concurring.
I concur with the court in holding that the judgment of the superior court should be amended to provide that the Lieutenant Governor be permanently enjoined from placing the F.I.S.H. initiative on the 1996 general election ballot. However, I do not agree that the initiative violates article XI, section 7 of the Alaska Constitution. Rather, I conclude that the initiative violates article XII, section 11 of the Alaska Constitution, and for this reason it cannot be placed on the ballot.
The court holds that “[ijnsofar as loss, use, or exploitation of wildlife directly affects Alaska’s fish, it is a state ‘asset.’ ” Op. at 59. The state’s interest in migrating salmon is sufficiently strong “to warrant characterizing such salmon in their natural state as assets of the state which may not be appropriated by initiative.” Op. at 61 (emphasis added). I cannot accept the conclusion that fish, or other wildlife, are “assets of the state.”
It is correct to observe, as does the court, that wildlife is of significant value to the state. Unquestionably a “precipitous decline” in wildlife population would affect the state’s finances for reasons identified by the court. Yet fish and wildlife occurring in their natural state are not remotely like the forests found on state owned lands, or hydrocarbons and minerals found on or under state owned lands. These are assets of the state in a sense of the term that readily can be understood. However, it is counter-intuitive to suggest that migratory wildlife is “an asset of the state.” It is an asset to the State, not of the State.
In addition to the court’s conclusion being counter-intuitive, there is virtually no case support for the proposition. The court quotes from Owsichek v. State, Guide Licensing and Control Board, 763 P.2d 488, 495 (Alaska 1988), which cited to and quoted from Metlakatla Indian Community, Annette Island Reserve v. Egan, 362 P.2d 901 (Alaska 1961), aff'd 369 U.S. 45, 82 S.Ct. 552, 7 L.Ed.2d 562 (1962). In Metlakatla, the court stated that “[tjhese migrating schools of fish, while in inland waters, are the property of the state, held in trust for the benefit of all the state....” Id. at 915 (emphasis added). The court notes candidly that the state ownership doctrine, given the blessing of the United States Supreme Court in Geer v. Connecticut, 161 U.S. 519, 16 S.Ct. 600, 40 L.Ed. 793 (1896), was overruled by the Court in Hughes v. Oklahoma, 441 U.S. 322, 99-S.Ct. 1727, 60 L.Ed.2d 250 (1979). The Court termed the state ownership doctrine a legal fiction that did not conform to practical realities.
The court also correctly notes that Hughes did not dictate a retreat from the trust doctrine advanced in Geer. It is this trust relationship, repeatedly articulated and embraced by this court, that lies at the core of the present dispute. This relationship between migratory fish and game, the State of Alaska, and the people of the State of Alaska is not an “asset of the state” in any sense of the term.
The trust relationship derives generally from article VIII of the Alaska Constitution, and in this case specifically from article VIII, section 3, which provides that “[wjherever occurring in their natural state, fish, wildlife, and waters are reserved to the people for common use.” This section, generally referred to as the “common use clause,” can be amended by the people of the State, for that right is guaranteed them by article XIII, section 1 of the Alaska Constitution. However, it cannot be amended by the legislature, only implemented within the narrow confines of the limitations of the common use clause, which has created the trust relationship between the State and its people.
Article XII, section 11 of the Alaska Constitution provides in part that “[ujnless clearly inapplicable, the law-making powers assigned to the legislature may be exercised by the people through the initiative, subject to the limitations of Article XI.” Since article VIII, section 2 of the Alaska Constitution grants the legislature law-making powers *66over natural resources, the question becomes whether law-making powers through initiative are “clearly inapplicable” to implementation of the trust relationship established by article VIII, section 3. In my view, it is precisely because of the trust relationship that law-making powers through initiative are “clearly inapplicable.”
Although the constitutional debate is not particularly informative, what does become clear from Delegate V. Fischer’s and Delegate McLaughlin’s remarks, see 4 Proceedings of the Alaska Constitutional Convention, at 2828 and 2847-51 (1955), is that “unless clearly inapplicable” does not mean “unless specifically excluded.” The term “unless clearly inapplicable” became part of the constitution, the term “unless specifically excluded” did not. Undefined, “unless clearly inapplicable” thus becomes subject to interpretation.
In my view an initiated law is “clearly inapplicable” to the allocation of a resource reserved to the people for their common use. This is particularly so when the State holds the resource in trust for all the people of the State. The people, as beneficiaries of this trust, cannot dictate to the trustee the manner in which the trust is to be administered.
The uniqueness of this trust relationship in our government distinguishes it from most other relationships created by the Alaska Constitution. Additionally, the structure of the Department of Fish and Game belies the notion that fish and game management decisions may be left to initiated laws. The Commissioner of Fish and Game serves a specific term of five years, AS 16.05.010, unlike other commissioners. Also unlike other commissioners, who simply are appointed by the governor, subject to legislative approval, the Boards of Fisheries and Game present to the governor a list of qualified nominees for the office of Commissioner of Fish and Game. The governor makes the appointment from the list, or a supplemental list if he or she requests one. The appointment is subject to legislative approval. AS 44.39.030. Unlike other commissioners, specific professional qualifications for Commissioner of Fish and Game are required by statute, including “knowledge of the requirements for the protection, management, conservation, and restoration of the fish and game resources of the state.” AS 16.05.010. Also unlike other commissioners, who serve at the pleasure of the governor, a proceeding for removal of the Commissioner must be initiated by a resolution by either the Board of Fisheries or Board of Game, who request the Commissioner’s removal. Only then can the governor make a final decision to remove the Commissioner. AS 44.39.050.
The trust relationship, the structure of the Department of Fish and Game, the agency responsible for implementing the State’s trust responsibilities for the benefit of all the people of the State, and the detailed professional requirements that must be possessed by the Commissioner of Fish and Game, the executive who directs that agency, persuasively demonstrate the clear inapplicability of initiated laws which dictate policies regarding the “protection, management, conservation, and restoration of the fish and game resources of the state.”
Long ago we set upon a course that defined the State’s responsibility under the common use clause as that of a trustee for its people, the beneficiaries of that trust. I am persuaded that the characterization of that relationship was, and is, correct. I am persuaded similarly that the constitutional grant of the right of initiative is clearly inapplicable to alter such a relationship.