Wildlife Initiatives Unconstitutional
COMPASS: Points of view from the community

Wayne E. Heimer / Compass / Anchorage Daily News / July 28, 2003


The present ban-the-bait bear hunting initiative's sponsors want Alaskans to make hunting bears with bait a criminal offense. I infer they are either against hunting bears or emotionally uncomfortable with this traditional method of bear harvest. This initiative, like previous wildlife management initiatives, promises to be emotionally divisive if it gets on the ballot.

Emotion fuels the wildlife management initiative industry in Alaska, and it leads to division. We should expect the initiative's sponsors to make a gut-level appeal to "the right of the people to vote" on this issue. This sounds great, but we should act intellectually, not emotionally concerning basic constitutional issues like this one. Wildlife initiatives, though cloaked in noble rhetoric, abuse the initiative process.

We should reserve the initiative/referendum process for serious social business, not cheapen it by codifying a majority's personal moral and ethical preference as law. Alaskans must learn this process functions best to repeal (not establish) bad laws and understand we simply don't get to vote on everything.

Alaska's Constitution: A Citizen's Guide, (available at your local legislative information office) explains the rules with respect to citizen's initiatives. My 3rd Edition (1992) says:

"... initiative and referendum are known as 'direct democracy' or 'direct legislation' provisions. They first appeared in this country during the populist reform movement of the early 20th century, and are found in one form or another in about half of the states ...

"Generally speaking, Alaska's convention delegates were ambivalent about direct democracy, for while they authorized in on the one hand, they circumscribed its use on the other. For example, certain subjects are off-limits." (Section 7, Page 207)

This Section 7 is from Article XI of Alaska's Constitution. It says:

"The initiative shall not be used to dedicate revenues, make or repeal appropriations, create courts, define the jurisdiction of courts or prescribe their rules, or enact local or special legislation ..."

The Citizen's Guide elaborates: "An expansive definition of 'appropriation' has undone several initiatives." If you've been around long enough to remember the Beirne Homestead Initiative, you'll remember that, when challenged after passage, the Alaska Supreme Court threw it out because it would "deplete the state ... of valuable assets just as surely as an initiative allotting to residents ... large sums of money."

More recently, the Peace Corps Permanent Fund initiative of last November was ruled inappropriate. In this case, our Supreme Court blocked giving PFD checks to Alaska Peace Corps volunteers who couldn't come back to meet the PFD residence requirements. It seemed a good idea, but it was outside the allowable issues for ballot initiatives because it usurped the Legislature's allocation powers.

You may consider this a stretch, but I suggest bears, like land and the Permanent Fund, are commonly-held Alaska resources. Before you disagree, check Alaska's Constitution Article VIII, Sec. 3, and the Citizen's Guide. Article VIII, Section 3 says, "wherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use." The 3rd Citizen's Guide (Page 152) says, "emphatically prohibits the state from granting to any person or group privileged or monopolistic access to a natural resource." The baiting initiative would grant "nonbaiters" monopolistic access to bears.

I think these accepted and approved interpretations of Alaska's Constitution suggest PFD checks, land and bears are all publicly-held state assets with defined monetary values, and they can only be allocated by the Legislature (see Article XI, Section 7 above).

So it looks to me like any initiative that would allocate (via exclusion of a traditional hunting technique) bears to a "privileged" or "enlightened" group of specific users (or nonusers) should be ruled out-of-bounds.

I think the lieutenant governor's office should have looked at these issues before certification of any wildlife management initiative dealing with hunting methods. It apparently didn't. After certification, there is a 30-day period when anyone harmed by an initiative can request judicial review. I suggest past and present wildlife allocation initiatives are unconstitutional. They beg for judicial review and remedy.

Wayne E. Heimer worked as a research/management biologist and analyzed state and federal harvest regulations during a 25-year career with the Alaska Department of Fish and Game. He is not a bear baiter and has never killed a bear.

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