Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173, 1181 (Alaska 1985). 3

July 14, 2017 Elizabeth M. Bakalar, Assistant Attorney General Department of Law, Civil Division P.O. Box 110300 Juneau, AK 99811 Re: Refiling and Certification of the revised 17FSHB An Act providing for protection of wild salmon and fish and wildlife habitat Dear Ms. Bakalar; On May 17, 2017, three Alaskans, Brian Kraft, Gayla Hoseth and Mike Wood submitted a proposed ballot application for certification. On June 30, 2017, your office responded with a letter informing these individuals that the Department of Law considers several of the provisions to be appropriations in violation of the constitutional restriction on the use of initiative to appropriate state assets. The ballot sponsors appreciate the courtesy notice of your intent to recommend denial of certification, and your willingness to identify the issues for the sponsors. We have worked through the problems and refiled the application with the Division of Elections. The revised 17FSHB 1 addresses the specific provisions identified by the Department of Law and revises those provisions to comply with existing case law. In looking at a regulatory initiative, the existing case law sets out the frame work for interpreting them to ensure that the right to initiative is as broadly construed as possible. The Alaska Supreme Court has adopted a deferential attitude toward initiatives. 2 The Court has consistently recognized that the constitutional and statutory provisions pertaining to the use of the initiative should be liberally construed in favor of allowing an initiative to reach the ballot. 3 And it is well-established that natural resource management is an appropriate subject for a public initiative. 4 The Alaska Constitution provides that [t]he people may propose and enact laws by the initiative, and approve or reject acts of the legislature by the referendum. 5 One of the few restrictions on this right is the prohibition on the use of an initiative to make or repeal 1 Because this letter is being sent the same day the new application is being filed, we do not know what number will be assigned to the new application, so it is referred to as the revised 17FSHB in this letter. 2 Yute Air Alaska, Inc. v. McAlpine, 698 P.2d 1173, 1181 (Alaska 1985). 3 McAlpine v. Univ. of Alaska, 762 P.2d 81, 91 (Alaska 1988); Yute Air, 698 P.2d at 1181 (citing Municipality of Anchorage v. Frohne, 568 P.2d 3, 8 (Alaska 1977)). 4 Pebble, Ltd. Partnership ex rel. Pebble mines Corp. v. Parnell, 215 P.3d 1064, 1077 (Alaska 2009); Brooks v. Wright, 971 P.2d 1025, 1033 (Alaska 1999)( We find little support... for the proposition that the common use clause of Article VIII grants the legislature exclusive power to make laws dealing with natural resource management. ). 5 Alaska Const. art. XI, 1.

17FSHB Certification Page 2 appropriations. 6 The Alaska Supreme Court has repeatedly used the same definition of appropriation, first discussed in McAlpine and further set out in City of Fairbanks v. Fairbanks Convention & Visitors Bureau, to examine whether an initiative creates an unlawful appropriation. 7 As defined, an appropriation is the setting aside of a certain specified amount of money or property for a specific purpose or object in a manner that is executable, mandatory, and reasonably definite with no further legislative action. 8 The Supreme Court uses a two-part test to determine whether a particular initiative makes an impermissible appropriation. 9 First, the court determines whether the initiative deals with a public asset. 10 In the case of the original and the revised 17FSHB that answer is almost certainly yes. 11 Second, the court examines whether 6 Alaska Const. art. XI, 7. 7 818 P.2d 1153, 1157(Alaska 1991). 8 at 1157. See also Lieutenant Governor of State v. Alaska Fisheries Conservation All., Inc., 363 P.3d 105, 109 (Alaska 2015)(discussing the relationships between the two core objectives and the definition of appropriation); Hughes v. Treadwell, 341 P.3d 1121, 1129-31 (Alaska 2015) (concluding that 12BBAY initiative was not an appropriation); Municipality of Anchorage v. Holleman, 321 P.3d 378, 385 (Alaska 2014) (concluding that referendum repealing limits on overtime and other employment benefits was not the executable, mandatory, and reasonable definite set aside that our case law requires before we will find that an initiative or a referendum makes an appropriation. ); All. of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273 P.3d 1128, 1136-38 (Alaska 2012) (setting out the definition of appropriation and then examining the two core objectives before concluding that an initiative allowing voters to veto capital projects was an allocation of public assets away from a particular purpose.); Staudenmaier v. Municipality of Anchorage, 139 P.3d 1259, 1262 (Alaska 2006)(determining that initiatives requiring the sale of specific municipal assets implicated the second core objective because they set aside a certain specified amount of money or property for a specific purpose or object in a manner that is executable, mandatory and reasonably definite.); Alaska Action Ctr., Inc. v. Municipality of Anchorage, 84 P.3d 989, 993-94 (Alaska 2004)(discussing the definition of appropriation and then the two core objectives); Pullen v. Ulmer, 923 P.2d 54, 63 (Alaska 1996) (relying on City of Fairbanks and the definition of appropriation to distill the two core principles.); City of Fairbanks v. Fairbanks Convention & Visitors Bureau, 818 P.2d 1153, 1157 (Alaska 1991)(holding that the definition of appropriation was not violated by an initiative that repealed restrictions on the use of bed tax revenue); McAlpine v. Univ. of Alaska, 762 P.2d at 90-91 (holding that a requirement to transfer property necessary for the Community College System did not violated the definition of appropriation, but that requiring a specified amount of property to be transferred would be an appropriation because it designated the use of state assets in a manner that was executable, mandatory, and reasonably definite with no further legislative action) 9 Holleman, 321 P.3d at 384. 10 11 The Supreme Court determined that the 12BBAY initiative, requiring legislative authorization for any large-scale metallic sulfide mining operation in the watershed of the Bristol Bay Fisheries Reserve, concerned a public asset whether it was construed as affecting fish, waters of the state, or state lands. [E]ach of these resources is a public asset. Hughes v. Treadwell, 341 P.3d 1121, 1125 (Alaska 2015) (internal citations and quotations omitted).

