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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Mallot v. Stand for Salmon (8/8/2018) sp-7274

Mallot v. Stand for Salmon (8/8/2018) sp-7274

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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  



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,                        )                        

                                                                       O P I N I O N  

                                                                 )  

          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  


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

                                                                                                  

                    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  



                                                                                                                           

                    TheLieutenant Governor declined to certify aproposedballot initiativethat  



                                                                                                                           

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  



                                                                                                                        

                    InMay2017thedirectors oftheAlaska-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
  


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

Department of Law concluded that the initiative effected an appropriation in violation     



                                                                                                            1  

of article XI, section 7 of the Alaska Constitution.                                                                                                                

                                                                                                                 The Department found that the  

                                                                                                                                                         2   fish habitat  

                                                                                                                                                                      

                                                                                                                               

initiative would restrict the legislature's ability to allocate anadromous 



among competing uses by "outright prohibit[ing] the use of anadromous waters for  

                                                                                                                                                                              



certain development purposes."   The Department thus informed the Sponsors that it  

                                                                                                                                                                                 



intended to recommend that the Lieutenant Governor deny certification of 17FSHB.  

                                                                                                                                                            



                            Upon receiving the Department of Law's analysis, the Sponsors withdrew  

                                                                                                                                                                 



 17FSHB and filed a revised version of the initiative in July, which the Division of  

                                                                                                                                                                                



Elections denominated "17FSH2."   Like its precursor, 17FSH2 proposes a bill that  

                                                                                                                                                                            



would "amend, repeal, and reenact" provisions of AS 16.05, which requires persons  

                                                                                                                                                                    



seeking to engage in activities that could damage certain state waters to first secure a  

                                                                                                                                                                                  

                                                                                                                     3   The initiative would expand  

permit from the Department of Fish and Game (ADFG).                                                                                                                  

                                                                                                   



this permit requirement to cover all activities that "may use, divert, obstruct, pollute,  

                                                                                                                                                                    

                                                                                                              4   Under the proposed permitting  

disturb or otherwise alter anadromous fish habitat."                                                                                                          

                                                                                            



              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,  

                                                                                                                                                                        

                                                                                                                                                                             AC.  

spend most of their life at sea, and return to fresh water to spawn.  See Species, N. P 

                                                                                                                                                                     

    NADROMOUS FISH COMM'N, https://npafc.org/species/ (last visited July 30, 2018).                                                                             

A                                                               



              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             Section3 oftheinitiative(proposed AS16.05.871(f)) defines "anadromous  

                                                                                                                                                         

fish habitat"as"anaturally occurringpermanentor intermittent seasonal water body, and  

                                                                                                                                                                              

the bed beneath, including all sloughs, backwaters, portions of the floodplain covered by  

                                                                                                                                                                                

                                                                                                                                                        (continued...)  



                                                                                       -3-                                                                                7274
  


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

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  



                                                                                                                                                   

                        Theinitiativeenumerates requirements that would haveto besatisfied 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)         Whenissuing apermitunder AS16.05.867-16.05.901,  

                                                                                                                              

                        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
  


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

                     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.  



                                                                                                                                  

                     Theinitiativealsoenumeratescertaincircumstancesinwhichapermit "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:  

                                                                                   [6] to anadromous fish  

                                (1)        cause substantial damage                                             

                     habitat under AS 16.05.877(b);  

                                                  



           6         Emphasis added.  

                                       



                                                                   -5-                                                            7274  


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

                               (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)       withdrawwater fromanadromousfishhabitat 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  

                                                                                                        [7]  

                                                                                                             to  

                     determination,   will  not  cause  substantial  damage                                  

                     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  


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

                                                                                                                                

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.  



                                                                                                                     

                    TheDepartment ofLawreviewedtherevisedinitiativeand againconcluded  



                                                                                                                          

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 theinitiative'sprovisions." 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 theLegislature." TheLieutenant Governor and the Division ofElections(collectively,  



                                                               -7-                                                         7274
  


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

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.   

                                                                          8 and concluded thattheinitiative"leaves thelegislaturediscretion  

Partnership v. Parnell,                                                                                                                                                                                                                                    



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  


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

independent judgment,                          adopting   the rule of law that is most persuasive in                                                  light  of  



                                                             10  

precedent,   reason,   and   policy.                                                                                                                       

                                                                    "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  



                              11  

                             

Constitution.' " 



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 ofits 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
  


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

                      The   Alaska   Constitution   also   grants  Alaskans   a   broad   right   to   self- 



                                                                                                                                         12  

government   through   the   use   of   the   ballot   initiative   to   "propose   and   enact   laws."                                      



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  

                                                                                                                                 



                                                                                 15  

to a private non-profit organization for one dollar.                                  

