                                                                                

allocations are more than appropriate: AS 16.05.940(17) provides that " 'fishery' means  



                                           

a specific administrative area in which a specific fishery resource is taken with a specific  



type of gear; however, the Board of Fisheries may designate a fishery to include more  



          29  

                                                                                      

                   See Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell , 215 P.3d  

1064, 1077 (Alaska 2009).  



                                                            -11-                                                         7073  


----------------------- Page 12-----------------------

                                                        30  

                                                                             

than  one  specific  .  .  .  type  of  gear."              (Emphasis  added.)  Under  this  definition,  a  



                                                                    

commercial set net fishery is distinct from a commercial drift net fishery,  unless the  



Board of Fisheries chooses to designate them together.  



                                                      

                   The  sponsors  respond  that  "[b]ecause  the  Board  of  Fisheries  is  free  to  



define a 'fishery' in a more expansive manner than 'commercial set netters,' it is not  



accurate to say that a regulation prohibiting commercial set nets would 'eliminate a  



                                                                                                            

fishery.' "  This argument is unpersuasive because, regardless of the Board of Fisheries'  



                                                                              

freedom to do otherwise, the Board does differentiate between "set gillnet fisheries" and  



                                  31  

                                      Banning set nets would therefore, quite obviously, eliminate  

"drift gillnet fisheries."                                                                       



set net fisheries as they are currently designated by the Board.  Relatedly, as amicus  



                                                                                                   

curiae Resources for All Alaskans points out, commercial set net permits are issued  



                                                                                                       32  

separately from drift net permits and have different monetary values.                                      As a result,  



                   

commercial set netters affected by 13PCAF could not immediately or easily transition  



to other forms of commercial fishing.  Not only would they need to obtain the necessary  



                                          

gear, they would also need to obtain the necessary permits to operate in the separate  



          30       See also AS 16.43.990(4) (defining "fishery" similarly for purposes of  



limiting entry to commercial fisheries).  



          31       See, e.g., 5 Alaska Administrative Code (AAC) 21.353, .354, .358, .359,  



.360, .365 (2015) (establishing Board of Fisheries management plans distinguishing  

                                                                                                

between  commercial set gillnet and  drift gillnet  fisheries);  see also 20 AAC 05.320  

                                                       

(establishing  a  Commercial  Fisheries  Entry  Commission  regulation  distinguishing  

between set gillnet and other commercial fisheries).  



          32       20  AAC  05.245(b)  ("[A]  separate  permit  is  required  for  each  separate  



fishery  resource,  gear,  and  administrative  area.");  see  also  COMMERCIAL  FISHERIES  

ENTRY         COMM 'N ,        Permit        Value       Report       Menu ,       https://www.cfec.state.ak.us/  

pmtvalue/mnusalm.htm (last updated Jan. 5, 2012).  



                                                            -12-                                                      7073
  


----------------------- Page 13-----------------------

fisheries, and those permits are in limited supply.33  



                   Indeed,  we   have  previously  concluded  that  AS  16.05.251(e)  governs  



allocations among different commercial fisheries as well as between the more general  



categories of personal use, sport, guided sport, and commercial fisheries.  In Peninsula  



Marketing Ass'n v. State , we held that  



                   [t]he   criteria   listed   in   [AS   16.05.251(e)]   are   equally  

                   applicable to intra-group resource allocation as they are to  

                   inter-group allocation.   There is no basis for distinguishing  

                   allocations  among  commercial  fisheries  from  allocation  

                   between different types of fisheries.  Commercial fishers in  

                   Fishery A would suffer the same loss if the board reallocated  

                                                                           

                   certain  fish  resources  to  commercial  Fishery  B  that  they  

                              

                   would suffer if the [B]oard reallocated the fish to sport fishers  

                   in Fishery A.  Indeed, this court has specifically rejected a  

                       

                   d i s t i n c t i o n   b e t w e e n     c o m m e r c i a l - s p o r t    a n d   

                                                           

                                                                       [34] 

                   commercial-commercial allocations.  



                                                                                

And in Alaska Fish Spotters Ass'n v.  State, Department of Fish & Game we noted that  



"[i]f the Board . . . allocate[s] the resource between competing subgroups of commercial  



                                                               35  

                                                                   Thus it was error for the superior court  

uses, it must comply with AS 16.05.251(e)." 