17FSHB Certification Page 3 the initiative would appropriate that asset. 12 That second question is broken down into a review of the two core objectives that underlie the purpose of prohibiting appropriations through ballot initiatives. The first core objective examines whether the initiative is a give-away program that appeals to the self-interest of voters and endangers the state treasury. This objective is not applicable to 17FSHB. 13 The second core objective requires examination of whether the initiative preserves legislative discretion by ensuring that the legislature retains control over the allocation of state assets among competing users. 14 Analysis of the second objective also requires consideration of 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 is executable, mandatory, and reasonably definite with no further legislative action. 15 This is the relevant question here. In Pebble, the court applied the test and considered the two core objectives when it analyzed whether an initiative that created a statewide prohibition on the discharge of toxic pollutants from mining waste to waters in the state amounted to an impermissible appropriation. 16 The court set out the primary question in that case as whether the initiative narrows the legislature s range of freedom to make allocation decisions in a manner sufficient to render the initiative an appropriation. 17 First, the court found that the initiative at issue in Pebble, like the 17FSHB initiative, does deal with a public asset. 18 In analyzing the second factor, the Pebble court then examined the two core objectives to determine whether the public asset at issue was appropriated. 19 First, the court concluded that the Pebble initiative was not a give-away reasoning that the initiative merely seeks to preserve the status quo by maintaining water quality at levels suitable for consumption by humans and for use as habitat by salmon. 20 Second, on the issue of whether it preserved the discretion of the legislature, the court stated that the prohibition against initiatives that appropriate public assets does not extend to prohibit initiatives that regulate public assets, so long as the regulations do not result in the allocation of an asset entirely to one group at the expense of another. 21 The court concluded that an initiative that precludes discharges of toxic chemicals and other mine waste that could cause adverse effects to humans, salmon and the waters used for human consumption or as salmon habitat is not an impermissible appropriation. 22 More recently the Court has reaffirmed that management of natural resources is an appropriate subject for initiative as long as the proposed law is not a give-away program or a restriction on 12 Holleman, 321 P.3d at 384. 13 14 15 Staudenmaier, 139 P.3d at 1262. 16 Pebble, 215 P.3d at 1075. 17 18 at 1074-75. 19 at 1075 (citing Anchorage Citizens for Taxi Reform, 151 P.3d at 423) (internal citations and quotations omitted). 20 21 Pebble, 215 P.3d at 1077 (citing Pullen, at 923 P.2d at 63-64). 22 at 1077.