                                                                       



                      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         Seealso      AS15.45.010 ("Thelaw-making                          powers assigned to thelegislature       



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  

                                                                                                                          

                     AlaskaConservativePolitical ActionComm. v. Municipalityof Anchorage,  

                                                   

745 P.2d 936, 936-38 (Alaska 1987).  



           16         762 P.2d 81, 88 (Alaska 1988).  

                                                               



                                                                   -10-                                                             7274
  


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

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                                                                                         

                                                                   17      On that basis, we concluded that an initiative that would  

among competing needs."                                                                                                                                                                                     



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
  


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

on itself.        Second,  the prohibition was designed to preserve to the legislature the power                                                



                                                                                                            20  

to make decisions concerning the allocation of state assets                                              ."     



                        These  core  objectives  have  been  the  foundation  of  our  appropriation  

                                                                                                                                  

                21   But we have occasionally explained the test for evaluating those objectives  

analysis.                                                                                                                                



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  

                                                                                 

                                                                                                                               24   These stated  

the voters essentially usurp the legislature's resource allocation role.' "                                                          

                                                                                                                              



tests have been useful in explaining why particularinitiativesamounted 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
  


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

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                                                                                               

                                                                25     In Staudenmaier v. Municipality of Anchorage, citing the  

over allocation decisions."                                                                                                                                                                               



"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  

                                                                                                                                                                                                  

                                        26     And in Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula  

within one year.                                                                                                                                                                        

                            



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
  


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

fisheries except commercial set netters and because it would "narrow the legislature's                                                                        



and Board of Fisheries' range of freedomin making allocation decisions"so that "neither                                                                                 



the legislature nor the Board would be able to allocate any salmon stock to [commercial                                                                       

 set netters]."            29  



                             Whendeterminingwhether aninitiativeeffectsan appropriation,theproper  

                                                                                                                                                                           



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  

                                                                                                                                                                                  

             32   or by removing certain allocation decisions from the legislature's range of  

future                                                                                                                                                                             

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
  


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

                                                                                                                     

          B.	       17FSH2 Makes AnImpermissibleAppropriationBecause 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  



                                                                                                  

                    despitetheapplicationofscientificallyproven,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
  


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

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  

                                                                          34  by removing certain allocation decisions from the legislature's  

competing needs' "                                                                                                                                                                                                                                                                  



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  


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

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                                                           



                                                                                          35  

decision in           Pebble Ltd. Partnership v. Parnell                                  .                                                                     

                                                                                                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  

                                                                            36     The case presented two questions:  how to  

                                                                                                                                                                     

any stage of the life cycle of salmon." 



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 theinitiative'slanguage -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
  


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

because   the   parties   to   the   case   agreed  that,   as   interpreted,   the   initiative   would   not  



                                                          40  

constitute an appropriation.                                                                                                                                               

                                                                In the absence of an actual dispute, our discussion was  

                                     41    And  though  we  may  follow  dicta  when  persuasive,  Pebble 's  

                                                                                                                                                                

                     

therefore  dictum. 



reasoning is anything but.  

                                              



                                                                                                                                                                                42  

                            The primary error in Pebble was the misapplication of Pullen v. Ulmer.  

                                                                                                                                                                                     



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
  


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

                                                                44  

in its future allocation decisions."                                 In  Pebble  we applied this reasoning to conclude that                                      



the initiative's prohibition on harm to public waters would not be an appropriation                                                          

                                                                                                         45    But this conclusion does not  

because it was merely adding new regulatory criteria.                                                                                                            



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  

                                                                                                                                                           

              48    By doing so, the Pebble initiative crossed the line from permissible guiding  

waters.                                                                                                                                                  



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
  


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

                              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                                                                                                       

                                                                                                                                                                                     49    We  

delegates' intent that natural resource issues would be subject to the initiative.' "                                                                                                      

quoted Brooks v. Wright50  for this proposition, and then announced that "the prohibition  

                                                                                                                                                                          



againstinitiatives thatappropriatepublicassets does not extend toprohibitinitiatives 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
  


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

                                                53  

was an           appropriation.                        And   we recently have recognized that                                                 past initiatives that             



purported to "manage" natural resources - including the initiative at issue in                                                                                    Brooks  -  

                                                                                                                                                                 54    Second,  

may in fact have effected or sought to effect unconstitutional appropriations.                                                                                         



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
  


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

                      57  

of   another."              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     