                                                                                                              

to conclude that commercial set netters do not comprise a discrete user group.  Because  



                                                                                             

they do comprise a discrete user group, we must decide whether 13PCAF would be a  



give-away program.  



                   The  Lieutenant  Governor  argues  that  13PCAF  is  no  less  a  give-away  



                          

program than the challenged initiative in Pullen.  There we concluded that the initiative  



         33        See 20 AAC 05.320.  



         34        817 P.2d 917, 921 (Alaska 1991) (emphases added) (citing Meier v. State,  



Bd. of Fisheries , 739 P.2d 172, 174 (Alaska 1987)).  



         35        838 P.2d 798, 801 n.2 (Alaska 1992).  



                                                          -13-                                                    7073
  


----------------------- Page 14-----------------------

                                                                                                         

in question was a give-away program because it was "designed to appeal to the self- 



interests  of  sport,  personal[,]  and  subsistence  fishers,  in  that  [those]  groups  [were]  



specifically   targeted   to   receive   state   assets   in   the   circumstance   of   harvestable  



                 36  

shortages."          Likewise, the Lieutenant Governor contends, 13PCAF "is designed to  



                                                                                                           

appeal to the self-interests of majority user groups - primarily sport and personal use  



fishers  -  by  making  available  to  them  the  catch  of  a  much  smaller  minority  of  



                                                                                                               

commercial users."  He also claims that 13PCAF would "appeal to the self-interest of  



                                                      

[commercial] drift net fishers, who would stand to benefit from the elimination of the set  



net fishery in Cook Inlet."  



                                                               

                    The sponsors argue that the comparison to Pullen is faulty for two reasons.  



                                 

They first argue that 13PCAF would merely regulate a method of commercial fishing,  



                                

not allocate salmon stock among fisheries.  Second, they argue that unlike in Pullen ,  



                                                                         

where it was clear which groups would benefit from the initiative, it is unknown which  



fisheries would benefit if 13PCAF were enacted.  



                                                                         

                    The sponsors claim that 13PCAF cannot effect an appropriation because  



it was drafted as a regulatory measure and does not explicitly allocate salmon stock.  



They rely on our holding in Pebble that the regulation of public assets is a valid subject  



for initiative, but they largely ignore the significant - and relevant - caveat in that  



           

case's holding.  Specifically, Pebble held 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  



                                         37  

at the expense of another."                   



          36        Pullen v. Ulmer , 923 P.2d 54, 63 (Alaska 1996).  



          37        Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell                               , 215 P.3d 1064,  



1077 (Alaska 2009) (emphasis added).  



                                                               -14-                                                         7073
  


----------------------- Page 15-----------------------

                     The sponsors appear to claim that this caveat does not apply here because           



 13PCAF would not allocate the asset entirely to one group, but this is an overly narrow   

and literal reading of Pebble 's holding.  Pebble cited Pullen to support its holding,38 and  



                                                                                                     39  

                                                                                                           Pebble  expressly  

Pullen  involved  the  allocation  of fish  to  three  separate  groups.  



                                                                                                               

referenced this aspect of Pullen immediately after its caveat, noting that the initiative at  



                                                                             

issue in Pullen would "reserve a priority of wild salmon stock for personal, sport, and  



                                                                                                                    40  

                                                                                                                        Reading  

subsistence fisheries before allocating any stock for commercial fisheries." 



Pebble and Pullen together, an initiative may constitute an appropriation if it results in  

                                                                                                                  



the complete reallocation of an asset from a significant, distinct user group.  



                     Relatedly, the sponsors argue that it is not entirely clear which groups will  



benefit from 13PCAF, a factor that distinguishes it from the initiative in Pullen .  This  



argument is unconvincing.  As previously noted, 13PCAF would result in the allocation  



of salmon stock away from commercial set netters to some combination of all other  

                                                                                                                     41   There is  

                                                                                                                          

fisheries in nonsubsistence areas where set net fishing is currently permitted.  



a distinct possibility that all other fisheries would benefit from 13PCAF.  But even if the  

                                                                  



Board of Fisheries reallocated the salmon stock unevenly, it is unlikely that any existing  

                                                                                          



group (other than set netters) would have its allocation reduced as a result of 13PCAF:  

                                  



if the salmon stock available for allocation increases  with the elimination of set net  



                                                                                         

fisheries,  there  would  be  little  reason  for  the  Board  to  decrease  any  other  fishery's  



          38         See id . (citing Pullen , 923 P.2d at 63-64).  



          39        Pullen , 923 P.2d at 55.  



          40        Pebble , 215 P.3d at 1077 (citing Pullen , 923 P.2d at 63-64).  



          41         Indeed,  because  the  initiative  in Pullen  benefitted  only  noncommercial  



fishers while 13PCAF has the potential to benefit some commercial fishers as well,  

 13PCAF would appear to have broader appeal as a give-away program than the initiative  

in Pullen .  



