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Pullen v. Ulmer (8/26/96), 923 P 2d 54
<![CDATA[
NOTICE: This opinion is subject to correction before publication in
the Pacific 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) 264-0607; fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
HARVEY PULLEN and UNITED )
FISHERMEN OF ALASKA, INC., ) Supreme Court No. S-7642
)
Appellants, ) Superior Court No.
) 1JU-95-2385 CI
v. )
) O P I N I O N
FRAN ULMER, Lieutenant )
Governor of the State of ) [No. 4394 - August 26, 1996]
Alaska, FAIRNESS IN SALMON )
HARVEST, INC., )
)
Appellees. )
______________________________)
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
Larry Weeks, Judge.
Appearances: Arthur S. Robinson, Robinson,
Beiswenger & Ehrhardt, Soldotna, for
Appellants. Avrum M. Gross and Susan A.
Burke, Gross & Burke, Juneau, for Appellee
Fairness in Salmon Harvest, Inc., Sarah J.
Felix, Assistant Attorney General, and Bruce
M. Botelho, Attorney General, Juneau, for
Appellee Fran Ulmer.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
RABINOWITZ, Justice.
COMPTON, Chief Justice, concurring.
I. INTRODUCTION
Pullen and United Fishermen of Alaska, Inc. challenge an
initiative designed to set priorities among different salmon
harvest users.
II. FACTS AND PROCEEDINGS
In August of 1995, Appellee Fairness in Salmon Harvest,
Inc. (F.I.S.H.) submitted an initiative application to the state.
(EN1) The proposed initiative provided that subsistence, personal
use, and sport fisheries would receive a preference to take a
portion of the salmon harvest before the remaining harvestable
salmon are allocated to other harvest users. The proposed
initiative also sets a limit on the amount to be allocated to
personal use and sport fisheries of five percent of the total
projected statewide salmon harvest, though this limit may be
exceeded for any particular species or region.
The F.I.S.H. initiative, entitled "An Act Relating to the
Management of Salmon"reads in full:
BE IT ENACTED BY THE PEOPLE OF THE STATE OF
ALASKA
"An Act relating to the management of salmon"
Sec. 1. PURPOSE (a) This act provides that,
after maintenance of salmon stocks at
sustained yield levels is assured,
subsistence, personal use, and sport fisheries
shall receive a preference to take a portion
of the harvestable surplus of salmon stocks.
Subsistence, personal use, and sport fisheries
must be ensured of a reasonable opportunity to
take enough salmon necessary to satisfy the
harvest needs of those fisheries before other
fisheries may be allocated the remaining
portion of the harvestable surplus.
(b) This Act does not alter existing or
establish new allocations or preferences among
subsistence, personal use, and sport
fisheries.
(c) This Act does not give additional
authority to the Board of Fisheries or the
Department of Fish and Game, but relies upon
the existence of their respective authorities
to implement this Act.
Sec. 2. AS 16.05 is amended by adding a new
section to article 5 to read:
Sec. 16.05.735 MANAGEMENT OF ALASKA SALMON
STOCKS. (a) After providing for biological
escapement needs of Alaska salmon stocks, the
Board of Fisheries and the department shall
exercise their respective authorities under
this title to reserve a priority for the
harvest needs of common consumptive uses for
each salmon stock, to the extent that is
technically possible, prior to allocating a
portion of the harvestable surplus to non-
priority uses along the entire migratory path
of a stock. The total number of salmon,
without regard to the species of salmon,
reserved to satisfy the harvest needs of
personal use and sport fisheries may not
exceed five percent of the total projected
statewide harvest of all species of salmon.
Personal use and sport fisheries may harvest
in excess of five percent of a particular
species or stock and or in excess of five
percent of the total harvest in a given
geographic region of the state. However, the
harvest priority for personal use and sport
fisheries may not exceed five percent of the
total projected statewide harvest.
(b) All harvests shall be made in a habitat
responsible manner. The Board shall adopt
regulations establishing methods and means of
taking salmon that protects salmon spawning
and rearing habitat from damage that will,
individually or cumulatively, result in
significant reduction in the productivity of
salmon stocks.
(c) In this section,
(1) "common consumptive use"means the use of
salmon harvested under subsistence, personal
use, or sport fishing regulations or statutes;
(2) "harvest needs"means the harvest
capability, using bag limits as established by
the Board and the department of all common
consumptive uses based upon projected
participation, and assuming a harvestable
surplus of salmon exists after ensuring an
adequate biological escapement;
(3) "salmon"means Coho, Chinook, Sockeye,
Pink, and Chum salmon that originate in or
will return to spawn in Alaskan waters; salmon
does not include Steelhead or other anadromous
fish;
(4) "stock"means a population or aggregation
of a particular species that typically possess
common characteristics such as area of origin,
migration patterns, run timing, habitat, and
share in a common gene pool;
(5) "statewide salmon harvest"means the total
projected annual harvest, in numbers of fish
caught, of all combined species of salmon.
Lieutenant Governor Fran Ulmer certified the proposed
initiative. (EN2) The initiative sponsors then circulated the
petition among voters and obtained enough signatures to place the
proposed initiative on the 1996 general election ballot. (EN3)
Thereafter, the Division of Elections verified that the petition
had the required number of signatures, and directed that the
Department of Law prepare the ballot accordingly.