17FSHB Certification Page 4 the legislature s ability to allocate state assets among competing needs. 23 Thus, the relevant question to analyze if a regulatory initiative unlawfully appropriates state assets is whether it gives the asset, fish habitat, entirely to one group at the expense of another. 24 Not, as the Department of Law asserts, whether a specific activity could cause enough harm to fall within the regulatory restrictions in the initiative, or if any specific or hypothetical proposed project might fail to meet permitting restrictions. The answer to the relevant question is no. The initiative does not give anadromous habitat to any one group. Rather, it retains the legislature s ability to authorize the use of resources among competing uses and regulates all uses equally and uniformly based on a sliding scale that simply limits the amount of harm to an economically valuable state asset. The revised 17FSHB initiative also does not create a permitting scheme at the expense of any specific group. Projects and uses of any type can still occur in salmon habitat, so long as they do not cause impermissible significant adverse effects to fish habitat and fish and wildlife species. The Pebble court concluded that the initiative, which sought to protect the statewide public interest in water quality by limiting the discharge or release of certain toxic pollutants on the land and waters of the state, would not make a constitutionally impermissible appropriation. 25 The revised 17FSHB initiative, like the 07WTR3 initiative at issue in Pebble, is a natural resource management initiative that regulates a public asset, but it does not give-away that asset because it does not target[] any particular person or group or entity... to receive state money or property, 26 nor is there any indication that by passing the initiative, the voters would be voting themselves money or property. The revised 17FSHB also does not narrow the legislature s freedom to allocate. Just like the initiative in Pebble, the revised 17FSHB is a permissible management or regulatory policy because its manifest intent is to protect and preserve fish and wildlife habitat, and it does not target any one use. Department of Law s reliance on Alliance of Concerned Taxpayers to determine how likely it is that 17FSHB restricted hypothetical uses, is inapplicable to the kind of regulatory scheme proposed by 17FSHB. 27 The fact that 17FSHB provided a permitting scheme where ADF&G could make a determination that a project in fish habitat will cause adverse effects too severe to be permitted, as proposed, is not evidence that the measure creates an impermissible appropriation. Unlike the initiative in McAlpine, it does not take a readily calculable amount of assets and devote it to a certain purpose. Nor like Alliance does it provide the voters with the opportunity to veto a specific use of funds. 23 Lt. Gov. of State v. Alaska Fisheries Conservation Alliance, Inc., 363 P.3d 105, 109 (Alaska 2015). See also Hughes v. Treadwell, 341 P.3d 1121, 1129 (Alaska 2015) (discussing allowable subjects for initiatives including to regulate the use of public assets ). 24 Pebble, 215 P.3d at 1077. 25 Pebble, 215 P.3d at 1069, 1073-75. 26 Parnell, 215 P.3d at 1075. 27 June 30, 2017 Letter at p. 5.

17FSHB Certification Page 5 The issue in Alliance was about a provision that allowed voters to veto capital projects, i.e. essentially redirect a specific amount of money for a very specific purpose. 28 The fact that the Court also looked at how likely it was that the voters might take action is testament to how strictly the Court seeks to construe ballot measures and allow them to move forward. Even language that potentially reallocated funds away from certain projects was not an unlawful allocation if it was reasonably unlikely to occur. 29 And in McAlpine the Court struck one provision that allocated a specific amount of property, but allowed another provision that would require that state property be devoted to community colleges. 30 The court found it significant that the initiative sentence that devoted state land to community colleges was unlike statutory provisions setting aside money to pay interest and principal on certain notes or bonds because the dollar amounts though not specified in the statute, are readily calculable. 31 The Department of Law s conclusion that 17FSHB creates an impermissible appropriation also relies heavily on an interpretation of a newspaper editorial by the ballot initiative committee about 17FSHB. Department of Law concludes that because your stated purpose [is] to prevent certain projects that will damage salmon habitat and that the 17FSHB initiative will require denial of a permit for these and similar projects the legislature will be deprived of the discretion to devote state waters to these uses. 32 The Department of Law s interpretation of and reliance on the May 17, 2017 editorial to determine the sponsors intent is not supported. First, the interpretation of the editorial is incorrect. The column acknowledges recent megaprojects including the proposed Pebble Mine, that, as designed threaten fishing livelihoods and salmon. 33 The sponsors discuss how the proposals have united Alaskans in recognizing the importance of salmon protection. 34 The sponsors characterize their initiative as a ballot initiative to improve protections for wild salmon. 35 Specifically they state that their intent is to update Title 16... by giving the Alaska Department of Fish and Game clear standards about what kind of development is compatible with salmon health. 36 They also expressly state their continued support for those Alaskans involved with mining, oil and logging ( We know a lot of miners, oil industry workers, and loggers. We re not interested in putting them out of work ). 37 These statements do not 28 Alliance of Concerned Taxpayers, Inc, v. Kenai Peninsula Borough, 273 P.3d 1128, 1130 (Alaska 2012). 29 30 McAlpine v. University of Alaska, 762 P.2d 81 (Alaska 1988).(holding that requirement that state property be devoted to the community college system did not violated the prohibition on initiatives because it was unlikely the legislature would refuse any allocation at all). 31 32 June 30, 2017 Letter at p. 5. 33 Mike Wood, et al., It s Up To Us To Protect Alaska Salmon Now, Alaska Dispatch News (May 17, 2017) https://www.adn.com/opinions/2017/05/17/its-up-to-us-to-protect-alaska-salmon-now/ [last visited July 10, 2017]. 34 35 36 37