                                                               -15-                                                          7073
  


----------------------- Page 16-----------------------

allocation.42  As a result, all other fisheries have a fair chance of gaining from the passage       



of the initiative and little chance of losing from it.  Therefore, like the initiative in                                     Pullen ,  



13PCAF "tempt[s] the voter to [prefer] . . . his immediate financial welfare at the expense  

of vital government activities."43  



                     For these reasons, we conclude that 13PCAF is a give-away program and  

                                                                                                     



therefore a prohibited appropriation by initiative.  



                     2.	        13PCAF would narrow the legislature's and Board of Fisheries'  

                                                                         

                                range of freedom in making allocation decisions.  



                     The superior court concluded that 13PCAF did not narrow the legislature's  

                                                                                                      



and Board of Fisheries' range of freedom in making allocation decisions because the  



proposed initiative "does not create an express preference" for any of the general classes  



of fisheries listed in AS 16.05.251(e).  "13PCAF does not take fish from commercial  



users and allocate those fish to sport users . . . [or] change the Board of Fisheries' role  



                                                                                             

in the allocation among commercial, sport, and personal use fisheries . . . ."  But this  



                                                                                                                    

analysis errs for the reason discussed above:  commercial set netters are a discrete user  



                                                          

group, so 13PCAF's ban on set net fishing clearly narrows the legislature's and Board  



                                                                                                   

of Fisheries' range of freedom in making allocation decisions.  If 13PCAF were enacted,  



                                                                              

then neither the legislature nor the Board would be able to allocate any salmon stock to  



this significant, existing user group.  



           B.	       Alaska's "Long History Of Using Direct Legislation To Manage The  

                     Taking Of Fish And Wildlife" Does Not Save The Initiative.  



                     The sponsors note that Alaska has a long history of using the initiative to  



           42         13PCAF would not alter the Board's discretion to reduce other groups'  



allocations, but it is difficult to see how its enactment would lead to such reductions.  



           43        Pullen ,  923  P.2d  at  63  (alterations  and  omissions  in  original)  (quoting  



Thomas v. Bailey, 595 P.2d 1, 8 (Alaska 1979)) (internal quotation marks omitted).  



                                                                  -16-	                                                           7073
  


----------------------- Page 17-----------------------

                      

                                                                 

enact or reject regulations for managing the taking of fish and wildlife.  They point out  



                               

that on the same day Alaskans voted to enact the Alaska Constitution, they also voted to  



                                                                          

enact Ordinance 3, which provided that "the use of fish traps for the taking of salmon for  



                                                                                                                 44  

                                                                                                                      Since  

commercial purposes is hereby prohibited in all the coastal waters of the State." 



then, the sponsors note, Alaskans have voted on a variety of initiatives that would have  

                                    



(1)  repealed  the  law  regulating  limited  entry  fishing;  (2)  altered  the  regulations  for  



                                                                                        

personal consumption of fish and wildlife; (3) prohibited the same-day airborne hunting  



of wolves, wolverines, foxes, and lynxes; (4) prohibited the use of snares for trapping  



wolves; and (5) prohibited bear baiting and feeding.  The sponsors also note that in  



                                                                

Brooks v. Wright we reversed the superior court's injunction against placing the wolf  

                                         45   They argue that the appearance of these initiatives on the  

                                                                                                       

snare initiative on the ballot. 



ballot demonstrates 13PCAF's constitutionality.  This is incorrect.  



                                                                                                                

                   Ordinance 3 was approved before the Alaska Constitution went into effect  



and was thus not governed by the constitutional prohibition against appropriating by  



              46  

initiative.         Moreover,  as  the  Lieutenant  Governor  points  out,  the  ordinance  was  



                                               47                      48 

introduced  as  an  "emergency,"                    "transitional"         measure  designed  to  prevent  the  



          44       Alaska Const. ord. 3,  2.  



          45       See 971 P.2d 1025, 1033 (Alaska 1999).  



          46       See Alaska Const. ord. 3,  2 ("If the constitution shall be adopted by the  



electors   and   if a majority of all the votes cast for and against this ordinance favor its  

adoption, then [the ordinance] shall become operative upon the effective date of the  

constitution.").  