On November 7, 1995, appellants Harvey Pullen and United
Fishermen of Alaska (Pullen) filed suit for declaratory and
injunctive relief challenging, on several grounds, the Lieutenant
Governor's certification of the initiative. More particularly,
Pullen asserted that (1) the proposed bill is not a proper subject
of an initiative because it would make an appropriation of the
State of Alaska's salmon resources, (2) the allocation of salmon
resources of the state among common users is exclusively the
responsibility of the legislature, (3) the Lieutenant Governor's
impartial summary explaining the proposed bill is misleading as to
its terms and effects, and (4) the proposed classification of
common users of the state's salmon resource is underinclusive and
unfair because the initiative denies commercial fishers equal
treatment and protection, a violation of the Uniform Application
clause in article VIII, section 17 of the Alaska Constitution.
(EN4) By way of relief, Pullen sought a declaration of
unconstitutionality and an injunction prohibiting the Lieutenant
Governor from placing the initiative on the November 1996 general
election ballot.
Thereafter, Pullen moved for summary judgment, with all
parties agreeing that no genuine issues of material fact existed.
Pullen grounded his summary judgment motion on the contention that
the proposed initiative is not a proper subject for an initiative
and is in violation of articles VIII, XI, and XII of the Alaska
Constitution as well as AS 15.45.010.
In opposition, the Lieutenant Governor argued that the
proposed bill is a proper subject for an initiative because it
merely creates a new priority system for the allocation of salmon
resources among groups of fishers, that the allocation of salmon is
not within the exclusive law-making power of the legislature, and
that it does not make an appropriation by the state. F.I.S.H. in
turn contended that salmon in their natural state are not property
subject to appropriation. F.I.S.H. further argued, in the
alternative, that if salmon are considered state property subject
to appropriation, the initiative does not make an appropriation of
salmon.
The superior court denied Pullen's motion for summary
judgment, and entered final judgment, for Lieutenant Governor Ulmer
and F.I.S.H. In granting summary judgment, the superior court
ruled that salmon are public assets of the state which may not be
appropriated by initiative; (EN5) that neither the Alaska
Constitutional Convention Minutes nor article XII, section 11 of
the Alaska Constitution support Pullen's assertion that the Public
Trust doctrine prohibits establishing a new priority of the state's
natural resources directly through the initiative process; (EN6)
and that the initiative does not make an appropriation of state
assets. (EN7)
III. STANDARD OF REVIEW
The parties agree that there are no genuine issues of
material fact in dispute. The appeal primarily concerns only
questions of the constitutionality of the proposed initiative.
These are questions of law. In regard to questions of law, we
apply our independent judgment. Croft v. Pan Alaska Trucking,
Inc., 820 P.2d 1064, 1066 (Alaska 1991). Regarding questions of
law, this court adopts the rule of law that is most persuasive in
light of precedent, reason and policy. Guin v. Ha, 591 P.2d 1281,
1284 n.6 (Alaska 1979).
Concerning the applicable standard of review in matters
involving initiatives, we have said that the usual rule is "to
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." Fairbanks v. Convention & Visitors Bureau,
818 P.2d 1153, 1155 (Alaska 1991) (citation omitted).
IV. DISCUSSION
Pullen's appeal from the superior court's decision on
summary judgment raises two issues. First, Pullen argues that
management of Alaska's salmon resources falls exclusively within
the power of the state legislature as trustee of Alaska's wildlife,
and therefore is not a proper subject of an initiative. Second,
Pullen contends that the proposed initiative makes an appropriation
of state property, in violation of article XI, section 7 of the
Alaska Constitution. We address this latter contention first.
A. The Initiative as an Appropriation
1. Can wildlife be characterized as state property
subject to appropriation?
Article XI, section 7 of the Alaska Constitution provides
in part that "[t]he initiative shall not be used to . . . make or
repeal appropriations . . . ." In Thomas v. Rosen, 569 P.2d 793,
796 (Alaska 1977), we endorsed the following definition of
"appropriations":
the setting aside from the public revenue of a
certain sum of money for specific objects in
such a manner that the executive officers of
the government are authorized to use that
money, and no more for that object, and no
other.
Two subsequent decisions of this court have held that the term
"appropriations"as used in article XI, section 7 embraces not only
appropriations of money but initiatives that propose to "give away"
any public asset, including land. In Thomas v. Bailey, 595 P.2d 1
(Alaska 1979), we held that an appropriation of state land to the
general public was just as much an appropriation as a disposition
of money from the treasury. Specifically, we said, "The stated
purpose and effect of the Initiative on the state treasury is still
an expenditure of state assets in the form of public lands." Id.
at 9. Subsequently, in regard to an initiative that would have
required the Municipality of Anchorage to sell a utility to a
private non-profit organization for one dollar, we said:
We noted [in Thomas v. Bailey] that the
constitutional convention delegates "wanted to
prohibit the initiative process from being
used to enact give-away programs, which would
have inherent popular appeal, that would
endanger the state treasury.". . . We
conclude that the logic of Bailey also applies
in the instant appeal. The prohibition
against appropriation by initiative applies to
all state and municipal assets.
Alaska Conservative Political Action Committee v. Municipality of
Anchorage, 745 P.2d 936, 938 (Alaska 1987) (citation and footnote
omitted).
