Tim Bradner

Tim Bradner is co-publisher of the Alaska Legislative Digest.





If you’re out shopping this weekend you’ll likely encounter people gathering signatures for “Stand for Salmon,” the petitions for a 2018 ballot proposition.

If you ask the signature gatherer what the initiative does you’ll hear something like “Stopping the Pebble Mine.” There’s a lot more to it.

People shoving clipboards in your face, many from the Lower 48 (they’re paid $1 a signature) can’t explain what Stand for Salmon really does – or that the legal validity o of the initiatives is still in court – but here’s a clue that it may not be good news: Rural Alaskans, including fishing groups who also oppose Pebble, don’t like this initiative or a bill in the Legislature, House Bill 199, that accomplished the same purpose.

What the initiative would do if the enough signatures are gathered, the courts uphold it and voters approve (or if HB 199 is passed) is to set up a stringent new state permitting system for habitat, and affect construction projects that touch streams or other water bodies. Highways, rural roads sewer and water systems, large and small hydro projects and, yes, mines, would all come under the new permits.

Opponents argue this would seriously complicate the regulatory system for new infrastructure at a time when Alaska is dogged by recession. Supporters, however, say it just updates habitat protections now in state law and sets out public notice procedures, something the state Board of Fisheries has urged.

Critics counter that those who wrote the initiative went far beyond the fisheries board’s recommendations to propose the new permit system.

HB 199 was introduced by Kodiak’s Sen. Louise Stuttes, a Republican, and Anchorage Rep. Andy Josephson, a Democrat, as a kind of backup if the initiative falters.

In September, Lt. Gov. Byron Mallott declined to certify the initiative. Sponsors of the initiative challenged Mallott in court and won in Superior Court. The state Department of Law appealed the superior court decision to the state Supreme Court, where it now sits. State attorneys have asked for a decision before the election ballots are printed next summer or early fall.

The law case centers on a point of constitutional law, whether the authority to allocate state assets rests solely with the Legislature, which the lieutenant governor feels is the case, and whether lawmakers alone decide how to allocate fish habitat among competing uses, which could make it an appropriation of assets.

The Legislature’s authority is clear when it comes to appropriations of money and even land, but whether a land-use decision, like regulation of fish habitat, can be done by an initiative and ballot proposition is less clear.

Alaska’s current habitat protection law, in Title 16, requires prior authorization from the habitat division of the Department of Fish and Game, or ADF&G, for any action affecting anadromous (fish bearing) habitat or streams. This includes road crossings, gravel extraction, mining, water withdrawals, use of equipment in water, bank stabilization, and other activities.

State fish and game habitat managers have flexibility to work with developers, for example with measures to mitigate adverse effects, and still allow the project to be built.

The initiative, however, would strait-jacket fisheries managers into a rigid system, for example — prohibiting some projects that have proposed impact mitigation.

Anchorage attorney Eric Fjelstad agrees with this. “Supporters characterize the initiative in the most benign way, saying it would simply give the Department of Fish and Game more tools to protect fish and game habitat,” Fjelstad wrote in an op-ed column.

It would alsoset up a more complex multi-tiered permitting system with procedures that seem to mimic a federal Environmental Impact Statement, with a public review period, required analysis of alternatives and an appeal process.

One important change the initiative would make is classifying every Alaska stream as anadromous, or salmon-bearing, and requiring the new permit, although many streams do not support salmon.

Opponents to the initiative say there’s fundamentally no problem with the state’s current protections for salmon, although there’s always room for improvement, such as in the public notice suggestions the fisheries board made. As for the initiative itself, and HB 199, “this is a solution in search of a problem” – meaning there are no serious problems with the present system – says Marleanna Hall, executive director of the Resource Development Council, a pro-development group.

State fish and game officials agree the initiative could throttle many construction projects.

“Major highway projects parallel to streams and rivers and often in close proximity to water bodies require extensive erosion control measures to keep the highway intact and passable. These types of projects have adverse effects on anadromous fish habitat and, therefore, could not be permitted,” said Al Ott, operations manager for ADF&G’s habitat division, in a deposition in a legal action the state has brought against the initiative.

“My interpretation of these provisions (in the initiative) is that we would not be able to permit larger hydro projects which by definition change (water) flows and alter natural and seasonal flow regimes,” Ott said.

Other mining projects, not just Pebble, would be affected. Ott said, “In my view the Donlin prospect mine would not be developed at all under this initiative.” Donlin Gold is a large gold mine under development in the middle Kuskokwim River region west of Anchorage that is owned by Alaska Native corporations in the area, The Kuskokwim Corp. and Calista Corp.

If the mine is hindered it could lose an opportunity to create hundreds of jobs in the 60 villages of the Yukon-Kuskokwim region of Southwest Alaska, now one of the state’s most economically-depressed regions.

Calista Corp. president Andrew Guy is pretty outspoken about his region: “Our communities need airport upgrades, village roads, water and sewer projects and the ability to grow. Our residents need jobs and business opportunities that resource development brings to rural Alaska.”  

Bristol Bay Native Corp. president Jason Metrokin shares those views, though he is no fan of Pebble, which BBNC fears could affect salmon streams and the Bristol Bay fishery.

Metrokin feels the region still needs to develop its economy and says the initiative would “unnecessarily and negatively impact resource development projects and potentially the subsistence activities upon which our shareholders depend," Metrokin wrote in a statement.

Existing infrastructure that supports rural communities would he affected, too. Wade Strickland, wastewater program manager in the Department of Environmental Conservation, is worried about the effects on rural water and sanitation projects in villages.

“Mixing zones” of effluent from wastewater systems are already prohibited in anadromous streams, Strickland told the Fisheries Committee of the state House in a hearing last April. Under the initiative, however, all streams are considered anadromous, or salmon-bearing, so village sanitation systems that are now permitted to use mixing zones in non-anadromous streams would be out of compliance and would have to be re-permitted, he said.

“Many communities statewide that discharge treated water to fresh water will likely need to engineer and fund improvements to their systems,” and the permitting will become more complex and expensive, Strickland said,.

However, there are tribal leaders as well as operators of sport fish lodges who support the initiative, along with several commercial fishing organizations, including the state’s largest, United Fishermen of Alaska.

Not all fishing groups are in agreement, however. In letters last April to the House Fisheries Committee David Harsila, president of the Bristol Bay Fishermen’s Association, and Anchorage attorney Geoffey Parker, who represents harvester groups, raised concerns over the rigidity of the proposed new permit system.

Both said there ways it could actually undercut the ability of the fish and game department to protect habitat, mainly by removing the flexibility the agency has under the current system.

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