          47       See  Statement  of  Delegate  Seaborn  J.  Buckalew,  5  Proceedings  of  the  



Alaska Constitutional Convention (PACC) 3214 (Jan. 26, 1956).  



          48        Statement o      f Delegate Seaborn J. Buckalew, 5 PACC 3214, 3219, 3232  



                                                                                                          (continued...)  



                                                            -17-                                                      7073
  


----------------------- Page 18-----------------------

                                                                                                                  49  

                                                                                                                       

continued  decimation  of  Alaska's  resources  by  out-of-state  interests                                            before  the  



                                                               50  

                                                                                                            

fledgling  state  legislature  could  react.                          There  was  significant  discussion  at  the  



constitutional  convention  over  whether  it  would  be  more  appropriate  to  allow  the  



                                                         51 

                                                            but the delegates ultimately voted to include the  

legislature to enact the fish trap ban, 



                                                    52  

fish trap ordinance on the ballot.                       The arguments that prevailed were (a) that it was  



           48        (...continued)  



(Jan. 26, 1956); accord Statement of Delegate Victor Fischer, 5 PACC 3246 (Jan. 26,  

1956).  



           49        See Statement of Delegate Victor C. Rivers, 5 PACC 3228 (Jan. 26, 1956)     



("[I]n 1949 . . .  there were 455 fish traps in Alaska.   They were owned by 138 owners,                         

practically all residents of the Pacific Northwest.  At that time, they were taking between  

$80,000,000 and $100,000,000 a year in fish out of Alaska waters for a total catch,  

                                                    

approximately one-half of which was caught by fish traps.  They have, as we all know,  

                                                                                              

seriously  depleted  the  resource.");  see  also  Statement  of  Delegate  R.E.  Robertson,  

                

5 PACC 3231 (noting that some commercial fishers "even come up from California" and  

                                                                                                    

that out-of-state fishers "fish more intensely than many of our local fishermen do").  



           50  

                                                                                                                          

                     Statement of Delegate Seaborn J. Buckalew, 5 PACC 3241 (Jan. 26, 1956)  

                                                                                 

("The purpose of this ordinance . . . [is to guarantee that] the minute the President issues  

                                                                                                                       

the proclamation [of statehood] the traps are illegal.  We don't have to wait 30 days, 40  

                                                                                       

days, or six months for the legislature to get around to acting."); Statement of Delegate  

                                                                                                    

Victor Fischer, 5 PACC 3246 (Jan. 26, 1956) ("This provision is designed primarily to  

                                       

take care of the period  from the time we become a state until the time that our first  

legislature could meet and pass the necessary legislation.").  



           51  

                                                                        

                     Statement of Delegate John C. Boswell, 5 PACC 3217 (Jan. 26, 1956)  

                                                         

("The problem that faces us . . . is . . . whether an ordinance is a proper approach to the  

                                                                       

[fish trap] problem."). Statement of Delegate Robert J. McNealy, 5 PACC 3225 (Jan. 26,  

                                                                                                    

1956) ("I still am in favor of the abolition of fish traps, but . . . I believe it is a legislative  

                                                     

matter."); Statement of Delegate Herb Hilscher, 5 PACC 3227 (Jan. 26, 1956) ("This is  

a legislative matter.").  



           52  

                                            

                     See  5  PACC  3591 (Jan. 30, 1956) (showing the delegates voted 38-16  

against striking the fish net ordinance from the ballot).  



                                                                 -18-                                                           7073
  


----------------------- Page 19-----------------------

                                                                                   53  

                                                                                                         

inevitable that the state legislature would ban fish traps,                           and (b) that action was needed  



                                                               54  

as  soon  as  Alaska  achieved  statehood.                           Here,  however,  13PCAF  is  neither  an  



emergency  nor  transitional  measure,  and  the  delegates'  primary  considerations  for  



allowing the voters to directly ratify Ordinance 3 do not apply to 13PCAF.  



