An initiative intended to strengthen protections against development for Alaska salmon habitats can still go before voters this fall – with some of its language omitted, according to the Alaska Supreme Court.

In a 48-page decision issued Wednesday, the five-justice court allowed parts of the Stand for Salmon initiative, known as Ballot Measure 1, to stand, where they don’t conflict with the state constitution in removing regulatory powers it allocates to state officials.

Lt. Gov. Byron Mallott declined to certify the measure, prompting a challenge from backers in which a Superior Court judge approved it as written. The state then appealed that decision.

The Supreme Court identified two provisions that would need to be struck, including language that would bar the state from issuing development permits to any project that would cause “substantial damage” to anadromous fish habitats.

“As written, [the initiative] constitutes an unconstitutional appropriation, but by severing the offending provisions the constitutional problem can be remedied without substantially changing the spirit of the measure,” justices wrote. “The remainder of the initiative would not impermissibly infringe on the legislature’s authority over appropriations or that delegated to ADFG, but would still establish a comprehensive regulatory framework for activities that potentially harm anadromous fish habitat.”

Both sides in the case claimed victory Wednesday afternoon, with backers of the initiative saying the court's decision showed that much of it was constitutional.

"While the loss of those provisions will remove important salmon protections, the Supreme Court rejected the state’s argument that the initiative was wholly unconstitutional and agreed that Alaskans should have a right to vote on the issue," Yes for Salmon officials wrote. "The initiative will update an ineffective, outdated state law governing development in salmon habitat."

Alaska Attorney General Jahna Lindemuth hailed the decision Wednesday, saying it confirmed the state's opinion that the measure was unconstitutional as written and thanking justices for their quick decision.

“The Alaska Supreme Court today (Wednesday) confirmed our understanding of the initiative power and its limitations,” Lindemuth said. “That limitation extends to the legislature’s power to allocate the State’s resources—including fisheries and waters—among competing uses.”

Opponents of the measure with Stand for Alaska blasted the measure in the wake of the decision, calling it “flawed and poorly crafted.”

“Even with today’s changes, this measure still replaces our science-based habitat management system with untested regulations that will result in job loss and kill current and future, vital projects,” Stand for Alaska staff wrote. “Stand for Alaska remains strongly opposed to the misguided measure that threatens our jobs, communities and way of life.”

"The Supreme Court today (Wednesday) is sending Alaska voters an initiative with muddled language and clear hazards." Senator Cathy Giessel (R-East Anchorage and Hillside) said. "Make no mistake: if this initiative passes, virtually every job-creating project in Alaska for the next decade is in danger. Those of us who care about Alaska's families supported by Alaska jobs created by Alaska projects are deeply concerned."

“This decision is mixed. If the initiative passes, the concern is that salmon still has an elevated priority over other constitutional competing uses,” said Senator John Coghill (R-Fairbanks).

“While the Court confirmed that the Alaska Constitution prohibits the use of an initiative to usurp or encroach on the Legislature’s sole authority to allocate state resources, many of the initiative provisions were preserved. That’s disappointing, especially since the Court also recognized that while some provisions of the initiative were not facially unconstitutional, there may be future cases in which they are subject to successful ‘as-applied’ constitutional challenges,” continued Senator Coghill.

Initiative supporters say successful passage in November "will establish modern, science-based safety standards and common-sense accountability for large development projects."

“Alaska Natives have been gifted salmon from our ancestors. The salmon returning to our rivers have sustained our people for thousands of years. It’s our job now to have our voices heard and protect our salmon for the future generations like our elders taught us,” said Gayla Hoseth, Second Chief of the Curyung Tribal Council and Measure 1 ballot sponsor.

Wednesday’s decision sends the measure back to Superior Court for amendment before it can be certified by Mallott’s office. The updated version of Measure 1 is slated to appear on the general election ballot on November 6.

Steve Quinn contributed information to this story.

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