Last week the Alaska Supreme Court decided that an initiative – citizen-sponsored legislation – that would have barred non-subsistence set-netting for salmon was an unconstitutional appropriation of a natural resource. The Court continues to flop around like a gaffed halibut on a critical issue of law: what can be done through citizen legislation, and what can’t.
Some background for the non-lawyers among WC’s readers. Citizen legislation is one of the checks and balances on runaway government. Alaska has three kinds of citizen legislation:
- Initiative, laws written by citizens, approved by the voters, without the involvement of the Alaska Legislature.
- Referendum, the repeal of laws enacted by the Alaska Legislature by the voters.
- Recall, the removal of elected officials by citizen vote before the expiration of the politician’s terms.
Alaska’s constitutional delegates limited the power of citizen legislation.[^1] Citizens aren’t permitted to offer initiatives or referenda on certain subjects. The Alaska Constitution, at Article 11, section 7:
The initiative shall not be used to dedicate revenues, make or repeal appropriations, create courts, define the jurisdiction of courts or prescribe their rules, or enact local or special legislation. The referendum shall not be applied to dedications of revenue, to appropriations, to local or special legislation, or to laws necessary for the immediate preservation of the public peace, health, or safety.
Those limits appear to be sensible enough, but the devil, as ever, is in the details. The Alaska Supreme Court has really struggled with what is and is not a forbidden “appropriation” for purposes of initiative. The struggle is evident in these two sentences, which are back to back in the most recent case:
Although “[w]e ‘construe voter initiatives broadly so as to preserve them whenever possible . . .’ [a]nd ‘we liberally construe constitutional and statutory provisions that apply to the initiative process,’ ” we “careful[ly] consider” “whether an initiative complies with article XI, section 7’s limits.”
In the initiative context, we have construed the term “appropriation” broadly, looking to the intentions of the delegates at the Alaska Constitutional Convention for interpretive guidance. We have concluded that the delegates had “two core objectives” in mind when they drafted the prohibition on appropriation by initiative: “(1) ‘to prevent give-away programs that appeal to the self-interest of voters and endanger the state treasury,’ and (2) ‘to preserve legislative discretion by ensur[ing] that the legislature, and only the legislature, retains control over the allocation of state assets among competing needs.’ ”
In the first paragraph, the court says it will try to preserve the citizens’ right it initiative wherever possible; in the second, the court says it will interpret “appropriation” broadly, which has the effect of narrowing the citizen right to initiative. The court pays lip service to the widest possible initiative power, and then firmly closes the door.
All of which takes us to Lieutenant Governer of the State of Alaska v. Alaska Fisheries Conservation Alliance, Inc., this past Thursday’s decision. Alaska Fisheries Conservation Alliance wanted to ban set net fishing for non-subsistence uses. The proposed initiative was careful to state it wasn’t allocating the resource:
Nothing in this section shall be construed as a limitation on the legislature’s or the Board of Fisheries’ discretion to allocate fish among competing users.
AFCA was trying to be careful not to make a prohibited “appropriation” of fish, which would have been a violation of the Alaska Constitution.
Justice Bolger, writing for a unanimous court, held that despite the disclaimer, AFCA’s proposed initiative was a prohibited appropriation. To do so, he had to thread his way through the maze of inconsistent earlier decisions. In one of the more recent cases,[^2] the Court had held:
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.
Now a sensible person might say that the AFCA initiative would have been at the expense of one group – set netters – but that all other fisherpersons everywhere really couldn’t be called a “group.” So the AFCA initiative wouldn’t allocate fish to “one group at the expense of another.” But Justice Bolger and the Alaska Supreme Court decided that “everyone else” was “one group,” and that the AFCA initiative was therefore an unconstitutional “appropriation.”
The problem with the holding, of course, is that it has the practical effect of prohibiting any initiative involving a natural resource. All natural resources are finite, there are always competing demands for them, and any allocation of a natural resource will involve one group losing and everyone else winning. What’s important is that there are at least five earlier cases in which the Alaska Supreme Court allowed initiatives to go forward that involved appropriation of natural resources; three of them even involved fish.
Justice Bolger avoids that awkward fact by pointing out that in those cases the question of whether the initiatives were prohibited “appropriations” didn’t come before the court; the cases were there on other issues. The late, great Ambrose Bierce had a useful parable on this point:
A Defective Petition
An Associate Justice of the Supreme Court was sitting by a river when a Traveler approached and said:
“I wish to cross. Will it be lawful for me to use this boat?
“It will,” was the reply. “It is my boat.”
The Traveler thanked him, and pushing to boat into the water embarked and rowed away. But the boat sank and the Traveler was drowned.
“Heatless man,” said an Indignant Spectator. “Why did you not tell him your boat has a hole in it?”
“The matter of the boat’s condition,” said the great jurist, “Was not brought before me.”
So Justice Bolger is raising the Bierce Defense to the latest flip-flop by the Court. In the short term, the decision in Alaska Fisheries is an alarming limitation on the rights of citizens to make legislation. But in the middle term, WC thinks it is likely that the Court will flip-flop again, further clouding and confusing the law in this area. The long line of cases in this area cannot be reconciled. The Court has simply been purposive – interpreting the law to get the results it wants – too many times.
Unfortunately, the legal uncertainty it has created has had a chilling effect. Someone always opposes a proposed initiative. When the law is unclear, there’s good reason to go to court. So unless the initiative sponsors can afford a trip to the Alaska Supreme Court, there’s no point in starting. And litigation is hideously expensive. You bet it’s chilling. And another check and balance has gotten compromised.
[^1]: The Alaska Legislature intensely dislikes citizen legislation as well. It has raised the signature requirements for a petition to get an initiative on a statewide ballot at every opportunity. The Legislature has moved the requirements from “difficult” to “damn near impossible” in recent years.
[^2]: Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, which would have prevented construction of Pebble Mine.