                    The sponsors highlight our statement in Brooks that "the delegates' decision  



to submit Ordinance 3 . . . for voter ratification along with the rest of the constitution  



evidences  the  delegates'  and  voters'  understanding  that  wildlife  management  issues  



                                                            55  

would be subject to direct democracy."                          But the Lieutenant Governor does not claim  



                                       

otherwise.    Instead  he  contends  that  13PCAF  does  not  only  regulate,  but  also  



                                             

impermissibly appropriates.  Moreover, the delegates' decision to subject Ordinance 3  



                                                                                             

to popular vote has more precedential force in the context of wildlife management - a  



policy area not expressly prohibited by article XI, section 7 of the Alaska Constitution  



          53        Statement of Delegate W.O. Smith, 5 PACC 3223-24 (Jan. 26, 1956) ("The                   



people  of  Alaska  have  never  made  any  secret  of  the  fact  that,  when  they  achieve  

statehood, the traps will go.").  Even some opponents of the ordinance recognized that  

a fish trap ban was inevitable.  See  Statement of Delegate John C. Boswell, 5 PACC  

                                                        

3217 (Jan. 26, 1956) ("[I]t's inconceivable to me that the first state legislature wouldn't  

                                                                                  

[abolish fish traps] as a matter of course."); Statement of Delegate Robert J. McNealy,  

                                      

5 PACC 3224-25 (Jan. 26, 1956) ("I can't imagine any representative or senator voting  

                                                                              

against the abolition of fish traps unless he was intending to move on to Seattle right after  

                                                                                      

the session was over."); Statement of Delegate Herb Hilscher, 5 PACC 3228 (Jan. 26,  

                                                                                                                       

1956) ("We know very well that it would be political suicide for anyone to go to that first  

                                                                                                                    

legislature and not be in favor of the immediate elimination of fish traps.").  



          54        Statement  of  Delegate  Jack  Hinckel,  5  PACC  3213-14  (Jan.  26,  1956)  



("[O]ne of the main things about [Ordinance 3] is that it is asking for [fish traps] to be  

                                                                                                           

gotten rid of immediately upon the acceptance of the constitution . . . to relieve economic  

distress . . . .").  



          55        Brooks v. Wright , 971 P.2d 1025, 1030 (Alaska 1999).  



                                                              -19-                                                         7073
  


----------------------- Page 20-----------------------

- than in the context of appropriations, which are expressly prohibited by that section.                                              56  



                     Regarding the subsequent initiatives the sponsors cite, the mere fact that  



                                                            

these measures appeared on the ballot does not demonstrate their constitutionality under  



                                                                                            

the appropriations clause of article XI, section 7.  Two of the five cited initiatives were  



                                                                                                            

considered before we held that fish were a public asset that may not be appropriated by  



               57                                                                          58                        59 

initiative.        While considering the same-day aerial hunting                               and wolf snare            initiatives  



                                                               

in Brooks , we held that natural resource management was a proper subject for legislation  



by initiative, but we explicitly declined to address the appropriations issue sua sponte,  



                                                            

noting  that  neither  party  made  any  claims  relating  to  the  appropriations  clause  of  



                                  60                                                            61 

article  XI,  section  7.               Nor  was  the  bear  baiting  initiative                     ever  challenged  as  an  



           56        Accord  Hughes v. Treadwell , 341 P.3d 1121, 1125 (Alaska 2015) (" '[W]e        



liberally  construe  constitutional  and  statutory  provisions  that  apply  to  the  initiative  

process,' " but "whether an initiative complies with article XI, section 7's limits requires  

                        

careful consideration." (first quoting Kodiak Island Borough v. Mahoney , 71 P.3d 896,  

898  (Alaska  2003),  then  quoting  Pebble  Ltd.  P'ship  ex  rel.  Pebble  Mines  Corp.  v.  

        

Parnell , 215 P.3d 1064, 1073 (Alaska 2009))).  



           57        See Pullen v. Ulmer , 923 P.2d 54, 61 (Alaska 1996);   STATE OF ALASKA ,  

                                                                       

O                                                                                                         

   FFICIAL  RETURNS  BY  ELECTION  PRECINCT : GENERAL  ELECTION  47 (Nov. 2, 1982),   

http://www.elections.alaska.gov/results/82GENR/82genr.pdf;                                           STATE        OF      ALASKA ,  

OFFICIAL  RETURNS  BY  ELECTION   PRECINCT :   GENERAL  ELECTION   33 (Nov. 2, 1976),  

http://www.elections.alaska.gov/results/76GENR/76genr.pdf.  