17FSHB Certification Page 6 support Department of Law s conclusion that the intent of 17FSHB was to ban Pebble, Chuitna or the Susitna Dam. It simply provides examples of why more regulation is needed to prevent harm to fish habitat and Alaska s fisheries while still allowing other uses. These statements do not convert an allowable regulatory proposal into an unlawful appropriation. Second, in relying on the editorial, the Department of Law inappropriately applied the law for determining sponsor intent. The general rule of statutory construction on sponsors intent for ballot initiatives applies only to those measures actually enacted by the voters: In determining the meaning of legislation enacted through initiative, or referendum, the courts will look to the published arguments made in connection with the vote upon such measures. 38 Pebble is the only Alaska case where a court reviewed an initiative that had been certified, but not yet been put before the voters. 39 That court reiterated the general rule cited in Kritz, and then relied on the Lt. Governor s summary statement, which had been seen by the 30,000 registered voters who signed the ballot petition, and the language of the initiative s purpose section in determining the meaning of adverse effects. 40 There is no legal support for the use of a newspaper editorial to determine the intent of the ballot sponsors before certification in making the legal determination of whether the initiative includes an impermissible appropriation. Furthermore, the best indication of the intent of the sponsors is found in the language of 17FSHB itself. Section 1 of the initiative, which has not changed, is a policy statement evincing the sponsors intent: to ensure sustainable fisheries and the resources that support fish and wildlife while ensuring that development activities comply with standards to achieve those protections. The stated intent falls squarely within the confines of the law for initiatives that regulate public assets. Turning to the Department of Law s specific objections, the letter identifies four provisions of 17FSHB that the Department of Law argues could be interpreted to make an appropriation by depriving the legislature of its exclusive discretion to allocate state assets among competing needs. 41 The Department of Law concludes that 17FSHB would outright prohibit the use of anadromous waters for certain development purposes, leaving insufficient discretion to the legislature to determine how to allocate those state assets and thus appropriate them. 42 This conclusion requires an extension of the current initiative case law. The Department of Law suggests that the key question when analyzing whether an initiative indirectly unlawfully appropriates state assets is how likely a restriction must be on the legislature s ability to allocate resources among competing uses. 43 However, existing case precedent that analyzes lawful regulatory ballot measures suggests otherwise. The indirect impact on other uses, even if there are examples of particular development projects that might 38 Falcon v. Alaska Pub. Offices Comm'n, 570 P.2d 469, 472, n. 6 (Alaska 1977) (quoting 2 Sutherland, Statutory Construction s 5016 at 507 (3d ed. 1943), See also Alaskans for a Common Language, Inc. v. Kritz, 170 P.3d 183, 193 (Alaska 2007). 39 Pebble, 215 P.3d at 1076. 40 41 June 30, 2017 Letter at p. 2. 42 Letter at 6. 43 Letter at 5.

17FSHB Certification Page 7 not be permitted under the proposed law, does not change an otherwise permissible regulation into an impermissible allocation. 44 While we believe the provisions comply with Constitutional requirements, we have rewritten the four provisions the Department of Law objected to in an effort to quickly resolve any remaining impediments to certification. These changes are discussed below. The proposed changes clarify or increase legislative discretion consistent with existing precedent. It is important to note that each of the provisions outlined below applies only after the Commissioner of Fish and Game has worked with the applicant to avoid or minimize significant adverse effects consistent with revised 17FSHB section 16.05.887(a). And each provision is consistent with the legislature s direction that ADF&G manage, protect, maintain, improve, and extend the fish, game and aquatic plant resources of the state in the interest of the economy and general well-being of the state. 45 1. Water Treatment The provision in 17FSHB stated:... the commissioner shall not issue an anadromous fish habitat permit for any activity that will... (3) necessitate water treatment, groundwater pumping, or other means of mechanical, chemical, or human intervention, maintenance or care in perpetuity; 46 The revised 17FSHB now states:... [THE COMMISSIONER SHALL NOT ISSUE] an anadromous fish habitat permit may not be granted for an activity that will... (3) store or dispose of mining waste, including overburden, waste rock, and tailings in a way that could result in the release or discharge of sulfuric acid, other acids, dissolved metals, toxic pollutants or other compounds that will adversely affect, directly or indirectly, anadromous fish habitat, fish, or wildlife species that depend on anadromous fish habitat; [NECESSITATE WATER TREATMENT, GROUNDWATER PUMPING, OR OTHER MEANS OF MECHANICAL, CHEMICAL, OR HUMAN INTERVENTION, MAINTENANCE OR CARE IN PERPETUITY]; 44 Hughes v. Treadwell, 341 P.3d 1121, 1129 (Alaska 2015) (quoting Municipality of Anchorage v. Holleman, 321 P.3d 378, 385 (Alaska 2014) ( we have never held that any effect on public resources triggers the prohibition on direct legislation; nearly all legislation involves public assets to some degree. ). 45 AS 16.05.020. 46 17FSHB Initiative Section 7, Sec. 16.05.887(a)(3).

