Treadwell, 010314 AKAGO, AGO JU2013200790

• Case Date: January 03, 2014
• Court: Alaska

The Honorable Mead Treadwell AGO JU2013200790 A.G. No. JU2013200790 Alaska Attorney General Opinions January 3, 2014          The Honorable Mead Treadwell          Lieutenant Governor          P.O. Box 110015          Juneau, Alaska 99811-0015          Re: Review of Initiative Application for "An Act providing for the protection and conservation of Alaska's fisheries by prohibiting shore gill nets and set nets in nonsubsistence areas."          Dear Lieutenant Governor Treadwell:          You asked us to review an application for an initiative entitled "An Act providing for the protection and conservation of Alaska's fisheries by prohibiting shore gill nets and set nets in nonsubsistence areas" ("13PCAF"). We conclude that the initiative violates the constitutional and statutory prohibition on making or repealing appropriations by initiative, as that prohibition has been interpreted by the Alaska Supreme Court. Accordingly, we recommend that you decline to certify the application.          I. Summary of the Proposed Bill.          A. Brief Summary and Background.          On November 6, 2013, an initiative committee filed with your office an application to certify a ballot initiative. The law proposed by this initiative would prohibit the use of shore gill nets and set nets for fishing in nonsubsistence areas of the state for all purposes other than customary and traditional use or personal use fishing.          B. Sectional Summary.          The law proposed by this initiative consists of four sections:

• Section 1. This section adds a statement of findings and intent to the uncodified law. Specifically, it finds:

• that the state permits the use of shore gill nets and set nets;

• that within nonsubsistence areas, shore gill net and set net fishing kills or injures large numbers of non-target species;

• that within nonsubsistence areas, shore gill net and set net fishing wastes fish because of the high mortality rate for escaped fish and high levels of by-catch of non-targeted species;

• that shore gill nets and set nets have been banned in other states due to their indiscriminate method of take;

• that there is significant pressure on fisheries resources in nonsubsistence areas, which are close to the state's urban population centers;

• that fishing in nonsubsistence areas requires more protections and restrictions to minimize by-catch of non-targeted species;

• that the use of shore gill nets and set nets in nonsubsistence areas is inconsistent with Alaska's constitutional obligation to maintain sustainable fisheries;

• that the limited use of shore gill nets and set nets in nonsubsistence areas will help conserve and develop fisheries consistent with sustained yield; that the customary, traditional, or personal use of shore gill nets and set nets in nonsubsistence areas does not impact fisheries as much as other uses in those areas;

• that the intent of the bill is to prohibit the use of shore gill nets and set nets in nonsubsistence areas of the state for all purposes except for customary and traditional use or personal use; and

• that the bill does not intend to limit the Legislature's or the Board of Fisheries' discretion to allocate fish among competing users.

• Section 2. This section adds a statutory provision, to be designated AS 16.05.781. The proposed statute is entitled "Set gillnetting in nonsubsistence areas prohibited" and contains four subsections.

• Subsection (a) provides that, except for customary and traditional use or personal use fishing, a person may not use a shore gill net or set net to take fish in any nonsubsistence area.

• Subsection (b) cross-references and incorporates existing statutory definitions of "customary and traditional, " "personal use fishing, " "shore gill net, " "set net, " and "nonsubsistence area."

• Subsection (c) provides that nothing in the statute shall affect the use of shore gill nets and set nets in subsistence areas.

• Subsection (d) provides that nothing in the statute shall be construed to limit the discretion of the Legislature or the Board of Fisheries to allocate fish among competing users.

• Section 3. This section adds a standard severability provision to the uncodified law, providing that if a court should find any part of the law invalid, the remainder will be unaffected.

• Section 4. This section provides for an immediate effective date upon enactment.

         II. Analysis.          Upon receiving an application for a proposed initiative, the Lieutenant Governor must review it and within sixty calendar days of receipt either "certify it or notify the initiative committee of the grounds for denial."^[1] The filing date for the 13PCAF initiative application was November 6, 2013, so your deadline is January 6, 2014. You may deny certification only if "(1) the proposed bill to be initiated is not confined to one subject or is otherwise not in the required form; (2) the application is not substantially in the required form; or (3) the application includes an insufficient number of qualified sponsors."^[2]          A. Form of the proposed bill.          In evaluating an initiative application, you must determine whether the application is in the "proper form."^[3] Specifically, you must decide 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."^[4]          The form of a proposed initiative bill is prescribed by AS 15.45.040, which contains four requirements: (1) the bill must be confined to one subject; (2) the subject must be expressed in the title; (3) the enacting clause must state: "Be it enacted by the People of the State of Alaska"; and (4) the bill must not include prohibited subjects. The subjects prohibited in an initiative, outlined in Article XI, section 7 of the Alaska Constitution, include the making or repealing of appropriations, the enactment of local or special legislation, the dedication of revenue, and the creation of courts, the...