363 P.3d 105
Alaska2015Background
- Sponsors submitted initiative 13PCAF to ban commercial shore gillnet/set-net fishing in nonsubsistence areas (except customary/traditional and personal use), and the Lieutenant Governor declined certification saying it effected an unconstitutional appropriation.
- 13PCAF’s text prohibited set-netting in nonsubsistence areas and stated it did not limit legislative or Board of Fisheries discretion to allocate fish, but the Department of Law concluded it nevertheless appropriated public fish resources.
- Sponsors sued for declaratory relief; the superior court granted summary judgment ordering certification, finding the initiative was a permissible regulation and that "commercial fishers" were not a discrete user group.
- Lieutenant Governor appealed; amicus Resources for All Alaskans argued set-netters are a discrete group and 13PCAF would be a prohibited appropriation (and possibly local/special legislation).
- The Alaska Supreme Court framed the analysis under article XI, §7: whether fish are a public asset and whether the initiative effects an appropriation by either (1) creating a give-away program appealing to voter self-interest or (2) removing legislative/Board allocation discretion.
- The Court held that commercial set-netters are a distinct user group and that 13PCAF would (a) reallocate salmon away from that group to others (a give-away) and (b) prevent the legislature/Board from allocating any salmon to set-netters, so the initiative is an unconstitutional appropriation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 13PCAF effects an unconstitutional appropriation of state assets | Sponsors: 13PCAF is a regulation of fishing methods, not an appropriation; Board/legislature retain allocation discretion | Lt. Gov: 13PCAF functionally transfers salmon from a distinct minority (set-netters) to majority users and restricts allocation discretion | Held: Yes — initiative effects an appropriation and is prohibited |
| Whether commercial set-netters are a distinct user group for allocation purposes | Sponsors: "Commercial fishers" is the relevant group; gear distinctions are not discrete user groups | Lt. Gov: Set-netters are a discrete fishery (gear-, permit-, and area-specific) and protected as a distinct group | Held: Set-netters are a distinct user group; Board may make intragroup allocations |
| Whether the initiative is a prohibited "give-away" under precedent | Sponsors: It merely regulates gear and does not expressly allocate fish to others | Lt. Gov: Eliminating set-net fishery would effectively allocate that harvest to other users, appealing to majority self-interest | Held: Initiative is a give-away because it reallocates salmon away from set-netters to others |
| Whether the initiative impermissibly narrows legislative/Board allocation discretion | Sponsors: 13PCAF does not create an express preference among AS 16.05.251(e) categories | Lt. Gov: By eliminating a discrete, existing user group, the initiative would prevent allocation to that group | Held: 13PCAF would significantly restrict the legislature/Board from allocating salmon to set-netters |
Key Cases Cited
- Pullen v. Ulmer, 923 P.2d 54 (Alaska 1996) (held initiative reserving priority to subsistence/personal/sport fisheries over commercial would be an unconstitutional appropriation)
- Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 1064 (Alaska 2009) (held regulation of public assets is permissible unless it wholly reallocates assets to one group at another's expense)
- Hughes v. Treadwell, 341 P.3d 1121 (Alaska 2015) (reaffirmed two core objectives guiding "appropriation" analysis and two-part inquiry)
- City of Fairbanks v. Fairbanks Convention & Visitors Bureau, 818 P.2d 1153 (Alaska 1991) (discussed definition of "appropriation" in initiative context but situates the definition within the two-core-objective analysis)
- Thomas v. Bailey, 595 P.2d 1 (Alaska 1979) (recognized limits on initiatives that effect appropriations of public assets)
- Peninsula Marketing Ass’n v. State, 817 P.2d 917 (Alaska 1991) (held AS 16.05.251(e) allocation criteria apply to intra-commercial allocations)
- Alaska Fish Spotters Ass’n v. State, Dep’t of Fish & Game, 838 P.2d 798 (Alaska 1992) (noted Board must follow allocation statute when allocating among competing subgroups of commercial uses)
- Brooks v. Wright, 971 P.2d 1025 (Alaska 1999) (recognized initiatives can address wildlife management, but did not decide appropriation issue)