                                                                                                        58   We instead stated a rule  

"overly narrow and literal reading" of                            Pebble  would suggest.                                                        



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" toor fromthatgroup. Theframework 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
  


----------------------- Page 23-----------------------

                           Finally, in           Pebble  weshouldnothavecharacterized                                              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                                                                                          

                                                          61     We then said that the initiative would "leave[] to the  

initiative an appropriation."                                                                                                                                               



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
  


----------------------- Page 24-----------------------

                                          64  

decisions.' "                                     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
  


----------------------- Page 25-----------------------

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  


----------------------- Page 26-----------------------

                                                                                                                                                                                                                         67  

In this case, the offending provisions are proposed AS 16.05.885(e)(3)                                                                                                                                                         and the third            



sentence of proposed AS 16.05.887(a) - from the word "Notwithstanding" to the end                                                                                                                                                                           

                                                    68  Without these provisions, the initiative no longer contains an explicit  

of subsection (a).                                                                                                                                                                                                                              



                    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
  


----------------------- Page 27-----------------------

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)            causesubstantial damagetoanadromousfish  

                                                                         

                              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
  


----------------------- Page 28-----------------------

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  



                             70  

 16.05.867                          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 AS16.05.885 [major permits]to mitigateadverse                                                                                               

                                       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 underthissubsection, restoretheaffectedanadromous                                                                                  

                                       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
  


----------------------- Page 29-----------------------

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  



removecertain permitting                             decisions fromthecommissioner's discretion, theseremaining                                               



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
  


----------------------- Page 30-----------------------

                                                                                       71  

render the initiative constitutionally permissible."                                       Interpreting the initiative broadly so                      



                                               72  

as to preserve it if possible,                                                                                                               

                                                  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  

                                                                               73  And the habitat protection standards can  

                                                                                                                                                    

protective measures or control technologies." 



            71          Pebble Ltd. Partnership v. Parnell                            , 215 P.3d 1064, 1076 (Alaska 2009)                       



(quoting  Boucher v. Engstrom                          , 528 P.2d 456, 462 (Alaska 1974),                              overruled on other        

grounds by McAlpine                    , 762 P.2d at 85).         



            72          See Hughes v. Treadwell, 341 P.3d 1121, 1125 (citing Pebble, 215 P.3d at  

                                                                                                                                                       

 1073).  



            73          For example, a proposed mine that would need to permanently displace  

                                                                                                                                           

some fish habitat to store mine waste or tailings might nonetheless be able to "limit" or  

                                                                                                                                                      

"minimize" the adverse effects of the project by constructing the dump site in a manner  

                                                                                                                                             

or location that would store waste more compactly in a smaller area - thus displacing  

                                                                                                                                        

less habitat; by restricting the amount of construction- and mining-related activity that  

                                                                                                                                     

takes place near fish habitat that will not ultimately be displaced; or by taking any  

                                                                                                                                      

number of other measures that the permit applicant or the commissioner might propose.  

                                                                                                                                           



                        The  partial  dissent  concludes  that  the  mitigation  requirements  would  

                                                                                                                                              

amount to an appropriation.  It does so because it reads proposed AS 16.05.887(b), in  

                                                                                                                                                       

light of the "if" statements that introduce subsections (b)(2) and (b)(3), as "requiring the  

                                                                                                                                                     

commissioner to require permittees to restore affected habitat" where adverse effects  

                                                                                                                                              

cannot  be  avoided,  thus  forbidding  the  commissioner  "from  issuing  a  permit  to  a  

                                                                                                                                                       

prospective permittee who wishes to use anadromous fish habitat for an activity that will  

                                                                                                                                                    

damage the habitat to the point it cannot be restored."  Partial dissent at 6-7.  But the  

                                                                                                                                                     

mitigation requirements of proposed AS 16.05.887(b) already apply only "if significant  

                                                                                                                                        

adverse effects cannot be avoided." See 17FSH2  7 (proposed AS 16.05.887(a)). Thus,  

                                                                                                                                                 

under the interpretation adopted by the partial dissent, any permitted project that is  

                                                                                                                                                       

subject to the mitigation requirement would automatically be required to "restore" the  

                                                                                                                                                     

affected fish habitat under subsection (b)(3), essentially reading subsections (b)(1) and  

                                                                                                                                                    

                                                                                                                                  (continued...)  



                                                                         -30-                                                                    7274
  


----------------------- Page 31-----------------------

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                                        

                                                                    74   But at this point, it is not necessary for us to  

enforced in every permitting decision.                                                                                                         



analyze and interpret these provisions in detail, beyond noting that they are open to a  

                                                                                                                                                      



range of reasonable and constitutionally permissible interpretations.  