It is against this decisional background that F.I.S.H.
argues that wildlife is not truly an asset of the state. F.I.S.H.
argues that state ownership of wildlife is merely a legal fiction,
and should not be applied in the context of deciding whether
wildlife is an asset of the state which is subject to
appropriation. F.I.S.H. cites several United States Supreme Court
cases in support of its position that a state does not literally
own the wildlife found within its borders. (EN8) More
particularly, F.I.S.H. concludes that "[a]s a matter of simple
common sense, it should be obvious that whatever the Constitution
says about fish and game þbelonging to the state,þ salmon or moose
or other wild creatures are not state assets in the same way that
money or buildings are assets." (Footnote omitted.)
We agree that this facet of F.I.S.H.'s argument is well
established -- the state does not own wildlife in precisely the
same way that it owns ordinary property. However, this does not
answer the question of whether the state's interest in wildlife is
such that it can be appropriately characterized as state property
subject to appropriation.
F.I.S.H. asks, "If the moose population plunges due to a
sudden increase in the wolf population, does the state have an
obligation to notify Moody's so that its bond rating may be
adjusted?" F.I.S.H. assumes that the answer is "No,"reasoning
that these kinds of harms cannot affect the financial health of the
state. We think this assumed answer is wrong.
In fact, a precipitous decline in the moose population
may not, on its own, be enough to greatly affect the state's bond
rating, but the effect on the state would be as significant as the
loss of any other asset. Moose are valuable assets to Alaska,
helping in attracting tourists, for example. Furthermore, if other
wildlife populations also plummeted, the state's finances would
obviously be affected as one of the primary tourism attractors
disappeared. Finally, if the state's salmon population
precipitously declines, the fishing industry would be devastated,
causing even more harm to Alaska's economy and revenue base. The
state benefits from the harvest of salmon through the collection of
taxes imposed on business enterprises engaged in the fishery and
license fees imposed on sport, personal use, and commercial
fisheries.
Insofar as loss, use, or exploitation of wildlife
directly affects Alaska's fish, it is a state "asset." The fact
that other aspects of ownership may not be present in the state's
legal relationship to its wildlife does not change this conclusion.
We reach this holding for the following additional reasons.
First, examination of the relevant provisions of the
Natural Resources Article of the Alaska Constitution clearly
indicates the importance of the state's interest in fish.
Article VIII, section 2 of the Alaska Constitution
provides:
General Authority. The legislature shall
provide for the utilization, development, and
conservation of all natural resources
belonging to the State, including land and
waters, for maximum benefit of its people.
Article VIII, section 3 provides:
Common Use. Wherever occurring in their
natural state, fish, wildlife, and waters are
reserved to the people for common use.
Article VIII, section 4 provides:
Sustained Yield. Fish, forests, wildlife,
grasslands, and all other replenishable
resources belonging to the State shall be
utilized, developed, and maintained on the
sustained yield principle, subject to
preferences among beneficial uses.
In Owsichek v. State, Guide Licensing, 763 P.2d 488
(Alaska 1988), we had occasion to analyze the common use clause
found in article VIII, section 3 of Alaska's Constitution. After
noting that the framers of our constitution apparently intended to
constitutionalize historic common law principles governing the
sovereign's authority over management of fish, wildlife, and water
resources, we said:
Thus, common law principles incorporated
in the common use clause impose upon the state
a trust duty to manage the fish, wildlife and
water resources of the state for the benefit
of all the people. We have twice recognized
this duty in our prior decisions. In
Metlakatla Indian Community, Annette Island
Reserve v. Egan, 362 P.2d 901, 915 (Alaska
1961) aff'd 369 U.S. 45, 82 S. Ct. 552, 7 L.
Ed. 2d 562 (1962), we stated:
These migrating schools of fish,
while in inland waters, are the
property of the state, held in trust
for the benefit of all the people of
the state, and the obligation and
authority to equitably and wisely
regulate the harvest is that of the
state.
(Emphasis added.) Similarly, in Herscher v.
State, Department of Commerce, 568 P.2d 996,
1003 (Alaska 1977), we noted that the state
acts "as trustee of the natural resources for
the benefit of its citizens."
Id. at 495.
In a footnote to this text, we stated:
The Court overruled Geer's state ownership
doctrine in Hughes v. Oklahoma, 441 U.S. 322,
99 S. Ct. 1727, 60 L. Ed. 2d 250 (1979). That
case involved facts almost identical to Geer:
the Oklahoma statute at issue forbade the
export of minnows taken from the waters of the
state. See id. at 323, 99 S. Ct. at 1729, 60
L. Ed. 2d at 254. The Court struck down the
statute as violative of the commerce clause.
Id. at 338, 99 S. Ct. at 1737, 60 L. Ed. 2d at
263. The Court found the state ownership
doctrine to be a legal fiction that created
anomalies and did not conform to "practical
realities." Id. at 335, 99 S. Ct. at 1735, 60
L. Ed. 2d at 261. Nothing in the opinion,
however, indicated any retreat from the
state's public trust duty discussed in Geer.
Indeed, the Court stated, "[T]he general rule
we adopt in this case makes ample allowance
for preserving, in ways not inconsistent with
the Commerce Clause, the legitimate state
concerns for conservation and protection of
wild animals underlying the 19th century legal
fiction of state ownership." Id. at 335-36,
99 S. Ct. at 1735-36, 60 L. Ed. 2d at 261.
. . . .
After Hughes, the statements in the Alaska
Constitutional Convention regarding sovereign
ownership, quoted supra, are technically in-
correct. Nevertheless, the trust responsi-
bility that accompanied state ownership
remains.
Id. at 495 n.12.
