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Press Release

State Appealing Salmon Initiative Ruling

October 20, 2017

(Anchorage, AK) – The State filed an appeal today to the Alaska Supreme Court in Stand for Salmon v. Mallott, a lawsuit over the constitutionality of proposed ballot initiative 17FSH2.

In September, the Lieutenant Governor, upon the recommendation of the Department of Law, declined to certify 17FSH2 because it made an unconstitutional appropriation of a state asset—anadromous fish and wildlife habitat—by initiative. Article XI, section 7 of the Alaska Constitution prohibits the making or repealing of appropriations by ballot initiative. The sponsors of 17FSH2 sued to overturn the Lieutenant Governor’s decision and obtain petition booklets for circulation throughout the state.

Earlier this month, Anchorage Superior Court Judge Mark Rindner granted summary judgment to plaintiffs, finding that 17FSH2 was a constitutional use of the initiative process. The judge directed the Lieutenant Governor to produce petition booklets for circulation.

As detailed in the Department of Law’s briefing to the superior court, the case presents a single question of constitutional law, namely the scope of the Legislature’s power to allocate state assets among competing uses and the limits of the initiative process. The State’s legal opinion is that 17FSH2—which revises permitting standards for activities that affect anadromous fish habitat—unconstitutionally infringes on the Legislature’s discretion to decide how to allocate that habitat among competing uses, thereby making it an impermissible appropriation by initiative.

“The question of whether a proposed ballot initiative makes an appropriation is an important constitutional question that should be answered by The Alaska Supreme Court,” said Attorney General Jahna Lindemuth.

“We take no position on whether 17FSH2 is good policy. This is about the superior court’s legal conclusion and our duty to defend the Alaska Constitution, and we believe the superior court got it wrong. The Alaska Supreme Court’s case law on initiatives prohibits the type of resource allocations that 17FSH2, by its terms, makes a foregone conclusion. The Legislature—and only the Legislature—can decide how to allocate this public asset among industry, fisheries, and other competing interests and uses.”

Petition booklets for 17FSH2 have been printed and delivered to sponsors. The State will request expedited consideration by the Alaska Supreme Court in order to provide clarity before ballots have to be printed for next year’s elections.

For more information, contact Assistant Attorney General Libby Bakalar at libby.bakalar@alaska.gov or 465-3600.

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