                                                                                              



                       We also note that proposed AS 16.05.887(c) could be read in a way that  

                                                                                                                                                  



would amount to an impermissible appropriation.  This provision states:  

                                                                                                                                  



            73          (...continued)  



                                                                                                                                                    

(b)(2) out of the initiative entirely.  For this reason, the "if" statements must instead be  

                                                                                                                                       

read so that subsections (b)(2) and (b)(3) apply if mitigation efforts under the preceding  

                                                                                                                                                   

subsections could not prevent some adverse effects, rather than if such efforts would not  

                                                                                                                                                  

completely prevent adverse effects.  Interpreted thus, the requirement to "restore" fish  

                                                                                                                                           

habitat would only apply if it is not possible to either "limit" or "minimize" adverse  

effects.  



            74          The partial dissent disagrees, interpreting the habitat protection standards  

                                                                                                                                        

as requiring the commissioner to "preserve" various aspects of every individual fish  

                                                                                                                                                 

habitat subject to a permit application, and asking, "how could the commissioner permit  

                                                                                                                                             

a  project  that  will  destroy  anadromous  fish  habitat  and  still  'preserve'  that  habitat  

                                                                                                                                            

according to the habitat protection standards?"  Partial dissent at 4.  The answer is that  

                                                                                                                                                  

the  habitat  protection  standards  in  17FSH2  do  not  require  the  commissioner  to  

                                                                                                                                                    

"maintain" or "preserve" every listed aspect of the specific fish habitat in question, but  

                                                                                                                                                   

rather to "maintain" the listed aspects of anadromous fish habitat in Alaska as a whole.  

                                                                                                                                                          

And although there would be some tension between the commissioner's discretion to  

                                                                                                                                  

permit use of state waters and the commissioner's duty to maintain Alaska's anadromous  

                                                                                                                                   

fish habitat, this same tension already exists:   Article VIII, section 2 of the Alaska  

                                                                                                                                            

Constitutionprovidesthat"[t]helegislatureshall providefor theutilization, 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 inharmonizing reasonableharvesting ofthegameresources and their  

                                                                                                                                                 

conservation").  



                                                                        -31-                                                                   7274
  


----------------------- Page 32-----------------------

                                                                  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
  


----------------------- Page 33-----------------------

                                 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,                                                                                                         



                                                                                                                  76  

rather   than   to   be   invalidated   in   its   entirety."                                                                                                                                             

                                                                                                                          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, theinitiativein question would haveestablished a community  



                                                                                                                                    77  

                                                                                                                                                                                                       

 college system separate from the University of Alaska.                                                                                   The initiative would also have  



                                                                                                                                                                                              

required the University to transfer to the community colleges "such real and personal  



                                                                                                                                                                                      

property as is necessary totheindependent operation and maintenanceoftheCommunity  

                                           78    More specifically, however, the initiative provided that the amount  

                                                                                                                                                                                                 

 College System." 



 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
  


----------------------- Page 34-----------------------

                                                                                                    80  

precise articles or parcels to be transferred."                                                          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                                                                                           

                                                                                                    81     In other words, severing the offending  

to appropriations for community colleges."                                                                                                                                     



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
  


----------------------- Page 35-----------------------

"[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  

                                                                                                                                                



reenactingAS16.05.871) replaces thecurrentnotice-and-approval systemforfishhabitat  

                                                                                                                                            



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  


----------------------- Page 36-----------------------

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                                                                                                                                                                                                                                                                                                                                                     

                                                                                                                                                                                                                                                                                                                                                                    86              If the area has not been  

 for the spawning, rearing, or migration of anadromous fish."                                                                                                                                                                                                                                                                                                                                                                                                                                  



 specified as such, then no notice or approval is required.  If the project would affect a  

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



                                       86                                     AS 16.05.871(a).  

                                                                                                   



                                                                                                                                                                                                                                                   -36-                                                                                                                                                                                                                                        7274  


----------------------- Page 37-----------------------

specified river, lake, or stream, the project owners must notify the commissioner of their                                                      



                                87  

proposed   activity.                                                                                                                             

                                      Upon  receiving  notice,  the  commissioner  "shall  approve"  the  



                                                                                                                                                  

project, "unless the commissioner finds the plans and specifications insufficient for the  

                                                               88   This standard is not defined or explained in the  

                                                                                                                                                  

                                                    

proper protection of fish and game." 