These important themes have been consistently reaffirmed.
See Gilbert v. State, Dep't of Fish and Game, 803 P.2d 391, 399
(Alaska 1990); Shephard v. State, Dep't of Fish and Game, 897 P.2d
33, 40 (Alaska 1995).
Given the above, we think there is merit in Pullen's
contention that the public trust responsibilities imposed on the
state by the provisions of article VIII of our constitution compel
the conclusion that fish occurring in their natural state are
property of the state for purposes of carrying out its trust
responsibilities. In short, we are in agreement with Pullen's
position that
[i]t is the authority to control naturally
occurring fish which gives the state property-
like interests in these resources. For that
reason, naturally occurring salmon are, like
other state natural resources, state assets
belonging to the state which controls them for
the benefit of all of its people.
We hold that the state's interest in salmon migrating in
state and inland waters is sufficiently strong to warrant
characterizing such salmon as assets of the state which may not be
appropriated by initiative. Thus we conclude that the superior
court correctly reasoned that salmon are public assets of the state
which may not be appropriated by initiative.
2. Does the initiative constitute an appropriation?
(EN9)
Article XI, section 7 of the Alaska Constitution states
in part:
The initiative shall not be used to dedicate
revenues, make or repeal appropriations,
create courts or prescribe their rules, or
enact local or special legislation.[ (EN10)]
On four previous occasions we have construed the appro-
priations limitation on the initiative power.
Thomas v. Bailey, 595 P.2d 1 (Alaska 1979), presented in
the context of a land give-away initiative, the issue of whether
the prohibition on making appropriations included initiatives which
required the outflow of land, or was limited to the outflow of
money. Bailey established that not only money, but also other
state assets could be the subject of appropriations, and therefore
that the initiative was prohibited. In reaching this holding we
observed that "[t]hough most state constitutions with referendum
and initiative provisions have some limitation relating to
appropriation, Alaska's appropriation limitation is worded more
generally than that of most other states." Id. at 4. (EN11) Of
particular significance is the emphasis given in Bailey on the
dangers associated with direct legislation relating to
appropriations.
The restrictions on permissible subjects for
direct legislation represent "a recognition
. . . that certain particularly sensitive or
sophisticated areas of legislation should not
be exposed to emotional electoral dialogue and
impulsive enactment by the general public."
Stewart, The Law of Initiative Referendum in
Massachusetts, 12 N. Engd. L. Rev. 455, 461
(1977) (footnote omitted). The danger with
direct legislation relating to appropriations
is that it "tempt[s] the voter to [prefer]
. . . his immediate financial welfare at the
expense of vital government activities."
Note, Referendum: The Appropriations Exception
in Nebraska, 54 Neb. L. Rev. 393, 394 (1975).
Cf. Brown v. Ward, 593 P.2d 247 (Alaska 1979).
The lure of an immediate grant of land poses
the same temptation as an immediate grant of
money. Both decisions are the kind that
require the reasoned deliberation
characteristic of legislative actions.
Id. at 8. (EN12)
The prohibition against using an initiative to make an
appropriation next arose in Alaska Conservative Political Action
Committee v. Municipality of Anchorage, 745 P.2d 936 (Alaska 1987).
There we concluded that the logic of Bailey controlled and that
"[t]he prohibition against appropriations by initiative applies to
all state and municipal assets." Id. at 938. We further stated:
A utility with $32.7 million equity is a
significant municipal asset. The initiative
would require the Municipality to transfer it
for the nominal sum of one dollar. This is
precisely the kind of "rash, discriminatory,
and irresponsible act[]"against which the
state and its subdivisions are protected under
Article XI, section 7.
Id.
The issue arose again in McAlpine v. University of
Alaska, 762 P.2d 81 (Alaska 1988). In McAlpine, an initiative was
proposed reestablishing the community college system in the state.
This part of the initiative was not held to violate the prohibition
on appropriations. However, the initiative also provided for the
transfer of certain property of the University of Alaska to the
Community College System:
The University of Alaska shall transfer to the
Community College system of Alaska such real
and personal property as is necessary to the
independent operation and maintenance of the
Community College System. The amount of
property transferred shall be commensurate
with that occupied and operated by the
Community Colleges on November 1, 1989.
Id. at 83. Again drawing on Bailey, we said in McAlpine:
Parallel reasoning applies in the present
case. Outside the context of give-away
programs, the more typical appropriation
involves committing certain public assets to a
particular purpose. 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. This rationale applies as much or
nearly as much to allocations of physical
property as to allocations of money. To
whatever extent it is desirable for the
legislature to have sole responsibility for
allocating the use of state money, it is also
desirable for the legislature to have the same
responsibility for allocating property other
than money. Otherwise, the prohibition
against appropriations by initiative could be
circumvented by initiatives changing the
function of assets the State already owns. We
conclude that the constitutional prohibition
against appropriations by initiative applies
to appropriations of state assets, regardless
of whether the initiative would enact a give-
away program or simply designate the use of
the assets.
Id. at 88, 89 (first emphasis in original, second emphasis added,
footnote omitted). We then went on to hold that the second
sentence of the initiative constituted an impermissible
appropriation.
Most recently, we upheld a challenged initiative in City
of Fairbanks v. Fairbanks Convention & Visitors Bureau, 818 P.2d
1153 (Alaska 1991). In that case, the initiative in question
repealed a city code section which designated bed tax revenues for
purposes of tourist and entertainment facilities and other economic
development. The initiative also set aside the bed tax revenues
for deposit in the city council discretionary fund. We held that
the placing of revenues in the discretionary fund was not an
appropriation. The test we applied was "whether the initiative
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." Id. at 1157. (EN13) In concluding that the
initiative was not violative of the prohibition against making
appropriations, we observed:
A reference to the dual purposes behind
the prohibition of initiatives which make
appropriations is instructive. First, the
initiative is not a give-away program. No
particular group or person or entity is
targeted to receive state money or property,
nor is there any indication that by passing
this initiative, the voters would be voting
themselves money. Second, this initiative
does not reduce the council's control over the
appropriations process. Instead, the initia-
tive allows the council greater discretion in
appropriating funds than does the current law.
It is axiomatic that if FGCO 5.402 does not
make an appropriation, then the initiative,
which affords greater legislative discretion
and is not a give-away program, cannot make an
appropriation.
Id. at 1157.
From these decisions two core objectives of the
constitutional prohibition on the use of initiatives to make
appropriations can be distilled. 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. In light of these objectives, we now address the
question of whether the proposed initiative violates article XI,
section 7 of the Alaska Constitution as well as AS 15.45.010. We
answer this question in the affirmative.
Our interpretation of the proposed initiative leads us to
the conclusion that the initiative, if enacted, would violate the
basic purposes underlying Alaska's constitutional restriction
against making appropriations by initiative. First, it is clear
that the proposed initiative is designed to appeal to the self-
interests of sport, personal and subsistence fishers, in that these
groups are specifically targeted to receive state assets in the
circumstance of harvestable shortages. (EN14) In short, it
"tempt[s] the voter to [prefer] . . . his immediate financial
welfare at the expense of vital government activities." Bailey,
595 P.2d at 8. Second, the initiative significantly reduces the
legislature's and Board of Fisheries' control of and discretion
over allocation decisions, particularly in the event of
stock-specific or region-specific shortages of salmon between the
competing needs of users. See McAlpine, 762 P.2d at 88-89. ("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. This
rationale applies as much or nearly as much to allocations of
physical property as to allocations of money.")
The overriding purpose of the proposed initiative is to
require the Board of Fisheries, after providing for the biological
escapement needs of Alaska's salmon stocks, to reserve a priority
for the harvest needs for each particular salmon stock of personal
use, sport, and subsistence fisheries prior to allocating any
portion of the harvestable surplus to commercial fisheries. (EN15)
The State comes close to conceding that if the proposed initiative
is approved by the electorate it could result in the closure of
some commercial fisheries. In this regard, the State notes:
Pink salmon, and to some respects sockeye
salmon, are the largest producers in numbers
of fish. . . . However, most of the sport
fishermen in Southeast and the A-Y-K regions
target kings and cohos. . . . Since the
priority is stock directed and allocation is
not, one could argue that the initiative
requires allocations of kings and cohos to
sport and personal users in these regions. If
so, this arguably requires closing some
commercial fisheries also targeting kings and
cohos.[ (EN16)]
(Emphasis added, citations omitted.)
We cannot interpret the proposed initiative as simply
amending "a series of general legislative criteria to add more
specific ones to guide the Board of Fisheries in its future
allocation decisions"as F.I.S.H. contends. We think it is clear
that the proposed initiative calls for an actual allocation, in the
event of a shortage of a given salmon species in a given geograph-
ical region, to sport, personal use, and subsistence fisheries.
(EN17) In such circumstances there exists the very real possibil-
ity that the commercial fishers will be excluded from such
fisheries. Thus, the initiative cannot be viewed as merely
protecting the relative positions of sport, personal use, and
subsistence fisheries as against commercial fisheries. Nor can
this initiative be construed as not impinging upon the
legislature's and Board of Fisheries' discretion to make allocation
decisions among the competing needs of users. See McAlpine, 762
P.2d at 89, 91. The proposed initiative does not purport to
maintain the existing relative positions between sport, personal
use, and commercial fisheries. Further, the proposed initiative
does remove the Board of Fisheries' discretion to make allocation
decisions in times of shortages, and there is a very realistic
danger that such shortages will occur.
For these reasons, we hold that the F.I.S.H. initiative
violates article XI, section 7 of the Alaska Constitution, as well
as AS 15.45.010. (EN18)
IV. CONCLUSION
The judgment of the superior court is REVERSED insofar as
it holds that the proposed F.I.S.H. initiative does not make an
appropriation of state assets in violation of the provisions of
article XI, section 7 of the Alaska Constitution. The case is
REMANDED to the superior court with directions to amend its
judgment to provide that the Lieutenant Governor is permanently
enjoined from placing the proposed F.I.S.H. initiative on the 1996
general election ballot.COMPTON, Chief Justice, concurring.
I concur with the court in holding that the judgment of
the superior court should be amended to provide that the Lieutenant
Governor be permanently enjoined from placing the F.I.S.H.
initiative on the 1996 general election ballot. However, I do not
agree that the initiative violates article XI, section 7 of the
Alaska Constitution. Rather, I conclude that the initiative
violates article XII, section 11 of the Alaska Constitution, and
for this reason it cannot be placed on the ballot.
The court holds that "[i]nsofar as loss, use, or
exploitation of wildlife directly affects Alaska's fish, it is a
state 'asset.'" Op. at 14. The state's interest in migrating
salmon is sufficiently strong "to warrant characterizing such
salmon in their natural state as assets of the state which may not
be appropriated by initiative." Op. at 17 (emphasis added). I
cannot accept the conclusion that fish, or other wildlife, are
"assets of the state."
It is correct to observe, as does the court, that
wildlife is of significant value to the state. Unquestionably a
"precipitous decline"in wildlife population would affect the
state's finances for reasons identified by the court. Yet fish and
wildlife occurring in their natural state are not remotely like the
forests found on state owned lands, or hydrocarbons and minerals
found on or under state owned lands. These are assets of the state
in a sense of the term that readily can be understood. However, it
is counter-intuitive to suggest that migratory wildlife is an "an
asset of the state." It is an asset to the State, not of the
State.
In addition to the court's conclusion being counter-
intuitive, there is virtually no case support for the proposition.
The court quotes from Owsichek v. State, Guide Licensing and
Control Board, 763 P.2d 488, 495 (Alaska 1988), which cited to and
quoted from Metlakatla Indian Community, Annette Island Reserve v.
Egan, 362 P.2d 901 (Alaska 1961), aff'd 369 U.S. 45 (1962). In
Metlakatla, the court stated that "[t]hese migrating schools of
fish, while in inland waters, are the property of the state, held
in trust for the benefit of all the state. . . ." Id. at 915
(emphasis added). The court notes candidly that the state
ownership doctrine, given the blessing of the United States Supreme
Court in Geer v. Connecticut, 161 U.S. 519 (1896), was overruled by
the Court in Hughes v. Oklahoma, 441 U.S. 322 (1979). The Court
termed the state ownership doctrine a legal fiction that did not
conform to practical realities.
The court also correctly notes that Hughes did not
dictate a retreat from the trust doctrine advanced in Geer. It is
this trust relationship, repeatedly articulated and embraced by
this court, that lies at the core of the present dispute. This
relationship between migratory fish and game, the State of Alaska,
and the people of the State of Alaska is not an "asset of the
state"in any sense of the term.
The trust relationship derives generally from article
VIII of the Alaska Constitution, and in this case specifically from
article VIII, section 3, which provides that "[w]herever occurring
in their natural state, fish, wildlife, and waters are reserved to
the people for common use." This section, generally referred to as
the "common use clause,"can be amended by the people of the State,
for that right is guaranteed them by article XIII, section 1 of the
Alaska Constitution. However, it cannot be amended by the
legislature, only implemented within the narrow confines of the
limitations of the common use clause, which has created the trust
relationship between the State and its people.
Article XII, section 11 of the Alaska Constitution
provides in part that "[u]nless clearly inapplicable, the law-
making powers assigned to the legislature may be exercised by the
people through the initiative, subject to the limitations of
Article XI." Since article VIII, section 2 of the Alaska
Constitution grants the legislature law-making powers over natural
resources, the question becomes whether law-making powers through
initiative are "clearly inapplicable"to implementation of the
trust relationship established by article VIII, section 3. In my
view, it is precisely because of the trust relationship that law-
making powers through initiative are "clearly inapplicable."
Although the constitutional debate is not particularly
informative, what does become clear from Delegate V. Fischer's and
Delegate McLaughlin's remarks, see 4 Proceedings of the Alaska
Constitutional Convention, at 2828 and 2847-51 (1955), is that
"unless clearly inapplicable"does not mean "unless specifically
excluded." The term "unless clearly inapplicable"became part of
the constitution, the term "unless specifically excluded"did not.
Undefined, "unless clearly inapplicable"thus becomes subject to
interpretation.
In my view an initiated law is "clearly inapplicable"to
the allocation of a resource reserved to the people for their
common use. This is particularly so when the State holds the
resource in trust for all the people of the State. The people, as
beneficiaries of this trust, cannot dictate to the trustee the
manner in which the trust is to be administered.
The uniqueness of this trust relationship in our
government distinguishes it from most other relationships created
by the Alaska Constitution. Additionally, the structure of the
Department of Fish and Game belies the notion that fish and game
management decisions may be left to initiated laws. The
Commissioner of Fish and Game serves a specific term of five years,
AS 16.05.010, unlike other commissioners. Also unlike other
commissioners, who simply are appointed by the governor, subject to
legislative approval, the Boards of Fisheries and Game present to
the governor a list of qualified nominees for the office of
Commissioner of Fish and Game. The governor makes the appointment
from the list, or a supplemental list if he or she requests one.
The appointment is subject to legislative approval. AS 44.39.030.
Unlike other commissioners, specific professional qualifications
for Commissioner of Fish and Game are required by statute,
including "knowledge of the requirements for the protection,
management, conservation, and restoration of the fish and game
resources of the state." AS 16.05.010. Also unlike other
commissioners, who serve at the pleasure of the governor, a
proceeding for removal of the Commissioner must be initiated by a
resolution by either the Board of Fisheries or Board of Game, who
request the Commissioner's removal. Only then can the governor
make a final decision to remove the Commissioner. AS 44.39.050.
The trust relationship, the structure of the Department
of Fish and Game, the agency responsible for implementing the
State's trust responsibilities for the benefit of all the people of
the State, and the detailed professional requirements that must be
possessed by the Commissioner of Fish and Game, the executive who
directs that agency, persuasively demonstrate the clear
inapplicability of initiated laws which dictate policies regarding
the "protection, management, conservation, and restoration of the
fish and game resources of the state."
Long ago we set upon a course that defined the State's
responsibility under the common use clause as that of a trustee for
its people, the beneficiaries of that trust. I am persuaded that
the characterization of that relationship was, and is, correct. I
am persuaded similarly that the constitutional grant of the right
of initiative is clearly inapplicable to alter such a relationship.
ENDNOTES:
1. Pullen notes that "[t]he application was filed by Alaskans who
believed that the Alaska Board of Fisheries was, in some
circumstances, allocating an unreasonable portion of salmon to
commercial fisheries at the expense of personal consumptive uses."
2. The Lieutenant Governor is charged with reviewing initiative
applications for compliance with AS 15.45.010-.080. Upon request
from the Lieutenant Governor, the Attorney General's Office
reviewed the proposed initiative as to whether it was in proper
form under applicable state constitutional provisions and statutes.
The Attorney General's Office concluded that it was a close
question as to whether the proposed initiative is in proper form,
but recommended that it be certified even though there is some
doubt as to its validity.
A determination by the Lieutenant Governor that a proposed
initiative is in the proper form includes a determination that it
does not cover a subject that is restricted for enactment by the
Alaska Constitution. AS 15.45.010-080. See also Boucher v.
Engstrom, 528 P.2d 456, 460-61 (Alaska 1974) (overruled on other
grounds, McAlpine v. University of Alaska, 762 P.2d 81, 84 (Alaska
1988)). This determination is put in issue by Pullen's appeal.
3. In accordance with AS 15.45.090(2), the Lieutenant Governor
prepared a petition containing the proposed bill as well as a
summary of the proposed initiative.
4. Grounds numbered three and four are not at issue in this
appeal.
5. In its Memorandum and Order, the superior court stated:
The court believes that while the state
does not literally own salmon resources,
salmon are public assets which may not be
appropriated by initiative. The Alaska
Constitution contains explicit provisions
which state that the natural resources of the
state belong to the state, which controls them
as trustee for the people of the state. The
state takes in significant revenues from fish
taxes. The right to participate in the
statewide harvest of salmon is valuable to all
user groups. Fish have long been an important
part of the economy and the desire to control
fish resources was an important motivation for
Statehood. Permits granted by the state to
take fish sell for significant sums. The
state devotes substantial financial resources
for the protection and management of fish and
other wildlife. These factors taken together
provide a basis for concluding that the state
has sufficient interest in salmon as public
assets so as to characterize them as state
property which may not be appropriated by
initiative.
(Footnote omitted.)
6. In regard to this holding the superior court stated:
The court believes that neither the
Alaska Constitutional Convention Minutes nor
Article XII, section 11 of the Alaska
Constitution support the plaintiffs' assertion
that the public trust doctrine prohibits
establishing a new priority of the state's
natural resources directly through the
initiative process. The delegates to the
constitutional convention after considerable
debate regarding the impact of the authority
of Alaskans to enact legislation directly
through initiative, decided not to distinguish
between matters in the hands of the legisla-
ture and matters subject to the initiative
process. The court finds nothing in Article
XI, Article XII, or the Minutes of the Alaska
Constitutional Convention which (aside from an
appropriation argument) would prohibit the
subject matter of the F.I.S.H. Initiative from
being enacted by the people of Alaska directly
through the initiative process.
The plaintiffs' public trust doctrine
argument may pose a separate, post ballot-box
issue. At the current stage of the enactment
process, the only issue for the court is
whether by creating a new priority among
beneficial users of the state's fishery
resources, the F.I.S.H. Initiative makes an
appropriation under the McAlpine test.
7. As to this last holding, the superior court in its Memorandum
and Order wrote:
The court finds that the F.I.S.H.
initiative does not constitute an
appropriation as defined by the Alaska Supreme
Court in McAlpine. The substantive portion of
the F.I.S.H. Initiative creates a new system
of preference among beneficial users of the
statewide salmon harvest. The F.I.S.H.
initiative requires that after escapement
decisions are made, the Board of Fisheries
must then determine what percentage, if any,
will be allocated to personal use and sport
fisheries up to a maximum of five percent.
The initiative does not alter or establish new
allocations or preferences among subsistence,
personal use, and sport fisheries. By itself,
the initiative does not convey or allocate any
part or definite amount of the salmon harvest
to a specific user group. Further action by
the Board of Fisheries is required before fish
resources are allocated to competing user
groups.
The Board has broad discretion under the
initiative to make allocations to consumptive
and non-consumptive users based on the amount
of fish available and escapement needs. There
are no definite or calculable amounts to which
any user group is automatically entitled. The
directive that up to five percent of the
statewide harvest must be reserved for
consumptive users provides a maximum
"preference"that is within the Board's
discretion to implement. The initiative does
not guarantee that personal use and sport
fisheries will be allocated any fish. Despite
the preference scheme, the Board has
considerable discretion to determine the
amount of fish each group is entitled to and
may still allocate based on what it sees as
the best interests of the whole.
This pre-election review of an initiative
is limited to a determination of whether the
contents of the initiative include subjects
which the people may not enact directly
through initiative. The F.I.S.H. Initiative
establishes a preference, but retains
allocation decisions in the Board of
Fisheries. As such, the initiative is not
executable, mandatory, or reasonably definite
without further legislative action. The
initiative does not make an appropriation of
state assets as defined by the Alaska Supreme
Court in McAlpine.
8. According to F.I.S.H., "[t]he United States Supreme Court
itself has been careful in its decisions since [Geer v.
Connecticut, 161 U.S. 519 (1896)] to clarify the fact that state
'ownership' of fish and game is simply a shorthand way of
describing the state's significant interest in preserving and
regulating fish and wildlife within its borders." In addition to
Geer, F.I.S.H. cited Hughes v. Oklahoma, 441 U.S. 322 (1979)
(overruling Geer); Baldwin v. Montana Fish and Game Comm'n, 436
U.S. 371, 384-86 (1978); Toomer v. Witsell, 334 U.S. 385, 402
(1948); and Douglas v. Seacoast Products, Inc., 431 U.S. 268, 284
(1977) ("The þownershipþ language of cases such as those cited by
appellant must be understood as no more than a 19th century legal
fiction expressing þthe importance . . . that a state have power to
preserve and regulate the exploitation of an important
resource.þ").
9. As we explained above,
[t]he usual rule applied by this court is to
construe voter initiatives broadly so as to
preserve them whenever possible. Thomas v.
Bailey, 595 P.2d 1, 3 (Alaska 1979). 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.
Fairbanks v. Convention & Visitors Bureau, 818 P.2d 1153, 1155
(Alaska 1991).
10. AS 15.45.010 provides:
The law making powers assigned to the
legislature may be exercised by the people
through the initiative. However, an
initiative may not be proposed to dedicate
revenue, to make or repeal appropriations, to
create courts, to define the jurisdiction of
courts or prescribe their rules, or to enact
local or special legislation.
11. In this regard we further stated:
Even if the initiative provision referred to
appropriations "of public funds,"the issue
would still be whether public funds refers
generally to the state's assets or only those
assets in the form of money. We have
concluded that by the term "appropriations,"
Article XI, section 7 prohibits an initiative
whose primary objective is to require the
outflow of state assets in the form of land as
well as money.
Bailey, 595 P.2d at 6, 7.
12. We further elaborated:
Initiatives for the purpose of requiring
appropriations were thought to pose a special
danger of "rash, discriminatory, and irre-
sponsible acts." The delegates [to Alaska's
Constitutional Convention] were influenced by
the experience of other states whose constitu-
tions placed no restrictions on the subject
matter of initiatives. They adopted the
appropriations restriction to avoid the bad
experiences of those states.
The delegates wanted to prohibit the
initiative process from being used to enact
give-away programs, which have an inherent
popular appeal, that would endanger the state
treasury. A rather lengthy statement by
Delegate Taylor explains the delegates'
concerns:
Now in practically all the states
that have initiative and referendum
there are certain limitations put
upon the matters that can be acted
upon by those measures. Now appro-
priations are not subject to the
initiative or the referendum. Some
states made a great mistake by not
restricting the initiative measures
and allowed pressure groups to
gather great numbers of signatures
to a petition and that petition
would require the expenditure of
large amounts of money, perhaps a
great deal more than the state could
possibly afford and sometimes they
would also initiate some legislation
to raise money, a revenue measure
and then directed that the proceeds
of that measure would be utilized
for a particular purpose. In other
words, it took the making of revenue
measures and expenditure of the
funds away from the legislature and
in some instances the governmental
functions and governmental institu-
tions suffered a great deal. And it
was necessary within as short a time
as possible to undo the damage that
has been done.
Id. at 7, 8 (footnotes omitted).
13. The test we applied in City of Fairbanks derives from
McAlpine.
14. It should be noted that subsistence fisheries are already
accorded a preference which is not affected by our determination
that the proposed initiative is violative of article XI, section 7
of the Alaska Constitution as well as AS 15.45.010.
15. We need not disavow the McAlpine "whether the initiative would
set aside a certain specific amount of money or property for a
specific purpose or object in such a manner that is executable,
mandatory, and reasonably definitive with no further legislative
action"language in concluding that the current initiative makes an
appropriation. The initiative, if passed, would suffice without
further action of the legislature to direct the Board of Fisheries
to allocate salmon in accordance with its terms. Further, the
point of the quoted language is that where 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.
16. In regard to potential conflicts between different users,
F.I.S.H. states:
There are no conflicts at all over pink
salmon, the most numerous of all salmon in
Alaska. In most areas, chum salmon and red
salmon are only exploited for commercial
purposes. There are real conflicts on the
Kenai Peninsula over king salmon and to a much
lesser extent red salmon; there are conflicts
in Southeastern Alaska over king and silver
salmon, and there are some conflicts between
subsistence users and commercial fishermen on
the river systems in western Alaska.
17. The Fish and Game statutes define "subsistence use"as the
"noncommercial, customary and traditional uses of wild, renewable
resources . . . for direct personal or family consumption . . . ."
AS 16.05.940(32). "[P]ersonal use fishing means the taking,
fishing for, or possession of fin fish . . . by Alaska residents
for personal use and not for sale or barter with gill or dip net,
seine, fish wheel, long line, or other means defined by the Board
of Fisheries." AS 16.05.940(24). "[S]port fishing means the
taking of or attempting to take for personal use, and not for sale
or barter, any . . . anadromous fish by hook and line with the line
attached to a pole or rod which is held in the hand or closely
attended, or by other means defined by the Board of Fisheries." AS
16.05.940(29).
18. Our holding makes it unnecessary to address Pullen's argument
that the management of Alaska's salmon resources falls exclusively
within the power of the state legislature as trustee of Alaska's
wildlife, and therefore is not a proper subject of an initiative.
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