17FSHB Certification Page 8 This language is similar to the language approved by the Alaska Supreme Court in Pebble 47 and previously approved by the Department of Law. 48 It retains legislative discretion because, as discussed by the court in reviewing 07WTR3, the language leaves to the legislature the discretion to determine what amounts of specific toxic pollutants may or may not be discharged at a mining site. 49 It only prohibits mining waste that could result in adverse effects to anadromous fish habitat. The change to the last sentence of the (a) also tracks the language of 07WTR3 and clarifies that the enumerated elements are the regulatory basis for fish habitat permits. 2. Dewatering of Fish Habitat The provision in 17FSHB stated: The commissioner shall not issue an anadromous fish habitat permit for any activity that will... (5) dewater anadromous fish habitat for any duration sufficient to cause permanent or long-lasting adverse effects to anadromous fish habitat or fish and wildlife species; or 50 To increase legislative discretion, we propose simplifying the language to focus on water withdrawals, which is tied to the commissioner s discretion to determine when there are adverse effects to fish and wildlife species. The revised 17FSHB states:. [THE COMMISSIONER SHALL NOT ISSUE] an anadromous fish habitat permit may not be granted for an activity that will... (5) withdraw water from [DEWATER] anadromous fish habitat in an amount that will [FOR ANY DURATION SUFFICIENT TO CAUSE PERMANENT OR LONG-LASTING] adversely affect [EFFECTS TO] anadromous fish habitat or fish and wildlife species; or The measure deletes the reference to permanent, thus removing any potential that the measure would not allow permanent dewatering under some conditions. Further, it permits ADF&G, as delegated by the legislature, and like the 07WTR3 initiative, to determine when a proposed activity adversely affects fish and wildlife. 47 Pebble, 215 P.3d at 1075. 48 2007 Inf. Op Att y Gen. at 13 (Oct. 17; 663-07-0179) ( We think the two standards in 07WTR3 are permissible regulation ). 49 Pebble, 215 P.3d at 1077. 50 17FSHB Initiative Section 7, Sec. 16.05.887(a)(5).

17FSHB Certification Page 9 3. Relocation of a Stream The provision in 17FSHB stated: The commissioner shall not issue an anadromous fish habitat permit for any activity that will... (6) permanently relocate a stream or river if the relocation will disrupt fish passage between, or will cause permanent or long-lasting adverse effects to, anadromous fish habitat or fish and wildlife species; 51 The revised 17FSHB states: [THE COMMISSIONER SHALL NOT ISSUE] an anadromous fish habitat permit may not be granted for an activity that will... (6) [PERMANENTLY] dewater and relocate a stream or river if the relocation does not provide for fish passage, [WILL DISRUPT FISH PASSAGE BETWEEN] or will adversely affect [CAUSE PERMANENT OR LONG-LASTING ADVERSE EFFECTS TO] anadromous fish habitat, fish, or [FISH AND] wildlife species; This change preserves legislative discretion to approve the dewatering and relocating of streams. It only prohibits the action if it could result in adverse effects to fish and wildlife species. ADF&G retains the discretion to determine if fish and wildlife will be adversely affected by the stream relocation. 4. Substantial Damage Substantial damage is defined in the initiative under the test established in Section 5, AS 16.05.877. The Department of Law s identification of the problematic language was summarized as follows: impair or degrade habitat; interfere with or prevent the spawning, rearing, or migration of anadromous fish at any life stage; result in conditions known to cause increased mortality of anadromous fish at any life stage; or lower the capacity of anadromous waters to maintain aquatic diversity, productivity or stability, and for any of these situations the habitat is not likely to recover or be restored within a reasonable period to a level that sustains the water body's natural and historic levels of anadromous fish, other fish, and wildlife. 52 To address the Department of Law s concerns, the revised 17FSHB has been modified. 51 17FSHB Initiative Section 7, Sec. 16.05.887(a)(6). 52 June 30, 2017 Letter at p. 2 referencing 17FSHB Section 5, Sec. 16.05.877(a) and (b)(2).

17FSHB Certification Page 10 Section 5 of 17FSHB, 16.05.877(b)-(c) stated in full: (b) The commissioner shall find that the proposed activity will cause substantial damage if: (1) despite the application of scientifically proven, peer reviewed and accepted mitigation measures under AS 16.05.887, the proposed activity is likely to have significant adverse effects on anadromous fish habitat as defined in (a)(1)-(5) of this section; and (2) the anadromous fish habitat will not likely recover or be restored within a reasonable period to a level that sustains the water body's, or portion of the water body's, natural and historic levels of anadromous fish, other fish, and wildlife that depend on the health and productivity of that anadromous fish habitat. (c) In determining whether anadromous fish habitat will recover or be restored within a reasonable period under this section, the commissioner shall account for the life stage, life span, and reproductive behavior of the species of anadromous fish that depend on the habitat affected by the proposed activity using the best available scientific information. (d) In determining whether affected anadromous fish species will recover to natural and historic levels, the commissioner shall consider likely post-project conditions known to result in the mortality of anadromous fish at any life stage, and known to interfere with or prevent spawning, rearing or migration of anadromous fish using the best available scientific information. The ballot sponsors have made the following changes to the revised Section 5, 16.05.877(b)-(c): (b) The commissioner shall find that the proposed activity will cause substantial damage to anadromous fish habitat and fish and wildlife species if, [(1):] despite the application of scientifically proven, peer reviewed and accepted mitigation measures under AS 16.05.887, [THE PROPOSED ACTIVITY IS LIKELY TO HAVE SIGNIFICANT ADVERSE EFFECTS ON ANADROMOUS FISH HABITAT AS DEFINED IN (A)(1)-(5) OF THIS SECTION; AND(2)] the anadromous fish habitat will be adversely affected such that it will not likely recover or be restored within a reasonable period to a level that sustains the water body's, or portion of the water body's,[natural AND HISTORIC LEVELS OF] anadromous fish, other fish, and wildlife that depend on the health and productivity of that anadromous fish habitat. (c) In determining whether anadromous fish habitat will recover or be restored within a reasonable period under this section, the commissioner shall account for the life stage, life span, and reproductive behavior of the species of anadromous fish that depend on the habitat adversely affected by the proposed activity using the best available scientific information. (d) In determining whether adversely affected anadromous fish species will remain sustainable and recover, [TO NATURAL AND HISTORIC LEVELS] the commissioner shall consider likely post-project conditions known to result in the

17FSHB Certification Page 11 mortality of anadromous fish at any life stage, and known to interfere with or prevent spawning, rearing or migration of anadromous fish using the best available scientific information. These changes provide broader legislative discretion to approve projects that require restoration after a project is complete. The new version removes the requirement that mitigation measures need to ensure that fish populations will be restored to natural or historic levels. In effect, ADF&G retains the discretion to determine when a proposed activity will cause substantial damage to fish and wildlife populations and when anadromous fish habitat cannot be restored to effectively sustain anadromous fish and wildlife species adversely affected by the proposed activity. We believe these changes remove any remaining obstacles to the certification of the revised 17FSHB. The resulting ballot initiative does not outright prohibit the use of anadromous waters for certain development projects, nor does it impermissibly regulate competing uses of anadromous waters for the benefit of one group to the exclusion of another. Rather it establishes a regulatory process where ADF&G would regulate the amount of harm that development projects are permitted to cause in anadromous fish habitat: Just as the proposed measures in 07WTR3 would have established the amount of toxic pollutants that certain specific mining operations could release into waters used by humans and salmon. We request that you expedite your review of these changes. Given the minor nature of these changes, and the fact that most of the initiative has already passed your review, we request that you complete the process as soon as possible, and within 30 days. The revised 17FSHB has been filed with the Division of Elections and is also attached here. Thank you for your attention to this matter. Sincerely, Valerie Brown Legal Director, Trustees for Alaska cc: Lieutenant Governor Byron Mallott