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  

                                                                                                                                                 

                                               91   If no exemption is granted, the applicant must not only  

verifiable documentation."                                                                                                                     

                   



notify the commissioner, but also must submit a permit application that includes "all  

                                                                                                                                                 



information, plans and specifications necessarytoassesstheproposedactivity'spotential  

                                                                                                                                        

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
  


----------------------- Page 38-----------------------

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                                                                                       

                                                                                                                                                                                93    If the  

the potential to cause significant adverse effects on anadromous fish habitat."                                                                                                             



miningproject indeed requires permanentlydisplacingastream,thecommissioner 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
  


----------------------- Page 39-----------------------

would also be made public, with specific notice sent to all persons who made comments                                               



                                              99  

relating to the application.                                                                                                                 

                                                    Over the next 30 days, any interested party might seek  

                                                                   100   Only after any request for reconsideration is  

                                                                                                                                                   

                                                

reconsideration of the final assessment. 



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
  


----------------------- Page 40-----------------------

                                                                                                             102  

rather   than   to   be   invalidated  in  its  entirety.                                                             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
  


----------------------- Page 41-----------------------

WINFREE, Justice, dissenting in part.                             



                          I respectfully dissent only regarding the court's severance analysis.                                                               The  



court correctly concludes that aninitiativemaynotprevent                                                      thelegislaturefromallocating          

                                                                                    1  But the court then fails to properly apply  

specific public assets for specific purposes.                                                                               



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  

                                                                                                                                                            



                                                                                                                                                                     3  

which that habitat would not suffer 'substantial damage' as the initiative defines it."   

                                                                                                                                                               



The court explains further that: "If the habitat has been permanently displaced, it cannot  

                                                                                                                                                          



be 'likely' for that habitat to be restored within a 'reasonable period,' because it never  

                                                                                                

will."4        The court thus concludes that 17FSH2's provisions preventing the Department  

                                                                                                                                                



of Fish and Game (ADFG) from permitting a project that would substantially damage  

                                                                                                                                                        



             1            Op. at 14.     



             2            Op. at 28-31.  

                                       



             3            Op. at 15-16.     



             4  

                                       

                          Op. at 16.  



                                                                               -41-                                                                          7274
  


----------------------- Page 42-----------------------

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  

                                                 6  To this I respond:  How?  It is sophistry simply to "not[e] that [these  

interpretation."                                                                                                                                                                                                                                  



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  

                                                                                                                                                                                                                                                                       



                                                                                                                                                                                                                                                                      8  

we "construe voter initiatives broadly so as to preserve them whenever possible,"                                                                                                                                                                                         we  

                                                                                                                                                                                                                                                                          



must  actually  interpret  17FSH2's  challenged  provisions  before  we  can  pass  on  its  

                                                                                                                                                                                                                                                                          



                     5                     Op.  at   15-17.  



                     6                     Op.  at  28-29.  



                     7                     Op.  at  31.  



                     8                    Pullen  v.  Ulmer,  923  P.2d  54,  58  (Alaska  1996)  (quoting  City  of  Fairbanks  



v.  Fairbanks  Convention  &   Visitors  Bureau,  818  P.2d   1153,   1155  (Alaska   1991)).  



                                                                                                                                   -42-                                                                                                                             7274
  


----------------------- Page 43-----------------------

                                                                  9  

constitutionality.       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.                                                       



                                                    Thecourt                             errs first in its description ofthehabitat                                                                                                           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                                                                                                                                                                                                                        

                                                                                                                                                                                                                                                                                                                          10  But  

requirements to be strictly and individually enforced inevery permittingdecision."                                                                                                                                                                                                                                                

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 areunconstitutional appropriations -under our facialchallengeframework,                                                                                                                                                                                                              

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, anduse                                                                                                                                        

of it here seems to only "obscure and distract" from our focus on the two core objectives,                                                                                                                                                                                                            

in contrast to the court's painstaking and commendable efforts to refocus our analysis                                                                                                                                                                                                                          

earlier in its opinion.                         



                          10                        Op. at 29-30.  

                                                                              



                          11                        See City of Kenai v. Friends of Recreation Ctr., Inc., 129 P.3d 452, 458-59  

                                                                                                                                                                                                                                                                                                                    

(Alaska 2006) ("Interpretation of a statute begins with its text.").  

                                                                                                                                                                                                                                 



                                                                                                                                                                -43-                                                                                                                                                         7274
  


----------------------- Page 44-----------------------

a mandatory term in legislative drafting, meaning "is required to."                                                                         12  "Maintain" has a  



                                                                                            13  

similarly              fixed         meaning,                to     "preserve."                                                                                 

                                                                                                       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  


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