2012-Op. (Dec. 17).

Case Date:December 17, 2012
Court:Alaska
 
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Alaska Attorney General Opinions 2012. 2012-Op. (Dec. 17). December 17, 2012The Honorable Mead Treadwell Lieutenant Governor P.O. Box 110015 Juneau, Alaska 99811-0015Re: Review of "Bristol Bay Forever" Initiative Application A.G. File No. JU2012200845Dear Lieutenant Governor Treadwell: You have asked us to review an application for an initiative entitled "An Act Providing for Protection of Bristol Bay Wild Salmon and Waters Within or Flowing into the Existing 1972 Bristol Bay Fisheries Reserve" ("12BBAY"). Because the application complies with the specific constitutional and statutory provisions governing the initiative process, we recommend that you certify the application. I. SUMMARY OF THE PROPOSED BILL A. BRIEF SUMMARY AND BACKGROUND In 1972, the legislature enacted AS 38.05.140(f), which provides in full:
The submerged and shoreland lying north of 57 degrees, 30 minutes, North latitude and east of 159 degrees, 49 minutes, West longitude within the Bristol Bay drainage are designated as the Bristol Bay Fisheries Reserve. Within the Bristol Bay Fisheries Reserve, a surface entry permit to develop an oil or gas lease or an exploration license under AS 38.05.131 - 38.05.134 may not be issued on state owned or controlled land until the legislature by appropriate resolution specifically finds that the entry will not constitute danger to the fishery.
The bill proposed by this initiative would provide for the protection of Bristol Bay wild salmon and waters within or flowing into the designated Bristol Bay Fisheries Reserve by requiring legislative approval for certain large-scale metallic sulfide mines. This legislative approval would take the form of a duly-enacted law finding that the proposed mining operation will not constitute danger to the fishery within the Bristol Bay Fisheries Reserve and would be in addition to other permits and authorizations already required for such mines to operate in the region. The bill would also add certain provisions to the uncodified law of the state in order to effectuate the substantive provisions of the bill.(fn1) B. SECTIONAL SUMMARY The bill proposed by this initiative is five pages long, double-spaced, and consists of five sections. The first section adds a new statutory provision to Title 38 and the remaining four sections add provisions to the uncodified law of the State of Alaska. These five provisions are summarized as follows: * Section 1. This section would add a new statutory provision, AS 38.05.142, composed of three subsections, and entitled "Legislative approval required for certain large scale mines." Subsection (a) of the proposed statute provides that in addition to permits and authorizations otherwise required by law, the legislature must give final authorization for any "large-scale metallic sulfide mining operation located within the watershed of the Bristol Bay Fisheries Reserve designated in AS 38.05.140(f)." The authorization would "take the form of a duly enacted law finding that the proposed large-scale metallic sulfide mining operation will not constitute danger to the fishery within the Bristol Bay Fisheries Reserve." Subsection (b) provides that the commissioner of natural resources may adopt regulations under the Administrative Procedure Act to implement the statute. Subsection (c) defines "large-scale metallic sulfide mining operation" as a "specific mining proposal to extract metals, including gold and copper, from sulfide-bearing rock and that would directly disturb 640 or more acres of land." * Section 2. This section would add a new provision to the uncodified law of the state containing ten specified findings by the people. The findings would generally provide for recognition of the Bristol Bay Fisheries Reserve as a region of statewide significance to sport, commercial, and subsistence fisheries, Alaska's economy, the global fishing economy, and a region of cultural importance to Alaska Natives. The findings would also recognize potential adverse effects of metallic sulfide mining to the region and the need to protect the region from those effects, particularly as related to large-scale metallic sulfide mining. Accordingly, the findings would state that protective measures of the initiative bill as a whole are directed at ensuring the protection of a region that the legislature already sought to protect through creation of the Reserve in 1972. The findings state the intent of the bill: to require legislative approval of any large-scale metallic sulfide mining that could adversely impact the Bristol Bay Fisheries Reserve and anadromous waters within the reserve. * Section 3. This section would add a new provision to the uncodified law of the state regarding retroactivity and scope of the bill. Specifically, this section indicates that the Act would apply "only to large-scale metallic sulfide mining operations that have not received all necessary authorizations, licenses, permits, or approved plans of operation before the effective date of this Act," and that the provisions of the Act governing legislative action do not apply to existing mining operations in the state or a mine that does not affect the watershed targeted by the bill. * Section 4. This section would add a new provision to the uncodified law of the state providing for severability of any provision of the law invalidated by a court. * Section 5. This section would add a new provision to the uncodified law providing that the initiated act would take effect 90 days after enactment. II. ANALYSIS Under AS 15.45.070, the lieutenant governor must review an application for a proposed initiative and within 60 calendar days of receipt either "certify it or notify the initiative committee of the grounds for denial." The application for the 12BBAY initiative was filed on October 22, 2012. The 60th calendar day after the filing date is December 21, 2012. Under AS 15.45.080, certification shall only be denied if: the proposed bill to be initiated is not confined to one subject or is otherwise not in the required form; the application is not substantially in the required form; or there is an insufficient number of qualified sponsors. A. FORM OF THE PROPOSED BILL In evaluating an initiative application, you must determine whether the application is in its "proper form."(fn2) Specifically, you must inquire whether the application complies with "the legal procedures for placing an initiative on the ballot, and whether the initiative contains statutorily or constitutionally prohibited subjects which should not reach the ballot."(fn3) The form of a proposed initiative bill is prescribed by AS 15.45.040, which requires four things: that (1) the bill be confined to one subject; (2) the subject be expressed in the title; (3) the enacting clause state: "Be it enacted by the People of the State of Alaska"; and (4) the bill not include prohibited subjects. The prohibited subjects include the making or repealing of appropriations and the enactment of local or special legislation.(fn4) This initiative bill meets the first three requirements. It is confined to one subject-the protection of Bristol Bay wild salmon and waters in a prescribed location. The subject is expressed in the title, "An Act Providing for Protection of Bristol Bay Wild Salmon and Waters Within or Flowing into the Existing 1972 Bristol Bay Fisheries Reserve." And the required enacting clause is present. With...

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