BYRON MALLOTT, LIEUTENANT GOVERNOR OF THE STATE OF ALASKA, and STATE OF ALASKA, DIVISION OF ELECTIONS, Appellants,
v.
STAND FOR SALMON, Appellee.
Appeal
from the Superior Court No. 3 AN- 17-09 183 CI of the State
of Alaska, Third Judicial District, Anchorage, Mark Rindner,
Judge.
Joanne
Grace, Elizabeth Bakalar, and Katherine Demarest, Assistant
Attorneys General, Anchorage, and Jahna Lindemuth, Attorney
General, Juneau, for Appellants. Katherine Strong and Valerie
Brown, Trustees for Alaska, Anchorage, for Appellee.
James
E. Torgerson and Tina M. Grovier, Stoel Rives LLP, Anchorage,
and Ryan P. Steen, Stoel Rives LLP, Seattle, Washington, for
Amici Curiae Alaska Oil and Gas Association and Resource
Development Council for Alaska, Inc. Matthew Singer and Lee
C. Baxter, Holland & Knight LLP, Anchorage, for Amicus
Curiae ANCSA Regional Association. Geoffrey Y. Parker, Law
Office of Geoffrey Y. Parker, Anchorage, for Amici Curiae
Bristol Bay Fishermen's Association and Ekwok Village
Council. Eric B. Fjelstad, James N. Leik, and Elena M.
Romerdahl, Perkins Coie LLP, Anchorage, for Amicus Curiae
Council of Alaska Producers.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
Carney, Justices.
OPINION
PER
CURIAM
I.
INTRODUCTION
The
Lieutenant Governor declined to certify a proposed ballot
initiative that would establish a permitting requirement for
activities that could harm anadromous fish habitat, reasoning
that the initiative effected an appropriation of state assets
in violation of article XI, section 7 of the Alaska
Constitution. The initiative sponsors filed suit, and the
superior court approved the initiative, concluding that the
proposal would not impermissibly restrict legislative
discretion. We conclude that the initiative would encroach on
the discretion over allocation decisions delegated to the
Alaska Department of Fish and Game by the legislature, and
that the initiative as written therefore effects an
unconstitutional appropriation. But we conclude that the
problematic sections may be severed from the remainder of the
initiative. Accordingly, we reverse the judgment of the
superior court and remand for the superior court to direct
the Lieutenant Governor to sever the offending provisions but
place the remainder of the initiative on the ballot.
II.
BACKGROUND
A.
Facts
In May
2017 the directors of the Alaska-based nonprofit organization
Stand for Salmon (the Sponsors) submitted an application for
an initiative entitled "An Act providing for protection
of wild salmon and fish and wildlife habitat," which the
Division of Elections denominated "17FSHB." After
reviewing 17FSHB, the
Department of Law concluded that the initiative effected an
appropriation in violation of article XI, section 7 of the
Alaska Constitution.[1] The Department found that the initiative
would restrict the legislature's ability to allocate
anadromous[2] fish habitat among competing uses by
"outright prohibit[ing] the use of anadromous waters for
certain development purposes." The Department thus
informed the Sponsors that it intended to recommend that the
Lieutenant Governor deny certification of 17FSHB.
Upon
receiving the Department of Law's analysis, the Sponsors
withdrew 17FSHB and filed a revised version of the initiative
in July, which the Division of Elections denominated
"17FHS2." Like its precursor, 17FSH2 proposes a
bill that would "amend, repeal, and reenact"
provisions of AS 16.05, which requires persons seeking to
engage in activities that could damage certain state waters
to first secure a permit from the Department of Fish and Game
(ADFG).[3] The initiative would expand this permit
requirement to cover all activities that "may use,
divert, obstruct, pollute, disturb or otherwise alter
anadromous fish habitat."[4] Under the proposed permitting
system, "major" permits would be required for
activities with "the potential to cause significant
adverse effects" to fish habitat, while
"minor" permits could be issued for projects that
would have little impact on such habitat.[5]
The
initiative enumerates requirements that would have to be
satisfied prior to issuance of a permit and establishes civil
and criminal penalties for anyone who "violates or
permits a violation of' the permitting scheme.
Additionally, Section 2 of the initiative would add the
following new section to AS 16.05:
See. 16.05.867. Fish and wildlife habitat protection
standards.
(a) The commissioner shall ensure the proper protection of
fish and wildlife, including protecting anadromous fish
habitat from significant adverse effects.
(b) When issuing a permit under AS 16.05.867-16.05.901, the
commissioner shall ensure the proper protection of anadromous
fish habitat by maintaining:
(1) water quality and water temperature necessary to support
anadromous fish habitat;
(2) instream flows, the duration of flows, and natural and
seasonal flow regimes;
(3) safe, timely and efficient upstream and downstream
passage of anadromous and native resident fish species to
spawning, rearing, migration, and overwintering habitat;
(4) habitat-dependent connections between anadromous fish
habitat including surface-groundwater connections;
(5) stream, river and lake bank and bed stability;
(6) aquatic habitat diversity, productivity, stability and
function;
(7) riparian areas that support adjacent fish and wildlife
habitat; and
(8) any additional criteria, consistent with the requirements
of AS 16.05.867-AS 16.05.901, adopted by the commissioner by
regulation.
(c) The commissioner is authorized, in accordance with AS
44.62, to adopt regulations consistent with AS
16.05.867-16.05.901. All regulations, administrative actions
and other duties carried out under this chapter shall be
consistent with and in furtherance of the standards set out
in this section.
The
initiative also enumerates certain circumstances in which a
permit "may not be granted." Section 7 of the
initiative would add a new section to AS 16.05 that reads in
part:
See. 16.05.887. Permit conditions and mitigation
measures.
(a) The commissioner shall prevent or minimize significant
adverse effects to anadromous fish habitat. . . . [A]n
anadromous fish habitat permit may not be granted for an
activity that will:
(1) cause substantial damage[6] to anadromous fish habitat
under AS 16.05.877(b);
(2) fail to ensure the proper protection of fish and
wildlife;
(3) store or dispose of mining waste, including overburden,
waste rock, and tailings in a way that could result in the
release or discharge of sulfuric acid, other acids, dissolved
metals, toxic pollutants, or other compounds that will
adversely affect, directly or indirectly, anadromous fish
habitat, fish, or wildlife species that depend on anadromous
fish habitat;
(4) replace or supplement, in full or in part, a wild fish
population with a hatchery-dependent fish population;
(5) withdraw water from anadromous fish habitat in an amount
that will adversely affect anadromous fish habitat, fish, or
wildlife species; or
(6) dewater and relocate a stream or river if the relocation
does not provide for fish passage or will adversely affect
anadromous fish habitat, fish, or wildlife species.
Mirroring
the first subsection quoted above, the major permitting
scheme outlined in Section 6 of the initiative includes the
following provision:
See. 16.05.885. Major anadromous fish habitat
permit.
(e) The commissioner may issue a major permit to an applicant
only if:
(3) the activity, as authorized by the written permit
determination, will not cause substantial
damage[7] to anadromous fish habitat under AS
16.05.877(b)....
Section 5 of the initiative (proposed AS 16.05.877(b)) would
require ADFG when evaluating a proposed activity to find that
it will cause "substantial damage" to anadromous
fish habitat - thus precluding that activity from receiving a
permit - when:
[D]espite the application of scientifically proven, peer
reviewed and accepted mitigation measures under AS 16.05.887,
the anadromous fish habitat will be adversely affected such
that it will not likely recover or be restored within a
reasonable period to a level that sustains the water
body's, or portion of the water body's, anadromous
fish, other fish, and wildlife that depend on the health and
productivity of that anadromous fish habitat.
The
Department of Law reviewed the revised initiative and again
concluded that it would effect an appropriation. It found
that like 17FSHB, 17FSH2 would "effectively preclude
some uses [of anadromous fish habitat] altogether,"
therefore "leaving insufficient discretion to the
legislature to determine how to allocate those state
assets." The Department thus recommended that the
Lieutenant Governor decline to certify the application.
Relying on the Department's analysis, the Lieutenant
Governor declined to certify 17FSH2 in September 2017.
B.
Procedural History
The
Sponsors filed suit that same month challenging the
Lieutenant Governor's conclusion and seeking a
preliminary injunction to allow immediate circulation of the
initiative for voter signatures. At the parties' request,
the superior court converted the preliminary injunction
motion into cross motions for summary judgment.
The
Sponsors argued that "an initiative may regulate
activities - even to the point where the activities may be
prohibited - so long as the Legislature retains discretion in
implementing the initiative's provisions." They
further argued that 17FSH2 is a "permissible regulatory
initiative" because "its manifest intent is to
protect and preserve fish and wildlife habitat, it does not
target any one use, and it retains discretion in the
Legislature." The Lieutenant Governor and the Division
of Elections (collectively, the State) contended that 17FSH2
would "preclude[] the use of even a single waterway for
a major development project," unconstitutionally
"depriv[ing] the legislature of authority to allocate
fish streams among competing uses." The State recognized
that the initiative does not expressly prohibit "the
alteration of streams for major development projects,"
but argued that a restriction of legislative discretion
"need not be express to render it
unconstitutional."
The
superior court held oral argument on October 3, 2017. On
October 9, the court issued an order granting the
Sponsors' motion for summary judgment and denying the
State's cross-motion. The court characterized the
"central disagreement" between the parties as
concerning "whether 17FSH2 is a permissible regulation
or an allocation of public assets that impermissibly limits
legislative discretion." Rejecting the State's
argument, the court likened 17FSH2 to the initiative we
upheld in Pebble Ltd. Partnership v. Parnell,
[8] and
concluded that the initiative "leaves the legislature
discretion in its implementation through the use of a
plethora of undefined terms." Because the court
concluded that 17FSH2 is constitutionally permissible, it
ordered the Lieutenant Governor to print petition booklets as
required by statute.
The
State appeals. Amicus briefs supporting the State's
position were submitted by the Alaska Oil and Gas Association
and Resource Development Council for Alaska, Inc.; by the
ANCSA Regional Association; by the Bristol Bay
Fishermen's Association and the Ekwok Village Council;
and by the Council of Alaska Producers.[9]
III.
STANDARD OF REVIEW
We
review questions of law, including the constitutionality of a
ballot initiative and the meaning of the constitutional term
"appropriation," using our independent judgment,
adopting the rule of law that is most persuasive in light of
precedent, reason, and policy.[10] "When reviewing
initiatives, we 'construe voter initiatives broadly so as
to preserve them whenever possible. However, initiatives
touching upon the allocation of public revenues and assets
require careful consideration because the constitutional
right of direct legislation is limited by the Alaska
Constitution.'[11]
IV.
DISCUSSION
A.
The Alaska Constitution Prohibits The Use Of An Initiative To
Usurp Or Encroach On The Legislature's Sole Authority To
Allocate State Resources.
For
more than two centuries, Alaska's economy has been
centered around the development and harnessing of its natural
resources, from the fur trade of the 18th and 19th Centuries
and the gold rushes of the 1890s, to the growth of copper
mining and commercial fishing in the early 20th Century and
the oil discoveries of the 1950s and 1960s. The need for
responsible management of Alaska's natural resources to
promote economic self-sufficiency in light of competing
interests is reflected in article VIII, section 1 of the
Alaska Constitution, which states that "[i]t is the
policy of the State to encourage the settlement of its land
and the development of its resources by making them available
for maximum use consistent with the public interest."
The
Alaska Constitution also grants Alaskans a broad right to
self-government through the use of the ballot initiative to
"propose and enact laws."[12]However, article XI,
section 7 contains several express limitations on the power
of the ballot initiative, including that "[t]he
initiative shall not be used to . . . make or repeal
appropriations."[13] The Alaska Constitution does not
provide any definition of the term "appropriation,"
so it has been the duty of this court to distinguish between
initiatives that permissibly regulate and those that
impermissibly appropriate.
In some
cases, that task has been a simple one. In Thomas v.
Bailey, we concluded that an initiative that would
transfer 3 0 million acres of state land to individual
residents was an unconstitutional appropriation because it
was exactly the type of"give-away" program the
delegates at the constitutional convention wanted to
prohibit.[14] We later applied the same reasoning to
invalidate a ballot initiative that would require the
Municipality of Anchorage to sell a municipally-owned utility
worth nearly $33 million to a private non-profit organization
for one dollar.[15]
But not
all appropriation cases have involved this kind of blatant
giveaway. In McAlpine v. University of Alaska, we
noted that "the more typical appropriation involves
committing certain public assets to a particular
purpose."[16] "The reason for prohibiting
appropriations by initiative," we explained, was
"to ensure that the legislature, and only the
legislature, retains control over the allocation of state
assets among competing needs."[17] On that basis, we
concluded that an initiative that would establish a separate
community college system and require the University of Alaska
to transfer a particular amount of property to the new system
was an impermissible appropriation.[18] By contrast, in City
of Fairbanks v. Fairbanks Convention & Visitors
Bureau, we upheld an initiative that repealed a
dedication of municipal bed tax revenues and set the revenues
aside for the city's discretionary fund because it
"[did] not reduce the [city] council's control over
the appropriations process," but rather "allow[ed]
the council greater discretion in appropriating funds than
[did] the current law."[19]
In
Pullen v. Ulmer, we distilled from this case law
"two core objectives of the constitutional prohibition
on the use of initiatives to make appropriations":
"First, the prohibition was meant to prevent an
electoral majority from bestowing state assets on itself.
Second, the prohibition was designed to preserve to the
legislature the power to make decisions concerning the
allocation of state assets.,, [20]
These
core objectives have been the foundation of our appropriation
analysis.[21] But we have occasionally explained the
test for evaluating those objectives in different terms
depending on the context. In some cases we explained that an
initiative effects an appropriation when it "would set
aside a certain specified amount of money or property for a
specific purpose or object in such a manner that it is
executable, mandatory, and reasonably definite with no
further legislative action."[22] In others we explained
that the "primary question" is "whether the
initiative narrows the legislature's range of freedom to
make allocation decisions in a manner sufficient to render
the initiative an appropriation."[23] In still
others we explained that "the line between an
unobjectionable initiative that deals with a public asset and
one that is an impermissible appropriation is crossed
'where an initiative controls the use of public assets
such that the voters essentially usurp the legislature's
resource allocation role.' "[24] These stated
tests have been useful in explaining why particular
initiatives amounted to impermissible appropriations, but
they also obscure and distract from a focus on the core
objectives of the anti-appropriations clause.
Our
prior opinions repeatedly reaffirm the two core objectives by
emphasizing the importance of preserving the
legislature's authority over allocation decisions. In
Pullen, we concluded that an initiative creating an
allocation preference of salmon stock to non-commercial
fishers was an appropriation both because those groups were
"specifically targeted to receive state assets,"
and because "the initiative [would] significantly
reduce[] the legislature's and Board of Fisheries'
control of and discretion over allocation
decisions."[25] In Staudenmaier v. Municipality of
Anchorage, citing the "two parallel purposes"
of the anti-appropriations clause, we found unconstitutional
an initiative that would have forced the Municipality to sell
a municipal electric utility within one year.[26] And in
Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula
Borough, we held that an initiative that required prior
voter approval for all Borough capital projects with a total
cost of more than one million dollars was an impermissible
appropriation: we reasoned that "the voters' ability
to veto a capital project, even prior to budget approval,
infringes on the assembly's ability to allocate resources
among competing uses because there is nothing that the
assembly can do to appropriate money for that
project."[27] Most recently, in Lieutenant
Governor v. Alaska Fisheries Conservation Alliance,
Inc., we held that a ballot initiative that would have
banned commercial set net fishing in nonsubsistence areas was
a prohibited appropriation.[28] We did so both because the
initiative would be a "give-away program"
benefitting all fisheries except commercial set netters and
because it would "narrow the legislature's and Board
of Fisheries' range of freedom in making allocation
decisions" so that "neither the legislature nor the
Board would be able to allocate any salmon stock to
[commercial set netters]."[29]
When
determining whether an initiative effects an appropriation,
the proper analysis should focus on the two core objectives
we have identified. An initiative is an impermissible
give-away program if it transfers state assets into private
hands.[30] An initiative also effects an
appropriation if it infringes on the legislature's
ability to allocate resources among competing uses - that is,
if it fails "to ensure that the legislature, and
only the legislature, retains control over the
allocation of state assets among competing
needs"[31] - by forcing the legislature to make a
particular allocation decision in the future[32] or by
removing certain allocation decisions from the
legislature's range of discretion.[33]
B.
17FSH2 Makes An Impermissible Appropriation Because It
Explicitly Bars ADFG From Making Certain Allocation
Decisions.
With
our prior case law in mind, it is clear that 17FSH2 narrows
the legislature's range of discretion to make decisions
regarding how to allocate Alaska's lakes, streams, and
rivers among competing needs. Under both the current law and
the permitting scheme created by 17FSH2, the ADFG
commissioner is charged with managing the responsible use of
waterways and fish habitat. But 17FSH2 contains two
provisions that explicitly restrict the commissioner's
discretion to make allocation decisions.
Proposed
AS 16.05.885(e)(3) provides that the commissioner "may
issue a major permit to an applicant only if... the activity,
as authorized by the written permit determination, will not
cause substantial damage to anadromous fish habitat."
Proposed AS 16.05.877(b) also explicitly directs the
commissioner to find that an activity does cause
"substantial damage" if
despite the application of scientifically proven, peer
reviewed and accepted mitigation measures ... the anadromous
fish habitat will be adversely affected such that it will not
likely recover or be restored within a reasonable period to a
level that sustains the water body's, or portion of the
water body's, anadromous fish, other fish, and wildlife
that depend on the health and productivity of that anadromous
fish habitat.
The
Sponsors argue that because this provision contains a number
of undefined terms - such as "adverse effects,"
"likely," and "reasonable period" - it
leaves ADFG and the legislature interpretive discretion and
therefore discretion to make allocation decisions as they see
fit. But where a project like a mine or hydroelectric dam
would permanently, and perhaps irreversibly, displace fish
habitat, there is no reasonable interpretation under which
that habitat would not suffer "substantial damage"
as the initiative defines it. If the habitat has been
permanently displaced, it cannot be "likely" for
that habitat to be restored within a "reasonable
period," because it never will be restored.
Similarly,
proposed AS 16.05.887(a) provides in relevant part that
"an anadromous fish habitat permit may not be
granted" for activities that would affect fish habitats
in various specific ways listed in six subsections. The
parties dispute how to interpret particular subsections, but
in each case, it is apparent that there will be some
activities that cannot by any reasonable interpretation of
the initiative's language be excluded from this
prohibition.
To be
clear, these provisions are not problematic because they are
too clearly defined; rather, they are problematic
because-however they are interpreted- they bar the
commissioner from granting a permit to a project that would
"cause substantial damage" or have one of the
listed effects, even if in the commissioner's - or the
legislature's - considered judgment the public benefits
of that particular project outweigh its effects on fish
habitat. By doing so, the initiative "encroaches on the
legislative branch's exclusive 'control over the
allocation of state assets among competing needs'
"[34] by removing certain allocation decisions
from the legislature's range of discretion.
Although
17FSH2 indeed contains a "plethora of undefined
terms," as the superior court put it, that would give
the legislature and ADFG some discretion in how to implement
the initiative, this only goes so far. The undefined terms
give the legislature the interpretive discretion to decide
how much allocation discretion the initiative takes away, but
under any reasonable interpretation, the initiative would
place at least some projects outside the commissioner's
discretion to permit. The legislature's discretion to
interpret the initiative's provisions might affect the
severity, but not the fact, of the initiative's
infringement on the legislature's authority over
allocation decisions.
C.
Our Appropriation Analysis In Pebble Ltd. Partnership v.
Parnell Was Dictum And Is Neither Binding Precedent Nor
Persuasive.
We
recognize that our decision in this case may seem at odds
with our prior decision in Pebble Ltd. Partnership v.
Parnell.[35] The initiative in that case would have
prohibited any permits or authorizations for a "large
scale metallic operation" that would release toxic
pollutants in an amount that would "effect [sic] human
health or welfare or any stage of the life cycle of
salmon."[36] The case presented two questions: how to
interpret the initiative, and whether the initiative would
constitute an appropriation. The superior court construed the
word "effect" as used in the initiative to mean
"adversely affect" to avoid the implication that
the initiative would also prohibit beneficial and neutral
effects; we did the same.[37] We then concluded that
although the Pebble initiative would have restricted
the legislature from allowing projects that adversely
affected public waters, [38] that did not constitute an
appropriation because the initiative would "leave[] to
the legislature, the Department of Environmental
Conservation, and the Department of Natural Resources the
discretion to determine what amounts of specific toxic
pollutants may or may not be discharged."[39] But the
entirety of our appropriations discussion in
Pebble-beyond interpreting the initiative's
language-was unnecessary because the parties to the case
agreed that, as interpreted, the initiative would not
constitute an appropriation.[40] In the absence of an actual
dispute, our discussion was therefore dictum.[41] And though we
may follow dicta when persuasive, Pebble's
reasoning is anything but.
The
primary error in Pebble was the misapplication of
Pullen v. Ulmer.[42] In Pullen we reasoned
that an initiative directing the Board of Fisheries to
"reserve a priority for the harvest needs of common
consumptive uses for each salmon stock, to the extent that is
technically possible," would be an unconstitutional
appropriation because it would "call[] for an actual
allocation, in the event of a shortage of a given salmon
species in a given geographical region, to sport, personal
use, and subsistence fisheries."[43] We reached
this conclusion in part by comparing the initiative to a
presumably constitutional hypothetical initiative that would
"simply amend[] 'a series of general legislative
criteria to add more specific ones to guide the Board of
Fisheries in its future allocation
decisions."[44] In Pebble we applied this
reasoning to conclude that the initiative's prohibition
on harm to public waters would not be an appropriation
because it was merely adding new regulatory
criteria.[45] But this conclusion does not follow from
its premise. The whole point of Pullen's
comparing the initiative to hypothetical criteria was that
the hypothetical criteria would not restrict the
legislature's ultimate resource allocation
freedom.[46] We made it clear in Pullen that
we could not interpret the initiative as permissible
guiding criteria precisely because the initiative
would "call[] for an actual allocation, in the event of
a shortage of a given salmon species in a given geographical
region, to sport, personal use, and subsistence
fisheries."[47] But the Pebble initiative
sought to do precisely that, in the inverse, by forbidding
the legislature from allocating any assets to projects that
"adversely affect[ed]" public waters.[48] By doing so,
the Pebble initiative crossed the line from
permissible guiding criteria, where ultimate discretion is
retained by the legislature, to impermissible appropriation,
where the legislature is forbidden from using specific public
assets for specific purposes. It was therefore wrong to rely
on Pullen to characterize a complete prohibition on
certain uses of public assets as a permissible initiative.
It was
also wrong in Pebble to rely on new legal standards
for so-called "regulatory" initiatives. We stated
in Pebble that "the legislative history of the
drafting of the Alaska Constitution and the language of the
constitution itself 'evidences the delegates' intent
that natural resource issues would be subject to the
initiative.' "[49] We quoted Brooks v.
Wrighf[50] for this proposition, and then announced
that "the prohibition against initiatives that
appropriate public assets does not extend to prohibit
initiatives that regulate public assets, so long as
the regulations do not result in the allocation of an asset
entirely to one group at the expense of
another."[51] We applied this rule to conclude that
the Pebble initiative would not be an appropriation
because it would "prohibit[] harm to public assets while
permitting the use of public assets and exhibiting no
explicit preference among potential
users."[52] The legal foundations of this analysis
are shaky at best; there is little to no basis in our case
law, and certainly none in the constitution, for
distinguishing between "regulatory" initiatives and
other initiatives. And the reasoning provided in defense of
the distinction is not persuasive.
First,
in Brooks we were deciding only whether the
initiative process was "clearly inapplicable" to
natural resource issues, and we did not address whether the
initiative in that case (which would have banned the use of
snares for trapping wolves) was an
appropriation.[53] And we recently have recognized that
past initiatives that purported to "manage" natural
resources - including the initiative at issue in
Brooks - may in fact have effected or sought to
effect unconstitutional appropriations.[54] Second, the
rationale that a regulatory initiative is not an
appropriation when it "prohibits harm to public
assets" is wholly unpersuasive.[55] As this case shows, an
initiative that does nothing but "prohibit harm"
can result in the complete lock-up of a public resource for a
minimum of two years.[56] Third, any initiative dealing with
natural resources can plausibly be characterized as
"regulating" them, so drawing a dividing line
between regulatory initiatives and other types of initiatives
seems not only difficult, but ultimately futile. We therefore
were wrong in Pebble to say that the initiative
would not be an appropriation simply because it regulated
natural resources.
We also
were incorrect to reason that the Pebble initiative
would not be an appropriation because it did not allocate
public assets to or from a user group. We announced in
Pebble that "the prohibition against
initiatives that appropriate public assets does not extend to
prohibit initiatives that regulate public assets, so long as
the regulations do not result in the allocation of an asset
entirely to one group at the expense of
another."[57] We then had to clarify this rule in
Lieutenant Governor v. Alaska Fisheries Conservation
Alliance, Inc. by explaining that an initiative is not
permissible merely because it redistributes assets from
one user group to many diffuse users, as an
"overly narrow and literal reading" of
Pebble would suggest.[58] We instead stated a rule that
"an initiative may constitute an appropriation if it
results in the complete reallocation of an asset
from a significant, distinct user
group."[59] This "user group" analysis is
untethered from the constitution and our analysis of the two
core objectives. It focuses on identifying a
"significant, distinct user group" and asking
whether an initiative would allocate assets
"completely" to or from that group. The framework
thus improperly shifts our focus from evaluating the
legislature's ability to allocate and manage public
assets as it deems fit to defining relevant user groups and
evaluating the legislature's ability to allocate public
assets to these user groups. For instance, if an initiative
completely eliminated the legislature's ability to
allocate assets to large mining projects, but not to small
mining projects, Pebble's constitutional
analysis would turn on whether "mining projects" or
"large mining projects" constitute the relevant
user group. But either way the initiative would compromise
the legislature's resource-allocation prerogative, so any
such analysis is beside the point.[60]
Finally,
in Pebble we should not have characterized
legislative "discretion" as dependent on undefined
terms. We centered our appropriations inquiry in
Pebble on the extent to which the initiative would
restrict legislative discretion, explaining: "The
primary question before us, therefore, is whether the
initiative narrows the legislature's range of freedom to
make allocation decisions in a manner sufficient to render
the initiative an appropriation."[61] We then said
that the initiative would "leave[] to the legislature...
the discretion to determine what amounts of specific toxic
pollutants may or may not be discharged at a mining
site."[62] This reasoning suggested that the
legislature retained discretion because it could define
"adversely affect" as it preferred. But the
legislative "discretion" to define terms is not the
discretion mandated by the constitution, which vests
all appropriation power in the
legislature.[63] The legislature does not truly retain
control over public assets if the voters may forbid it from
using those assets in a particular manner; such a restriction
on the legislature's allocation freedom cannot be
characterized as "simply amending 'a series of
general legislative criteria to add more specific ones to
guide the [legislature] in its future allocation
decisions.' "[64] We were therefore wrong in
Pebble to conclude that the legislature retained
sufficient "discretion" simply because the
initiative contained some undefined terms.
To
follow Pebble to its logical conclusion would be to
allow any initiative regulating public assets to go before
the voters so long as it would not wholly usurp the
legislature's allocation function. But that is not where
the delegates intended to draw the line between permissible
regulation and impermissible appropriation. Instead, an
initiative must leave to the legislature ultimate
decision-making authority to use specific public assets for
specific purposes. Because 17FSH2 would completely prevent
the legislature from permitting projects that result in the
permanent destruction of anadromous fish habitat, the
initiative constitutes an unconstitutional appropriation as
written.
D.
The Offending Provisions Of 17FSH2 Can Be Severed,
Preserving the Remainder Of The
Initiative To Go Before The Voters.
Although
we conclude that 17FSH2 as written is unconstitutional, that
is not the end of the analysis. Rather than simply
invalidating the entire initiative by reversing the superior
court's decision and upholding that of the Lieutenant
Governor, we must evaluate whether the offending provisions
can be severed from the initiative.[65] 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]
In this
case, the offending provisions are proposed AS
16.05.885(e)(3)[67] and the third sentence of proposed AS
16.05.887(a) - from the word "Notwithstanding" to
the end of subsection (a).[68] Without these provisions, the
initiative no longer contains an explicit 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," 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 16.05.8
87(b)[69]require that "at a minimum,"
the affected habitat be restored and that "of course,
the affected fish habitat cannot be restored when an activity
would permanently displace the habitat." The State also
argues that the "habitat protection standards" of
proposed AS 16.05.867[70] prohibit ADFG from permitting any
project that fails to "maintain" those standards,
and that this again acts as a complete bar to granting
permits to projects that would permanently displace fish
habitat.
But
unlike the offending provisions discussed above, which
explicitly remove certain permitting decisions from the
commissioner's discretion, these remaining provisions are
open to reasonable interpretation. Although they might amount
to an appropriation if we interpreted them in the light most
favorable to concluding that they do, "[w]hen one
construction of an initiative would involve serious
constitutional difficulties, that construction should be
rejected if an alternative interpretation would render the
initiative constitutionally permissible."[71] Interpreting
the initiative broadly so as to preserve it if possible,
[72]
it would not be unreasonable to conclude that even a project
that permanently displaces habitat could "limit adverse
affects of the activity on anadromous fish habitat by
changing the siting, timing, procedure, or other manageable
qualities of the activity," or "minimize the
adverse effects of the activity by limiting the degree,
magnitude, duration, or implementation of the activity,
including implementing protective measures or control
technologies."[73] And the habitat protection standards can
reasonably be interpreted as a collective set of broad goals
for the commissioner to strive for as a general matter, as
opposed to discrete requirements to be strictly and
individually enforced in every permitting
decision.[74] But at this point, it is not necessary
for us to analyze and interpret these provisions in detail,
beyond noting that they are open to a range of reasonable and
constitutionally permissible interpretations.
We also
note that proposed AS 16.05.887(c) could be read in a way
that would amount to an impermissible ...