           58        See STATE OF ALASKA , DIV . OF  ELECTIONS , Prior Initiative Petition List ,  

                                                            



95HUNT,  http://www.elections.alaska.gov/pbi_ini_status_prior_list.php  (last  visited  

Nov. 18, 2015).  



           59        See STATE OF ALASKA , DIV . OF  ELECTIONS , Prior Initiative Petition List,  

                                                            



97TRAP, http://www.elections.alaska.gov/pbi_ini_status_prior_list.php (last visited Nov.  

 18, 2015).  



           60        Brooks , 971 P.2d at 1028 n.12 ("The [appropriation by initiative] question  



                                                                                                                   (continued...)  



                                                                 -20-                                                           7073
  


----------------------- Page 21-----------------------

unconstitutional appropriation by initiative.  



                                                                                                       

                  Moreover, none of these initiatives targeted allocations to or away from a  



         

class as discrete as commercial set netters are.  Under the Limited Entry Act and its  

implementing  regulations,62  commercial  set  netters  must  obtain  gear-specific  set  net  



           63                                        64 

                                                                                         

permits,      which are limited in number,              hold significant value, and may be bought and  



       65  

           And unlike noncommercial hunting and fishing licenses, these set net permits  

sold.                                                                                               



carry over from year to year.  This makes commercial set netters a far more cohesive,  

                                                            



recognizable, and permanent group than individuals who hunt wolves using same-day  



aerial techniques or snares, or who hunt bears using baiting or feeding methods.  The  

                                                                                                 66 and those who  

                                                                                                     

latter individuals must generally apply for permits and licenses annually, 



wish to participate in more heavily regulated hunts have no guarantee that they will be  

                                                                                                  



         60        (...continued)  



is . . . not properly before us, and we do not address it here.").  



         61       See STATE OF ALASKA ,  DIV . OF ELECTIONS , Prior Initiative Petition List ,  



03BEAR,  http://www.elections.alaska.gov/pbi_ini_status_prior_list.php  (last  visited  

Nov. 18, 2015).  



         62       AS 16.43.010-.990; 20 AAC 05.010-.1990.  



         63       20 AAC 05.100.  



         64       20 AAC 05.320.  



         65       See COMMERCIAL FISHERIES ENTRY COMM 'N , Permit  Value Re                             port Menu ,  



https://www.cfec.state.ak.us/pmtvalue/mnusalm.htm (last updated Jan. 5, 2012).  



         66       See ALASKA  DEP 'T OF FISH & GAME , Fishing and Hunting License General  



FAQ , http://www.adfg.alaska.gov/index.cfm?adfg=license.general (last visited Nov. 18,  

2015) ("Licenses are good from the date of purchase through December 31 of the license  

year.").  



                                                         -21-                                                   7073
  


----------------------- Page 22-----------------------

permitted to do so in any given year.67  



                                                          

                   This case is governed by the holdings of Pebble and Pullen , not by the  



                                                        

existence       of    ballot     measures        that    were     never      challenged        as    unconstitutional  



                                   

appropriations.  Under our precedent, 13PCAF would effect an appropriation, and is  

constitutionally prohibited.68  



V.        CONCLUSION  



                                                           

                    13PCAF  triggers  both  of  the  delegates'  core  concerns  underlying  the  



prohibition on appropriations by initiative:  the initiative would result in a give-away  



                                        

program  of  salmon  stock  from  set  netters  to  other  types  of  fishers,  and  it  would  



                                                      

significantly narrow the legislature's and Board of Fisheries' range of freedom to make  



                                                                                                    

allocation decisions.  13PCAF would therefore effect a prohibited  appropriation via  



initiative.  We accordingly REVERSE the superior court's order requiring the Lieutenant  



Governor to certify the initiative.  



          67       See ALASKA  DEP 'T OF FISH &  GAME , Drawing Hunt Permits Information  



Overview, http://www.adfg.alaska.gov/index.cfm?adfg=huntlicense.draw (last visited  

October  27,  2015)  ("Drawing  hunts  require  an  application  fee  and  are  awarded  by  

lottery.  Each year, the Alaska Department of Fish and Game . . . publishes . . . specific  

                                                                          

information containing the drawing hunt opportunities and area boundaries.").  



          68       Because we decide the case on these grounds, we do not reach amicus  



curiae's argument that 13PCAF would enact impermissible local or special legislation.  

                                                                  



                                                           -22-                                                      7073
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC