Summer Sagoonick v. State of Alaska ( 2022 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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THE SUPREME COURT OF THE STATE OF ALASKA
SUMMER SAGOONICK; LINNEA L., a )
minor, by and through her guardian, ) Supreme Court No. S-17297
HANK LENTFER; TASHA ELIZARDE; )
CADE TERADA; KAYTLYN KELLY; ) Superior Court No. 3AN-17-09910 CI
BRIAN CONWELL; JODE SPARKS; )
MARGARET “SEB” KURKLAND; ) OPINION
LEXINE D., a minor, by and through her )
guardian, BERNADETTE ) No. 7583 – January 28, 2022
DEMIENTIEFF; ELIZABETH )
BESSENYEY; VANESSA DUHRSEN; )
ANANDA ROSE AHTAHKEE L., a )
minor, by and through her guardian, )
GLEN “DUNE” LANKARD; GRIFFIN )
PLUSH; CECILY S. and LILA S., minors, )
by and through their guardians, )
MIRANDA WEISS and BOB )
SHAVELSON; and ESAU SINNOK, )
)
Appellants, )
)
v. )
)
STATE OF ALASKA; OFFICE OF )
GOVERNOR and GOVERNOR MIKE )
DUNLEAVY, in an official capacity; )
DEPARTMENT OF ENVIRONMENTAL )
CONSERVATION and )
COMMISSIONER JASON BRUNE, in an )
official capacity; DEPARTMENT OF )
NATURAL RESOURCES; ALASKA )
OIL & GAS CONSERVATION )
COMMISSION; ALASKA ENERGY )
)
AUTHORITY; and REGULATORY )
COMMISSION OF ALASKA, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, Gregory Miller, Judge.
Appearances: Brad D. De Noble, De Noble Law Offices
LLC, Eagle River, and Andrew L. Welle, Eugene, Oregon,
for Appellants. Anna R. Jay and Laura E. Wolff, Assistant
Attorneys General, Anchorage, and Kevin G. Clarkson,
Attorney General, Juneau, for Appellees. Elizaveta Barrett
Ristroph, Fairbanks, for Amicus Curiae League of Women
Voters Alaska. Teresa B. Clemmer, Peter Van Tuyn, and Jen
Marlow, Bessenyey & Van Tuyn LLC, Anchorage, for Amici
Curiae Law Professors. Robert John, Law Office of Robert
John, Fairbanks, for Amici Curiae Alaska Inter-Tribal
Council, Eyak Preservation Council, and Native Conservancy
Land Trust.*
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
WINFREE, Justice.
MAASSEN and CARNEY, Justices, dissenting in part.
I. INTRODUCTION
Alaska Constitutional Convention keynote speaker E.L. “Bob” Bartlett,
territorial Alaska’s delegate to Congress and later one of Alaska’s original United States
Senators, spoke on November 8, 1955 about the importance of Alaska’s natural
resources for future generations: “[F]ifty years from now, the people of Alaska may very
*
We thank amici curiae for their participation in this appeal.
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well judge . . . this Convention not by the decisions taken upon issues like local
government, apportionment, and the structure and powers of the three branches of
government, but rather by the decision taken upon the vital issue of resources policy.”1
Bartlett particularly stressed the need to protect Alaska’s natural resources from the
“robber baron philosophy” that in the past had damaged the territory.2 And a convention
consultant later noted: “[W]hat we say about natural resources is not limited simply to
lands and to fish . . . , but rather being concerned with how we as human beings are
going to utilize those so that they become a part of the continuing future development of
an area like Alaska.”3
More than six decades after Alaska’s constitution was drafted, we consider
its natural resources provisions in a manner likely not contemplated by Bartlett or the
convention delegates. Concerns about protecting and developing natural resources for
the State’s financial support now co-exist with concerns that constitutionally driven
resource development creates an existential threat to human life and therefore itself
violates individuals’ fundamental rights under Alaska’s constitution.
A number of young Alaskans — including several Alaska Natives — sued
the State, alleging that its resource development is contributing to climate change and
1
6 Proceedings of the Alaska Constitutional Convention (PACC) App. II at
3 (Nov. 8, 1955) (address of Cong. Del. E.L. Bartlett); see also VICTOR FISCHER,
ALASKA’S CONSTITUTIONAL CONVENTION 130 (1975).
2
FISCHER, supra note 1, at 130; see also Mallot v. Stand for Salmon, 431
P.3d 159, 164 (Alaska 2018) (“For more than two centuries, Alaska’s economy has been
centered around the development and harnessing of its natural resources, from the fur
trade of the 18th and 19th Centuries and the gold rushes of the 1890s, to the growth of
copper mining and commercial fishing in the early 20th Century and the oil discoveries
of the 1950s and 1960s.”).
3
1 PACC 475 (Dec. 1, 1955) (statement of Vincent Ostrom).
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adversely affecting their lives. They sought declaratory and injunctive relief based on
allegations that the State has, through existing policies and past actions, violated both the
constitutional natural resources provisions and their individual constitutional rights. The
superior court dismissed the lawsuit, concluding that the injunctive relief claims
presented non-justiciable political questions better left to the other branches of
government and that the declaratory relief claims should, as a matter of judicial
prudence, be left for actual controversies arising from specific actions by Alaska’s
legislative and executive branches. The young Alaskans appeal, raising compelling
concerns about climate change, resource development, and Alaska’s future. But we
conclude that the superior court correctly dismissed their lawsuit.
II. SEPARATION OF POWERS IN ALASKA’S NATURAL RESOURCES
MANAGEMENT
A. Constitutional Natural Resource Policy And Framework —
Article VIII
It was widely recognized that the Alaska Territory’s future success as a
state would depend upon natural resource development.4 Statehood bills pending during
the Constitutional Convention contemplated transferring to the proposed state substantial
federal land, subsurface mineral rights, and the authority to manage fish and wildlife.5
4
GORDON HARRISON, ALASKA LEGISLATIVE AFFAIRS AGENCY, ALASKA’S
CONSTITUTION: A CITIZEN’S GUIDE 129-30 (5th ed. 2021), available at:
http://akleg.gov/docs/pdf/citizens_guide.pdf; see also PUBLIC ADMINISTRATION SERVICE,
THE ALASKAN CONSTITUTION AND THE STATE PATRIMONY: THE CONSTITUTION AND
NATURAL RESOURCES 14 (1955) (stating, in report to convention delegates, that “[f]ew
will quarrel with the statement that Alaska’s greatest single source of potential wealth
lies below the surface of the land”).
5
FISCHER, supra note 1, at 129-30 (“According to the terms of pending
Alaska statehood bills, more than 100 million acres would be transferred from federal
to state ownership.”); HARRISON, supra note 4, at 129; cf. Alaska Statehood Act, Pub.
(continued...)
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The convention delegates “sought to enshrine in the state constitution the principle that
the resources of Alaska must be managed for the long-run benefit of the people as a
whole.”6 Rather than developing a detailed constitutional code governing resource
management,7 the delegates sought to protect the long-term viability of Alaska’s natural
resources from “the indifference or avarice of future generations” by fixing “the general
concept of the public interest” in both Alaska law and “the consciousness of Alaskans.”8
The delegates incorporated concepts such as “common use”9 and “sustained yield”10 to
5
(...continued)
L. No. 85-508, § 6, 72 Stat. 339, 340-41 (1958) (allowing Alaska to select over 100
million acres of federal public lands and contemplating eventual transfer to Alaska of
authority to manage fish and wildlife); Alaska Land Transfer Acceleration Act, Pub. L.
No. 108-452, 118 Stat. 3575 (2004) (facilitating transfer to Alaska of some federal lands
selected pursuant to Alaska Statehood Act).
6
HARRISON, supra note 4, at 129. But see William L. Iggiagruk Hensley &
John Sky Starkey, Alaska Native Perspectives on the Alaska Constitution, 35:2 ALASKA
L. REV. 129-37 (2018) (asserting connection between insufficient representation of
Alaska Natives at Constitutional Convention and insufficient protections for Alaska
Native rights under article VIII).
7
See Native Vill. of Elim v. State, 990 P.2d 1, 7 (Alaska 1999) (“The plain
language of [article VIII, section 4] requires resource managers to apply . . . principles;
it does not mandate the use of a predetermined formula, quantitative or qualitative.”).
8
HARRISON, supra note 4, at 129; see West v. State, Bd. of Game, 248 P.3d
689, 696 (Alaska 2010) (“The [natural resources] article’s primary purpose is to balance
maximum use of natural resources with their continued availability to future
generations.” (alteration in original) (quoting THE ALASKA CONSTITUTIONAL
CONVENTION, PROPOSED CONSTITUTION FOR THE STATE OF ALASKA: A REPORT TO THE
PEOPLE OF ALASKA (1956))).
9
Alaska Const. art. VIII, § 3 (“Wherever occurring in their natural state, fish,
wildlife, and waters are reserved to the people for common use.”); see Owsichek v. State,
Guide Licensing & Control Bd., 763 P.2d 488, 493 (Alaska 1988) (“[The common use
(continued...)
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promote “a harmonious balance between consumption, preservation, and expansion of
natural resources.”11 They further protected the public interest by requiring public notice
and development of statutory guidelines for state property disposals.12
Article VIII, sections 1 and 2 of the Alaska Constitution express Alaska’s
resource development policy and direct the legislature to implement it:
9
(...continued)
clause] was a unique provision, not modeled on any other state constitution. Its purpose
was anti-monopoly. This purpose was achieved by constitutionalizing common law
principles imposing upon the state a public trust duty with regard to the management of
fish, wildlife[,] and waters.”).
10
Alaska Const. art. VIII, § 4 (“Fish, forests, wildlife, grasslands, and all
other replenishable resources belonging to the State shall be utilized, developed, and
maintained on the sustained yield principle, subject to preferences among beneficial
uses.”). The glossary definition of “sustained yield” provided by the Constitutional
Convention’s Resources Committee is: “[T]he term ‘sustained yield principle’ . . . .
denotes conscious application insofar as practicable of principles of management
intended to sustain the yield of the resource being managed.” RESOURCES COMMITTEE
OF THE ALASKA CONSTITUTIONAL CONVENTION, Terms (1955), http://www.
akleg.gov/pdf/billfiles/ConstitutionalConvention/Folder%20210.pdf; see West, 248 P.3d
at 695-96 (discussing broad meaning of “sustained yield” in wildlife context); see also
AS 38.04.910(12) (defining “sustained yield” in public lands context as “the
achievement and maintenance in perpetuity of a high level annual or regular periodic
output of the various renewable resources of the state land consistent with multiple use”).
11
FISCHER, supra note 1, at 130; see also GERALD A.MCBEATH, THE ALASKA
STATE CONSTITUTION 157-59 (2011); HARRISON, supra note 4, at 130.
12
Alaska Const. art. VIII, § 10 (“No disposals or leases of state lands . . . shall
be made without prior public notice and other safeguards of the public interest . . . .”);
id. at §§ 9-10 (authorizing legislature to regulate state land disposals); see HARRISON,
supra note 4, at 130 (“With certain exceptions, [article VIII] allows the government to
sell, lease or give away public land and resources, but it may do so only in accordance
with constitutional and statutory guidelines, and all transactions must be in full public
view.”).
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Section 1. Statement of Policy. It is the policy of the
State to encourage the settlement of its land and the
development of its resources by making them available for
maximum use consistent with the public interest.[13]
Section 2. General Authority. The legislature shall
provide for the utilization, development, and conservation of
all natural resources belonging to the State, including land
and waters, for the maximum benefit of its people.[14]
13
See HARRISON, supra note 4, at 131 (“This is an emphatic statement that the
policy of the state is to encourage the development of its land and resources, but in a
manner that recognizes the collective interests of the people as the owners of these lands
and resources.”); see also MCBEATH, supra note 11, at 159 (“Delegates to the
constitutional convention were uniform in their belief that Alaska’s natural resources had
been ‘locked up’ and devalued by the negligent actions of the federal government and
absentee owners . . . . Thus, the delegates were committed to the maximum development
of Alaska’s resources. However, they hedged their need to exploit resources with the
requirement that resource use was a public trust.”).
14
See HARRISON, supra note 4, at 131 (“This section is a broad grant of
legislative authority to implement the policy enunciated in Section 1 . . . . In addition to
utilization and development, conservation appears as an objective of resource
management. The delegates understood the term in its traditional sense of ‘wise use.’ ”);
MCBEATH, supra note 11, at 159 (stating that delegates “were influenced by the modern
principles of resource conservation and use, such as sustained yield and multiple use,
which they made the constitutional objectives for all resource policy decisions, as
expressed in the phrase, ‘maximum use consistent with the public interest’ ” (quoting
Alaska Const. art. VIII, §1)); see also Kenai Peninsula Fisherman’s Coop. Ass’n v. State,
628 P.2d 897, 903 (Alaska 1981) (“The terms ‘conserving’ and ‘developing’ both
embody concepts of utilization of resources. ‘Conserving’ implies controlled utilization
of a resource to prevent its exploitation, destruction or neglect. ‘Developing’ connotes
management of a resource to make it available for use.”).
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Beyond those sections, article VIII explicitly addresses “common use”15 and
“sustained yield”;16 the “public domain” available for settlement and certain property
uses;17 disposition of property interests;18 mineral rights;19 water rights;20 fishing rights;21
15
See Alaska Const. art. VIII, § 3.
16
See id. § 4.
17
See id. §§ 5-7; State, Dep’t of Nat. Res. v. Alaska Riverways, Inc., 232 P.3d
1203, 1212-14 (Alaska 2010) (discussing article VIII, section 6 and “public domain”).
18
Alaska Const. art. VIII, § 8 (regarding leasing), § 9 (regarding sales and
grants), § 10 (regarding public notice).
19
Id. § 11 (regarding mineral rights), § 12 (regarding mineral leases).
20
Id. § 13 (regarding water rights), § 14 (regarding access to navigable
waters); see Tulkisarmute Native Cmty. Council v. Heinze, 898 P.2d 935, 940-41 (Alaska
1995) (acknowledging article VIII, section 13 constitutionalizes water appropriation
doctrine).
21
Alaska Const. art. VIII, § 15 (“No exclusive right or special privilege of
fishery shall be created or authorized in the natural waters of the State. This section does
not restrict the power of the State to limit entry into any fishery for purposes of resource
conservation, to prevent economic distress among fisherman and those dependent upon
them for a livelihood and to promote the efficient development of aquaculture in the
State.”); see McDowell v. State, 785 P.2d 1, 5-10 (Alaska 1989) (“[S]ection 15 . . . was
meant to ensure an equal right to participate in fisheries, regardless of where one
resides.”); Kenai Peninsula Fisherman’s Coop. Ass’n v. State, 628 P.2d 897, 903-04
(Alaska 1981) (interpreting article VIII, section 15).
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private property rights;22 equal treatment with respect to the use of natural resources;23
and the right of eminent domain for the access, extraction, and use of natural resources.24
Article VIII was, when approved, the most comprehensive state constitution
provision addressing natural resource management policies and principles,25 and it
reflects careful consideration of each government branch’s role in managing Alaska’s
22
Alaska Const. art. VIII, § 16 (“No person shall be involuntarily divested of
his right to the use of waters, his interests in lands, or improvements affecting either,
except for a superior beneficial use or public purpose and then only with just
compensation and by operation of law.”); see Alaska Riverways, Inc., 232 P.3d at 1213­
14 (interpreting article VIII, section 16 as applied to shoreland improvements made after
statehood).
23
Alaska Const. art. VIII, § 17 (“Laws and regulations governing the use or
disposal of natural resources shall apply equally to all persons similarly situated with
reference to the subject matter and purpose to be served by the law or regulation.”); see
McDowell, 785 P.2d at 9-11 (“[A]ny system which closes participation to some, but not
all, [fish and game permit] applicants will necessarily create a tension with article VIII[,
section 17].”); Owsichek v. State, Guide Licensing & Control Bd., 763 P.2d 488, 498
n.17 (Alaska 1988) (“[W]e [have] noted that [article VIII, section 17] may require ‘more
stringent review’ of a statute than does the equal protection clause in cases involving
natural resources.” (quoting Gilman v. Martin, 662 P.2d 120, 126 (Alaska 1983))).
24
Alaska Const. art. VIII, § 18 (regarding eminent domain for private ways
of necessity to obtain access to natural resources).
25
See HARRISON, supra note 4, at 129 (“In drafting [article VIII], delegates
were unable to refer to other state constitutions or the Model State Constitution for ideas
and guidance, as none of them dealt with natural resource policy as broadly as the
Alaskans thought necessary. At the time of Alaska’s constitutional convention, only the
Hawaii Constitution addressed natural resource policy in a separate article, and that
article was brief.” (emphasis omitted)). But cf. William L. Iggiagruk Hensley & John
Sky Starkey, Alaska Native Perspectives on the Alaska Constitution, 35:2 ALASKA L.
REV. 129-37 (2018) (asserting connection between insufficient representation of Alaska
Natives at Constitutional Convention and insufficient protections for Alaska Native
rights under article VIII).
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resources and textually establishes the legislature’s importance in this policy-making
area. We consider the legislature’s ensuing statutory policies and the young Alaskans’
claims in light of this constitutional framework.
B. The Political Branches’ Roles Under Article VIII
Article VIII, section 2, commands the legislature “to provide for the
utilization, development, and conservation of all natural resources belonging to the
State.” To satisfy this obligation the legislature has established numerous interrelated
statutory policies and delegated implementation authority to the executive branch. We
briefly describe the legislature’s policies, starting with land use policies, continuing with
specific relevant policies, and concluding with an environmental protection policy.
1. General land use and management policies
Title 38 of the Alaska Statutes contains the legislature’s general public land
enactments. The legislature’s overall land management policy mirrors article VIII,
section 1: “It is the policy of the state to encourage the settlement of its land and the
development of its resources by making them available for the maximum use consistent
with the public interest.”26 On a more detailed level the legislature has directed that state
lands be managed to balance both public and private purposes and that land use choice
26
AS 38.05.910; see Alaska Survival v. State, Dep’t of Nat. Res., 723 P.2d
1281, 1285 (Alaska 1986) (“Alaska’s Constitution and the Alaska Land Act, AS 38.05,
express a policy of encouraging settlement of the state’s lands ‘by making them available
for maximum use consistent with the public interest.’ ” (quoting Alaska Const. art. VIII,
§ 1; AS 38.05.910)), superseded on other grounds by statute, ch. 75, § 10, SLA 1987,
as recognized in Sullivan v. Resisting Env’t Destruction on Indigenous Lands (REDOIL),
311 P.3d 625, 630 (Alaska 2013).
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be determined through inventory, planning, and classification processes established in
AS 38.04.060-.070.27
The legislature has delegated to the Department of Natural Resources
(DNR), an executive branch agency, the duty to implement the legislature’s general
public lands policies.28 DNR classifies, and if necessary reclassifies, state lands for
various uses.29 DNR also has a duty to work with local governments and the public to
adopt, maintain, and revise regional land use plans.30
The legislature has further delegated to DNR authority to manage
“exploration, development, and mining” of resources on state lands31 and the authority
27
AS 38.04.005-.015 (stating general land classification and use policy,
public interest in making land available for private use, and public interest in retaining
state land in public ownership).
28
AS 38.04.060(a)-(b) (outlining commissioner’s duties); AS 38.04.910(1)
(identifying “commissioner” as commissioner of natural resources).
29
AS 38.04.065(e); AS 38.05.300; see also State v. Wiedner, 684 P.2d 103,
107 (Alaska 1984) (stating that AS 38.04.065 generally requires land use plans prior to
land classifications); cf. AS 38.05.300(a), (c) (establishing DNR’s discretion for
classification but restricting discretion to close large parcels of land to multiple-purpose
use and to preclude mineral exploration and mining unless necessary for land disposal
or certain projects). We previously have discussed Alaska’s land use management
procedures in more detail. See generally State, Dep’t of Nat. Res. v. Nondalton Tribal
Council, 268 P.3d 293, 294-96 (Alaska 2012); Alaska Survival, 723 P.2d at 1289-91.
30
AS 38.04.065(a), (d), (e); see also Denali Citizens Council v. State, Dep’t
of Nat. Res., 318 P.3d 380, 389 (Alaska 2014) (noting statutory duty to engage in
regional land use planning does not indicate plan provisions are legally enforceable
against DNR); Nondalton Tribal Council, 268 P.3d at 304 n.93 (stating that although
regional land use plan informs future DNR policy, it likely is not enforceable by public
against DNR).
31
AS 27.05.010; AS 38.05.005-.020, .035, .135-.177.
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to lease state lands for oil and gas exploration.32 But the legislature has delegated to the
Alaska Oil and Gas Conservation Commission, a different executive branch agency, the
authority to regulate oil and gas development for conservation purposes.33
2. Specific development policies
The legislature has enacted other statutory policies addressing fundamental
aspects of Alaska’s natural resources management. The legislature’s long-standing
economic development policy is found in AS 44.99.100(a):34
To further the goals of a sound economy, stable
employment, and a desirable quality of life, the legislature
declares that the state has a commitment to foster the
economy of Alaska through purposeful development of the
state’s abundant natural resources and productive capacity.
It is the legislature’s intent that this development
(1) offer long-term benefits and increased
employment to Alaskans by strengthening and diversifying
the state’s economic base and encouraging new activities;
(2) provide opportunities for increased personal
income or reduced living costs by creating activity in
economic sectors;
(3) have a positive effect on the revenue needs and
fiscal conditions of the state and local communities; [and]
(4) be undertaken after consideration of the social
and economic views of citizens impacted by the
32
AS 38.05.010, .131-.134, .180.
33
AS 31.05.005-.170; Alaskan Crude Corp. v. State, Dep’t of Nat. Res., Div.
of Oil & Gas, 261 P.3d 412, 414 n.3 (Alaska 2011) (describing commission as
independent quasi-judicial agency with authority over all state-regulated land to regulate
to prevent waste, ensure greater recovery, protect correlative rights and underground
water, and further public health and safety).
34
Ch. 63, § 1, SLA 1985.
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development, and only after adequate protection is assured
for Alaska’s environment.
The legislature has made a related finding that Alaskans have an interest in oil and gas
development to “maximize the economic . . . recovery of those resources” and that it is
in the State’s best interests to encourage oil and gas resource assessments allowing
flexibility in leasing and minimizing the adverse impact of exploration, development,
production, and transportation activity.35
The legislature’s more recent Arctic policy focuses on economic and natural
resource development above the Arctic Circle, along with related environmental
concerns, and is found in AS 44.99.105(a):36
It is the policy of the state, as it relates to the Arctic, to
. . . uphold the state’s commitment to economically vibrant
communities sustained by development activities consistent
with the state’s responsibility for a healthy environment,
including efforts to . . . ensure that Arctic residents and
communities benefit from economic and resource
development activities in the region; . . . sustain current, and
develop new, approaches for responding to a changing
climate, and adapt to the challenges of coastal erosion,
permafrost melt, and ocean acidification; . . . collaborate with
all levels of government, tribes, industry, and
nongovernmental organizations to achieve transparent and
inclusive Arctic decision-making, including efforts to . . .
value and strengthen the resilience of communities and
respect and integrate the culture, language, and knowledge of
Arctic peoples[;] . . . recognize Arctic indigenous peoples’
cultures and unique relationship to the environment,
including traditional reliance on a subsistence way of life for
food security, which provides a spiritual connection to the
35
AS 38.05.180(a) (concerning leasing state lands for oil and gas
development).
36
Ch. 10, § 2, SLA 2015.
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land and the sea; . . . [and] safeguard the fish, wildlife, and
environment of the Arctic for the benefit of residents of the
state; . . . .
The legislature’s stated (but uncodified) intent underlying the Arctic policy included
recognition that although climate change presents risks, continuing resource development
in an environmentally and socially responsible manner is essential to Alaska’s economy
and residents.37
The legislature’s long-standing mineral policy is found in AS 44.99.110:38
The legislature, acting under art. VIII, sec. 1 of the
Constitution of the State of Alaska, in an effort to further the
economic development of the state, to maintain a sound
economy and stable employment, and to encourage
responsible economic development within the state for the
benefit of present and future generations through the proper
conservation and development of the abundant mineral
resources . . . , including metals, industrial minerals, and coal,
declares as the mineral policy of the state that
(1) mineral exploration and development be
given fair and equitable consideration with
other resource uses in the multiple use
management of state land; . . . .
The legislature’s relatively recent energy policy is found in AS 44.99.115:39
The State of Alaska recognizes that the state’s
economic prosperity is dependent on . . . energy to supply the
state’s . . . needs. The state also recognizes that worldwide
supply and demand for fossil fuels and concerns about global
37
Id. § 1 (“[C]ontinuing development of the state’s natural resources in an
environmentally and socially responsible manner is essential to the development of the
state’s economy and to the well-being of the residents of the state . . . .”).
38
Ch. 138, § 1, SLA 1988.
39
Ch. 82, § 2, SLA 2010.
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climate change will affect the price of fossil fuels . . . . [I]t is
the policy of the state to . . . . encourage economic
development by . . . promoting the development of renewable
[energy sources] . . . . [and] promoting the development,
transport, and efficient use of nonrenewable and alternative
energy resources, including natural gas, coal, oil, gas
hydrates, heavy oil, and nuclear energy for use by Alaskans
and for export . . . .
The legislature’s stated (but uncodified) intent underlying the energy policy focused on
energy efficiency, calling for a 15% increase in energy efficiency between 2010 and
2020 and for 50% of electricity generation through renewable resources by 2025, while
emphasizing “remain[ing] a leader in petroleum and natural gas production and
becom[ing] a leader in renewable and alternative energy development.”40
3. Environmental protection and public trust policy
The legislature’s long-standing environmental protection and public trust
policy is found in AS 46.03.010:41
(a) It is the policy of the state to conserve, improve,
and protect its natural resources and environment and control
water, land, and air pollution, in order to enhance the health,
safety, and welfare of the people of the state and their overall
economic and social well-being.
(b) It is the policy of the state to . . . develop and
manage the basic resources of water, land, and air to the end
40
Id. § 1.
41
Ch. 120, § 3, SLA 1971. This policy is part of legislation creating the
Alaska Department of Environmental Conservation and granting authority to regulate
pollution. Id. § 1-3.
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that the state may fulfill its responsibility as trustee of the
environment for the present and future generations.[42]
C. The Judiciary’s Role Under Article VIII
Article VIII effectively limits the judiciary’s role in implementing Alaska’s
natural resources policies. In Sullivan v. REDOIL we quoted article VIII, sections 1 and
2, and then stated that it is the legislature’s “duty to determine the procedures necessary
for ensuring . . . the State’s resources are used ‘for the maximum benefit of its
people.’ ”43 We clarified that we do not “provide instruction on how the State should
determine what action would be for the maximum benefit of the Alaskan people.”44 We
said our role instead is ensuring that constitutional principles are followed, particularly
the mandate that “natural resources are to be made ‘available for maximum use
42
Article VIII of the Alaska Constitution also gives rise to some public trust
obligations. See Brooks v. Wright, 971 P.2d 1025, 1031 (Alaska 1999) (“Instead of
recognizing the creation of a public trust in [individual article VIII] clauses per se, we
have noted that ‘the common use clause was intended to engraft in our constitution
certain trust principles . . . .’ ” (quoting Owsichek v. State, Guide Licensing & Control
Bd., 763 P.2d 488, 496 (Alaska 1988))). Alaska’s constitutional public trust principles
have been discussed and applied in various contexts, including: subsistence hunting
regulations, McDowell v. State, 785 P.2d 1, 16-19 (Alaska 1989) (Rabinowitz, J.,
dissenting); hunting licensing, Owsichek, 763 P.2d at 494-97; fishing regulations,
Tongass Sport Fishing Ass’n v. State, 866 P.2d 1314, 1317-18 (Alaska 1994); riparian
land ownership, State, Dep’t of Nat. Res. v. Alaska Riverways, Inc., 232 P.3d 1203,
1211-12 (Alaska 2010); and wildlife management, Brooks, 971 P.2d at 1030-33. We
previously have contemplated the possibility that the State’s constitutional public trust
obligations may be implicated by harm to the atmosphere insofar as it is “inextricably
linked” to “recognized public trust resources such as water, shorelines, wildlife, and
fish.” Kanuk ex rel. Kanuk v. State, Dep’t of Nat. Res., 335 P.3d 1088, 1103 (Alaska
2014).
43
311 P.3d. 625, 634-35 (Alaska 2013) (quoting Alaska Const. art. VIII, § 2).
44
Id. at 635 (emphasis in original).
-16- 7583
consistent with the public interest.’ ”45 When an executive agency decision about natural
resources is challenged under article VIII, our role thus is limited to ensuring that the
agency has “taken a ‘hard look’ at all factors material and relevant to the public
interest.”46
As we explained in Sullivan:
The “hard look” doctrine for reviewing DNR’s decisions first
appeared in Hammond v. North Slope Borough, when we
referenced a United States Supreme Court statement that the
“court cannot substitute its judgment as to environmental
consequences, but should only ensure that the agency has
taken a ‘hard look.’ ” A year later, in Southeast Alaska
Conservation Council, Inc. v. State, we stated that our role is
to
ensure that the agency “has given reasoned
discretion to all the material facts and issues.”
The court exercises this aspect of its
supervisory role with particular vigilance if it
“becomes aware, especially from a combination
of danger signals, that the agency has not really
taken a ‘hard look’ at the salient problems and
has not genuinely engaged in reasoned decision
making.”
Since then, we have used the “hard look” standard when
reviewing agency decisions on resource uses.[47]
45
Id.
46
Id. (quoting Kachemak Bay Conservation Soc’y v. State, Dep’t of Nat. Res.,
6 P.3d 270, 294 (Alaska 2000)).
47
Id. at 635 n.46 (emphasis in original) (citations omitted) (first quoting
Hammond v. North Slope Borough, 645 P.2d 750, 759 (Alaska 1982); and then quoting
Se. Alaska Conservation Council v. State, 665 P.2d 544, 549 (Alaska 1983)).
-17- 7583
This is in stark contrast to how we review claims about individual constitutional rights
violations.48
48
See, e.g., Larson v. Dep’t of Corr., Bd. of Parole, 476 P.3d 293, 301 n.55
(Alaska 2020) (“ ‘The right to privacy is not absolute’ but is balanced against conflicting
rights and interests.” (quoting Jones v. Jennings, 788 P.2d 732, 738 (Alaska 1990)));
Planned Parenthood of the Great Nw. v. State, 375 P.3d 1122, 1153 (Alaska 2016)
(“Where a compelling state interest is shown, the right [to privacy] may be held to be
subordinate to express constitutional powers such as the authorization of the legislature
to promote and protect public health and provide for the general welfare.” (quoting Gray
v. State, 525 P.2d 524, 528 (Alaska 1974))).
For substantive due process violation claims, we have employed three
review levels — strict scrutiny, intermediate scrutiny, and rational basis review:
Under strict scrutiny, when a law substantially burdens a
fundamental right, the State must articulate a compelling state
interest that justifies infringing the right and must
demonstrate that no less restrictive means of advancing the
state interest exists. Under intermediate scrutiny, when state
action interferes with an individual’s liberty interest that is
not characterized as fundamental, the State must show a
legitimate state interest and a “close and substantial
relationship” between that interest and the chosen means of
achieving it. Under rational basis review, the party claiming
a substantive due process violation has the burden of showing
that there is no rational basis for the challenged legislation.
“This burden is a heavy one, for if any conceivable legitimate
public policy for the enactment is apparent on its face or is
offered by those defending the enactment, the opponents of
the measure must disprove the factual basis for such a
justification.”
Doe v. Dep’t of Pub. Safety, 444 P.3d 116, 125-26 (Alaska 2019) (emphasis in original)
(first quoting Sampson v. State, 31 P.3d 88, 91 (Alaska 2001); and then quoting
Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447,
452 (Alaska 1974)).
(continued...)
-18- 7583
III. FACTS AND PROCEEDINGS IN THIS CASE
In August 2017 over a dozen young Alaskans (plaintiffs49) petitioned the
Alaska Department of Environmental Conservation to adopt an agency rule ensuring
carbon dioxide50 and greenhouse gas emissions51 (collectively carbon emissions) have
48
(...continued)
When evaluating equal protection claims, we apply a “flexible ‘sliding
scale’ test” involving a three-step analysis:
First, we determine what weight should be afforded the
constitutional interest impaired by the challenged enactment.
The nature of the interest is the most important variable in
fixing the appropriate level of review. Second, we examine
the purposes served by a challenged statute. Depending on
the level of review determined, the state may be required to
show only that its objectives were legitimate, at the low end
of the continuum, or, at the high end of the scale, that the
legislation was motivated by a compelling state interest.
Third, an evaluation of the state’s interest in the particular
means employed to further its goals mut be undertaken.
Jones v. State, Dep’t of Revenue, 441 P.3d 966, 978 (Alaska 2019) (quoting Ross v.
State, Dep’t of Revenue, 292 P.3d 906, 909-10 (Alaska 2012)).
49
Plaintiffs — some of whom are expressly stated to be Alaska Natives —
and their ages when suit was filed are: Summer Sagoonick of Unalakleet, 17; Esau
Sinnok of Shishmaref, 20; Linnea L. of Gustavus, 14; Tasha Elizarde of Juneau, 19;
Cade Terada of Dutch Harbor, 19; Kaytlyn Kelly of Palmer, 18; Brian Conwell of Dutch
Harbor, 19; Jode Sparks of Sterling, 18; Margaret “Seb” Kurland of Juneau, 18;
Lexine D. of Fort Yukon, 9; Elizabeth Bessenyey of Anchorage, 18; Vanessa Duhrsen
of Anchorage, 18; Ananda Rose Ahtahkee L. of Anchorage, 8; Griffin Plush of Seward,
21; and Cecily and Lila S. of Homer, 8 and 6, respectively.
50
See Gökçe Günel, What Is Carbon Dioxide? When Is Carbon Dioxide?, 39
POL.&LEGAL ANTHROPOLOGY REV. 33 (2016) (“The Oxford English Dictionary defines
carbon dioxide as ‘a colorless, odorless gas produced by the burning of organic
compounds and fossil fuels, by the processes of respiration and decomposition, and by
(continued...)
-19- 7583
a “reduction trajectory that is based on best climate science.”52 The proposed rule called
for the Department to “regulate stationary and mobile sources of [carbon] emissions and
the extraction of fossil fuels” in Alaska to reduce carbon emissions to “at least 85%
below 1990 levels by 2050” — an estimated global reduction necessary to slow climate
change and lower global atmospheric carbon emission levels to a specified level by 2100.
The proposed rule also required the Department to publish an annual accounting of the
State’s progress in addressing carbon emissions and to “adopt a Climate Action Plan to
meet the reduction requirements specified.”
The Department responded in September, denying the petition but assuring
plaintiffs that addressing climate change was a State priority. The Department explained
that the proposed rule — by “establish[ing] broad policy goals” rather than directly
affecting the public or regulating the agency’s interactions with the public — did not
meet the statutory definition of “regulation”;53 likely exceeded the Department’s rule­
50
(...continued)
volcanic activity, and absorbed by plants during photosynthesis.’ . . . . In smaller type,
the OED concludes[:] ‘The increasing quantity of atmospheric carbon dioxide produced
by the burning of fossil fuels is widely believed to augment the greenhouse effect and
lead to global warming.’ ” (quoting Carbon Dioxide, OXFORD ENGLISH DICTIONARY (3d
ed. 2008))).
51
Plaintiffs described greenhouse gas emissions in their rule-making petition
as “any gas that has contributed to anthropogenic global warming.” See also id.52
See AS 44.62.220 (“Unless the right to petition for adoption of a regulation
is restricted by statute to a designated group or the procedure for the petition is
prescribed by statute, an interested person may petition an agency for the adoption or
repeal of a regulation . . . .”).
53
See AS 44.62.640(a)(3) (defining “regulation” as “every rule, regulation,
order, or standard of general application or the amendment, supplement, or revision of
a rule, regulation, order, or standard adopted by a state agency to implement, interpret,
(continued...)
-20- 7583
making authority granted by statute;54 and was “inconsistent with practical and fiscal
constraints” on the Department and the State. The Department advised plaintiffs that
resource development and environmental policy questions are “best addressed in
partnership with the Legislature” and encouraged them “to continue to engage” with the
executive and legislative branches “in seeking creative solutions to addressing climate
change in Alaska.”
A month later plaintiffs filed a superior court lawsuit against the State and
various agencies and officers. Plaintiffs challenged the Department’s denial of the rule-
making petition as a violation of their constitutional rights and made additional
constitutionally based claims for declaratory and injunctive relief regarding what they
described as the State’s “Climate and Energy Policy.” The State later moved to dismiss
the lawsuit.55 In April 2018 the superior court heard arguments on the dismissal motion.
In August plaintiffs amended their complaint, adding specificity to their
allegations about Alaska climate change and expressly referring to the legislature’s
53
(...continued)
or make specific the law enforced or administered by it”). “ ‘[R]egulation’ includes . . .
‘guides to enforcement,’ ‘interpretative bulletins,’ ‘interpretations,’ and the like, that
have the effect of rules, orders, regulations, or standards of general application,” id., but
“not every agency action or decision constitutes a regulation,” Chevron, U.S.A., Inc. v.
State, Dep’t of Revenue, 387 P.3d 25, 35-36 (Alaska 2016). An agency action is a
regulation if it meets two criteria: First, the action must “implement[], interpret[], or
make[] specific the law enforced or administered by the agency”; second, the action must
“affect[] the public” or be “used by the agency in dealing with the public.” Id. at 36
(quoting State, Dep’t of Nat. Res. v. Nondalton Tribal Council, 268 P.3d 293, 300-01
(Alaska 2012)).
54
Cf. AS 46.03.020(10)(A) (authorizing Department to promulgate
regulations regarding “control, prevention, and abatement of air . . . pollution”).
55
See Alaska R. Civ. P. 12(b)(6) (allowing dismissal for failure to state claim
upon which relief can be granted).
-21- 7583
energy policy in AS 44.99.115.56 The amended complaint detailed each plaintiff’s
alleged harms and sought to “enforce sections 1, 7, and 21 of Article I[57] . . . and Article
VIII[58] of the Alaska Constitution.”
The first plaintiff named in the amended complaint, for example, alleged
that climate change is having a devastating effect on his home, subsistence lifestyle, and
cultural traditions. This is manifested, he alleged, in erosion of inhabited seacoast due
to loss of sea ice that “has historically been a buffer against storms, storm surges, and
flooding”; “accelerating thaw of the permafrost underlying [his home] community,”
causing both erosion and food-cellar flooding; damage to traditional hunting practices
56
See supra § II.B.
57
Providing, in relevant part:
§ 1. Inherent Rights. This constitution is dedicated to the
principles that all persons have a natural right to life, liberty,
the pursuit of happiness, and the enjoyment of the rewards of
their own industry; that all persons are equal and entitled to
equal rights, opportunities, and protection under the law; and
that all persons have corresponding obligations to the people
and to the State.
....
§ 7. Due Process. No person shall be deprived of life,
liberty, or property, without due process of law. The right of
all persons to fair and just treatment in the course of
legislative and executive investigations shall not be infringed.
....
§ 21. Construction. The enumeration of rights in this
constitution shall not impair or deny others retained by the
people.
58
See supra § II.A.
-22- 7583
and loss of game due to thinning sea ice; inadequate snow cover for necessary winter
travel; harm to prey animals such as walrus, seal, and caribou, both directly and through
damage to their food supply; increased wildfires damaging the air quality necessary for
outdoor recreation; and feelings of “anxiety, stress and loss.” Other plaintiffs alleged
specific harm to their recreational opportunities, diet, physical and mental health, and
traditional cultural activities.
Plaintiffs also made specific factual allegations about State actors’ roles in
“causing, contributing to, and exacerbating climate change,” primarily by permitting and
promoting fossil fuel extraction and other activities contributing to dangerous levels of
atmospheric carbon emissions. Plaintiffs set out factual allegations underlying their
assertions that the State has long been aware of climate change’s harmful effects and of
the role the State’s policies play in exacerbating the problem. They also detailed carbon
emissions produced in Alaska over several relevant time spans and identified the sources
of these emissions.
Plaintiffs described “overwhelming scientific consensus that human-caused
climate change is occurring”; sources of human-caused increase in carbon emissions;
impact on sea levels, ocean acidification, human disease, and mental health disorders;
and extreme weather events such as floods and hurricanes. Plaintiffs focused on climate-
change impacts in Alaska, detailing increased temperatures, effects on Arctic sea ice and
effects on marine mammals and coastal communities, glacial melt and its “profound
impacts on freshwater and marine aquatic resources,” and permafrost thawing. They
described wildfires, spruce beetle infestations, ocean acidification, and threats to salmon,
other fish species, and a variety of land-based plants and mammals. They detailed these
changes’ effects on Alaskans, amplifying individual plaintiffs’ allegations about
damaged communities, subsistence hunting and fishing, traditional and cultural activities,
and health. Plaintiffs also alleged “[e]conomic and financial losses from climate change
-23- 7583
[related to] healthcare, wildlife and fisheries management, disaster relief, infrastructure
construction and repair, and energy development, among others.”
Plaintiffs sought a declaratory judgment stating that: (1) they have a
“fundamental and inalienable constitutional right[] to . . . a stable climate system that
sustains human life and liberty”; (2) the State has a duty under the public trust doctrine
to protect Alaska’s natural resources; (3) the State has exacerbated climate change in
violation of plaintiffs’ individual constitutional rights; (4) the State has put plaintiffs in
danger by failing to reduce Alaska’s carbon emissions; (5) the State has discriminated
against plaintiffs as members of a protected age-based class who will suffer from climate
change effects for a longer period of time than will older people; (6) the State has
violated its duty to protect Alaska’s natural resources; and (7) the Department’s denial
of the rule-making petition violated plaintiffs’ individual constitutional rights. Plaintiffs
also requested injunctive relief requiring the State to: (1) stop implementing its energy
policy in violation of their rights; (2) “prepare a complete and accurate accounting of
Alaska’s [carbon] emissions,” including “in-boundary and extraction-based emissions”
and “emissions attributable to fossil fuels extracted in Alaska and transported and
combusted out of state”; and (3) develop and submit to the court “an enforceable state
climate recovery plan . . . consistent with global emissions reductions rates necessary to
stabilize the climate system.”
After plaintiffs filed their amended complaint, the parties notified the
superior court that they had agreed no further briefing or arguments were necessary for
the court to rule on the State’s pending dismissal motion. In October the court granted
the State’s motion, dismissing plaintiffs’ injunctive relief claims because they implicated
non-justiciable political questions, dismissing plaintiffs’ requests for declaratory relief
on prudential grounds, and concluding that the Department’s denial of plaintiffs’ rule-
making petition complied with statutory requirements and was not arbitrary.
-24- 7583
Plaintiffs appeal.
IV. DISCUSSION
A. Dismissal Of Plaintiffs’ Declaratory Judgment And Injunctive Relief
Claims
1. Standard of review
“We review a motion to dismiss de novo, construing the complaint liberally
and accepting as true all factual allegations,” and we generally “do not consider materials
outside the complaint and its attachments.”59 “[M]otions to dismiss are disfavored,”60
and it must be “beyond doubt that the plaintiff can prove no set of facts that would entitle
[the plaintiff] to relief” before dismissal will be granted.61 “Even if the relief demanded
is unavailable, the claim should not be dismissed as long as some relief might be
available on the basis of the alleged facts.”62 “[W]e review de novo the question of
whether a case should be dismissed on prudential grounds.”63
59
Pedersen v. Blythe, 292 P.3d 182, 184 (Alaska 2012). Plaintiffs’ 102-page
amended complaint is replete with factual allegations, ranging from the very local to the
global and stating very specific harms claimed by individual plaintiffs. For purposes of
the discussion that follows, we must presume as true and provable at trial that the State
knows its actions have exacerbated and will continue to exacerbate climate change,
causing serious harms to the individual plaintiffs and contributing to statewide,
nationwide, and global damage that is accelerating toward climate catastrophe. Plaintiffs
assert that the superior court erred by failing to consider their factual allegations in this
light, but because we independently review plaintiffs’ complaint in our consideration of
its dismissal, we do not address that assertion of error.
60
Adkins v. Stansel, 204 P.3d 1031, 1033 (Alaska 2009).
61
Catholic Bishop of N. Alaska v. Does 1-6, 141 P.3d 719, 722 (Alaska 2006).
62
Adkins, 204 P.3d at 1033.
63
Kanuk ex rel. Kanuk v. State, Dep’t of Nat. Res., 335 P.3d 1088, 1092
(continued...)
-25- 7583
2. Kanuk ex rel. Kanuk v. State, Department of Natural Resources
Plaintiffs’ factual allegations and legal claims are similar to those addressed
in our 2014 Kanuk ex rel. Kanuk v. State, Department of Natural Resources decision.64
In that case, like this one, the plaintiffs sought a court mandate for substantive State
action in response to potentially catastrophic climate change. Because we affirmed the
superior court’s denial of any relief in Kanuk, many arguments in this appeal focus on
factual and procedural comparisons of the two cases.
The Kanuk plaintiffs were a diverse group of young Alaskans who claimed
the State had violated duties under the Alaska Constitution and the public trust doctrine
by failing to take steps to protect the atmosphere and curb carbon emissions.65 The
superior court dismissed their complaint, holding that their requests for declaratory and
injunctive relief were non-justiciable political questions; the Kanuk plaintiffs appealed.66
We affirmed the dismissal, but for slightly different reasons.
We first held that the Kanuk plaintiffs had standing67 and that their claims
were not barred by sovereign immunity.68 We held that three claims — asking that the
63
(...continued)
(Alaska 2014).
64
Id. at 1090-91.
65
Id.
66
Id. at 1091.
67
Id. at 1092-95 (concluding plaintiffs had interest-injury standing because
“the complaint shows direct injury to a range of recognizable interests[, e]specially in
light of our broad interpretation of standing and our policy of promoting citizen access
to the courts”).
68
Id. at 1095-96 (rejecting sovereign immunity defense because “[t]he duty
(continued...)
-26- 7583
court order the State to use the best available science, lower carbon emissions, and
prepare a carbon emission accounting — were properly dismissed as non-justiciable
because they involved policy questions within other government branches’ particular
competence.69 We disagreed with the superior court’s decision that the remaining claims
also presented non-justiciable political questions, holding that declaratory judgment
claims on the nature of the public trust doctrine were justiciable because whether the
State has breached a legal duty is a question we can answer, assuming we first can
identify the duty at issue.70 But despite the claims’ justiciability, we held dismissal on
prudential grounds was proper because the declaratory relief sought would not “clarify
and settle [the] legal relations” between the parties and thus ultimately would “fail to
serve the principal prudential goals of declaratory relief.”71
3. Justiciability and prudential considerations in this matter
We apply Kanuk’s analytical framework to determine whether plaintiffs’
claims are justiciable. This requires answering two questions:
(1) [W]hether deciding the claim would require us to answer
questions that are better directed to the legislative or
executive branches of government (the “political question”
doctrine), and (2) whether there are other reasons — such as
ripeness, mootness, or standing — that persuade us that,
68
(...continued)
the State is alleged to have breached . . . is a fiduciary duty based on article VIII of the
Constitution and the public trust doctrine, not tort law”).
69
Id. at 1097-99.
70
Id. at 1100.
71
Id. at 1101-02 (quoting Lowell v. Hayes, 117 P.3d 745, 755 (Alaska 2005)).
-27- 7583
though the case is one we are institutionally capable of
deciding, prudence counsels that we not do so.[72]
As we explain below, plaintiffs’ injunctive relief claims present non-
justiciable political questions. And although plaintiffs’ declaratory relief claims do not
necessarily present non-justiciable political questions, the superior court properly
dismissed them on prudential grounds after correctly determining that it could not grant
injunctive relief.
a. Plaintiffs’ injunctive relief claims and our non-justiciable
political questions analysis
We previously have explained that the separation of powers doctrine
prohibits Alaska courts from resolving purely political questions.73 But “merely
characterizing a case as political in nature will [not] render it immune from judicial
scrutiny.”74 There are no “exact boundaries between the political and the justiciable,”
but we identify political questions “by applying the test announced by the United States
Supreme Court in Baker v. Carr.”75 Baker lists six factors, at least one of which is
“[p]rominent on the surface” of any case involving a political question:
[1] a textually demonstrable constitutional commitment of the
issue to a coordinate political department; or [2] a lack of
judicially discoverable and manageable standards for
resolving it; or [3] the impossibility of deciding without an
72
Id. at 1096 (footnote omitted).
73
Id.; see also Abood v. Gorsuch, 703 P.2d 1158, 1160 (Alaska 1985) (“There
are certain questions involving coordinate branches of the government, sometimes
unhelpfully called political questions, that the judiciary will decline to adjudicate.”);
Malone v. Meekins, 650 P.2d 351, 356 (Alaska 1982) (citing Baker v. Carr, 369 U.S.
186, 210 (1962)).
74
Malone, 650 P.2d at 356.
75
Kanuk, 335 P.3d at 1096 (citing 369 U.S. at 217).
-28- 7583
initial policy determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court’s undertaking
independent resolution without expressing lack of the respect
due coordinate branches of government; or [5] an unusual
need for unquestioning adherence to a political decision
already made; or [6] the potentiality of embarrassment from
multifarious pronouncements by various departments on one
question.[76]
“Unless one of these formulations is inextricable from the case . . . there should be no
dismissal for non-justiciability on the ground of a political question’s presence.”77
Plaintiffs sought an injunction requiring the State to: (1) stop implementing
its statutory energy policy in violation of their asserted constitutional rights; (2) “prepare
a complete and accurate accounting of Alaska’s [carbon] emissions”; and (3) work with
the Department to develop and submit to the superior court “an enforceable [S]tate
climate recovery plan . . . consistent with global emissions reductions rates necessary to
stabilize the climate system.”
These closely resemble the requests in Kanuk. The Kanuk plaintiffs sought
declaratory and injunctive relief, requesting that the court: (1) “declare that the State[]”
has a public trust “obligation to protect the atmosphere” by implementing the “best
available science”; (2) “order the State ‘to prepare a full and accurate accounting of
Alaska’s current carbon dioxide emissions’ ”; and (3) “order the State to reduce
emissions ‘by at least 6% [annually]’ ” until 2050.78 We held that the injunctive relief
claims presented non-justiciable political questions “under several of the Baker
76
369 U.S. at 217.
77
Id.78
Kanuk, 335 P.3d at 1097.
-29- 7583
factors.”79 We said the claims most obviously implicated the third factor by requiring
the court to make an “initial policy determination.”80 We explained that “[t]he limited
institutional role of the judiciary supports a conclusion that the science- and policy-based
inquiry [at issue in Kanuk was] better reserved for executive-branch agencies or the
legislature.”81
The superior court in this case concluded that plaintiffs’ injunctive relief
claims were “materially indistinguishable” from those in Kanuk and denied relief.
Plaintiffs contend the court made two errors. They first argue that the court (and our
Kanuk decision) should not have focused on the requested relief to determine whether
the “claims [themselves] present a political question.” (Emphasis in original.) And they
argue that, unlike the Kanuk plaintiffs, they point to an initial State legislative policy
determination and affirmative State actions allegedly violating their constitutional rights.
Plaintiffs contend that these differences render their claims justiciable. We consider and
reject these arguments in turn.
i. The superior court did not err by considering the
injunctive relief requested by the plaintiffs.
Plaintiffs argue that the superior court “obfuscate[d] the proper [political
question] inquiry” by focusing on the requested relief instead of the claims presented.
But we took the very same approach in Kanuk,82 and a review of our case law reveals
79
Id. at 1097-99.
80
Id. at 1097.
81
Id. at 1099.
82
See id. at 1097-98.
-30- 7583
that the remedy is a relevant consideration in the political question analysis.83 Although
plaintiffs call this approach “an anomaly,” several federal circuit courts of appeal
decisions demonstrate that relief is routinely considered during the political question
analysis.84 Categorizing past State actions as a single energy policy “implemented
83
State, Dep’t of Health &Soc. Servs. v. Planned Parenthood of Alaska, Inc.,
28 P.3d 904, 913-14 (Alaska 2001) (rejecting argument that political question doctrine
barred judicial consideration because striking regulation, which would require legislature
to alter appropriations, is precisely type of remedy judiciary is competent to give); Abood
v. League of Women Voters, 743 P.2d 333, 336 (Alaska 1987) (holding claim alleging
violation of rules of legislative procedure was non-justiciable because Constitution
permits legislature to make its own procedural rules and noting “to hold that these claims
are justiciable places the judiciary in direct conflict with the legislature’s constitutionally
authorized rulemaking prerogative”); Malone v. Meekins, 650 P.2d 351, 356 (Alaska
1982) (concluding that declaring legislative house speaker election invalid would be
“improper” even if previous speaker’s removal was unconstitutional and illegal as argued
on appeal).
84
Schroder v. Bush, 263 F.3d 1169, 1174-76 (10th Cir. 2001) (“[I]t is clear
to us that Appellants’ request that courts maintain market conditions, oversee trade
agreements, and control currency . . . would require courts to make ‘initial policy
determinations’ in an area devoid of ‘judicially discoverable and manageable
standards’ . . . .”); Brown v. Hansen, 973 F.2d 1118, 1121 (3d Cir. 1992) (“[The political
question doctrine] precludes courts from granting relief that would violate the separation
of powers mandated by the United States Constitution.”); Koohi v. United States, 976
F.2d 1328, 1332 (9th Cir. 1992) (noting injunctive relief claims “may require the courts
to engage in the type of operational decision-making beyond their competence . . . [and]
are far more likely to implicate political questions”); Gordon v. Texas, 153 F.3d 190,
193-95 (5th Cir. 1998) (analyzing claims’ justiciability based on relief sought); see also
Republic of Marshall Islands v. United States, 79 F. Supp. 3d 1068, 1074 (N.D. Cal.
2015), aff’d sub nom. Republic of Marsh. Islands v. United States, 865 F.3d 1187 (9th
Cir. 2017) (dismissing case as political question because court “lack[ed] the standards
necessary to fashion the type of injunctive relief” sought); Barasich v. Columbia Gulf
Transmission Co., 467 F. Supp. 2d 676, 685 (E.D. La. 2006) (“[T]he nature of the relief
sought by the plaintiffs in this action supports a determination that this suit does not fall
under the second prong of the political question test.”); Ibrahim v. Titan Corp., 391 F.
(continued...)
-31- 7583
through [its] historical and ongoing affirmative aggregate and systemic actions” rather
than contemporaneously challenging proposed agency action is an unusual argument.
To the extent our focus on the requested relief could be considered unusual, it is in
keeping with the nature of plaintiffs’ argument.
Contrary to plaintiffs’ argument, Baker does not foreclose our approach.
After explaining that the claims in Baker were justiciable, the United States Supreme
Court cursorily wrote: “[I]t is improper now to consider what remedy would be most
appropriate if appellants prevail at the trial.”85 But the Court was not excluding from the
political question analysis all consideration of remedies; it was acknowledging that an
appellate court generally should not speculate about hypothetical remedies after
determining that a trial court improperly dismissed claims as non-justiciable. That is not
the posture of this case. The superior court thus did not err by considering plaintiffs’
requested relief as part of its political question analysis.
ii. Plaintiffs’ injunctive relief claims present non-
justiciable political questions.
“[T]he relationship between the judiciary and the coordinate branches of
the . . . Government . . . gives rise to the ‘political question.’ ”86 The political question
doctrine maintains the separation of powers by “exclud[ing] from judicial review those
84
(...continued)
Supp. 2d 10, 15 (D.D.C. 2005) (“An action for damages arising from the acts of private
contractors and not seeking injunctive relief does not involve [a political
question] . . . .”).
85
369 U.S. 186, 198 (1962).
86
Malone, 650 P.2d at 356 (quoting Baker, 369 U.S. at 210).
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controversies which revolve around policy choices and value determinations
constitutionally committed for resolution to” the political branches of government.87
We conclude that plaintiffs’ injunctive relief claims present non-justiciable
political questions, as did the claims in Kanuk.88 We do not reach this conclusion lightly;
Alaska courts have a duty to decide cases properly before them.89 But respect for, not
dereliction of, our constitutional duty warrants this conclusion. The Constitution’s text,
the separation of powers doctrine, and Kanuk’s sound precedent prevent us making the
legislative policy judgments necessary to grant the requested injunctive relief.
As explained earlier, article VIII enshrines an overarching constitutional
policy of making natural public resources available for maximum use consistent with the
public interest.90 It explicitly directs the legislature (and not the judiciary) to manage and
develop the State’s natural resources for the maximum common use and benefit of all
Alaskans.91 We have long recognized that, in light of this constitutional delegation of
authority, our role in reviewing legislative decisions about management and development
87
Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986).
88
See Kanuk ex rel. Kanuk v. State, Dep’t of Nat. Res., 335 P.3d 1088, 1097­
99 (Alaska 2014).
89
See State, Dep’t of Health & Soc. Servs. v. Planned Parenthood of Alaska,
Inc., 28 P.3d 904, 913 (Alaska 2001) (“Under Alaska’s constitutional structure of
government, ‘the judicial branch . . . has the constitutionally mandated duty to ensure
compliance with the provisions of the Alaska Constitution, including compliance by the
legislature.’ ” (alteration in original) (quoting Malone, 650 P.2d at 356)).
90
Alaska Const. art VIII, § 1; see supra § II.A.
91
Alaska Const. art VIII, § 2; see supra § II.A; see also Sullivan v. REDOIL,
311 P.3d 625, 635 (Alaska 2013) (“The legislature is tasked with the duty to determine
the procedures necessary for ensuring the State’s resources are used ‘for the maximum
benefit of its people.’ ” (quoting Alaska Const. art VIII, § 2)).
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of natural resources is necessarily limited. Our “hard look” approach to cases involving
the proper balance between development and environmental concerns derived from a
recognition that we cannot, and should not, substitute our judgment for that of the
political branches.92
We recognize that article VIII is not a complete delegation of power to the
legislature;93 we have a duty to ensure compliance with constitutional principles,94 and
we have a duty to redress constitutional rights violations.95 But the nature of plaintiffs’
92
See Sullivan, 311 P.3d at 635 (“We have said that to ensure these
[constitutional] principles are followed, it is necessary for the State to take a ‘hard look’
at all factors material and relevant to the public interest . . . .”); see also Se. Alaska
Conservation Council, Inc. v. State, 665 P.2d 544, 549 (Alaska 1983); Hammond v.
North Slope Borough, 645 P.2d 750, 759 (Alaska 1982).
93
See Brooks v. Wright, 971 P.2d 1025, 1033 (Alaska 1999) (“[T]he
legislature does not have exclusive law-making powers over natural resource issues
merely because of the state’s management role over wildlife set forth in Article VIII of
the Alaska Constitution . . . .” (emphasis in original)); cf. Malone, 650 P.2d at 356, 359
(holding that legislature’s internal rules of procedure were textually committed by Alaska
Constitution and that “except in extraordinary circumstances, as where the rights of
persons who are not members of the legislature are involved, it is not the function of the
judiciary to require that the legislature follow its own rules”).
94
See, e.g., McDowell v. State, 785 P.2d 1, 8-9 (Alaska 1989) (striking down
statutory provision establishing rural residency requirements for subsistence hunting and
fishing as violating article VIII equal use provisions); Owsichek v. State, Guide Licensing
&Control Bd., 763 P.2d 488, 496 (Alaska 1988) (holding “minimum requirement of [the
public trust] duty [constitutionalized in the common use clause] is a prohibition against
any monopolistic grants or special privileges,” and noting “we are compelled to strike
down any statutes or regulations that violate this principle”).
95
Valley Hosp. Ass’n v. Mat-Su Coalition for Choice, 948 P.2d 963, 971-72
(Alaska 1997) (“[W]e cannot defer to the legislature when infringement of a
constitutional right results from legislative action.”).
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as-applied claims upsets our usual approach to reviewing State agency action.96
Plaintiffs asserted that the State has contributed to climate change and resulting
violations of their individual constitutional rights “by and through [the statutory energy
policy], implemented through [its] historical and ongoing affirmative aggregate and
systemic actions.” Plaintiffs’ requested remedy thus involves more than striking down
a specific statute or regulation or reversing an agency’s specific decision. Plaintiffs ask
the judicial branch to establish constitutional common law controlling State policy about
the appropriate balancing of resource development against environmental protection.
And plaintiffs ask us to jettison the constitutional mandate that the legislature manage
natural resources in the public interest and for the maximum benefit to Alaskans
collectively.
Plaintiffs essentially seek to impose ad hoc judicial natural resources
management based on case-by-case adjudications of individual fundamental rights.
Judges would be deciding the extent of individual Alaskans’ constitutional right to some
level of development or conservation under article VIII based on those individual
Alaskans’ arguments about what would provide them “a natural right to life, liberty, the
pursuit of happiness, and the enjoyment of the rewards of their own industry” under
article I. But the Constitution expressly delegated to the legislature the duty to balance
96
A litigant may challenge the constitutionality of a statute or government
policy in two different ways. A facial challenge alleges that a statute or policy is
unconstitutional “as enacted”; we will uphold a facially challenged statute or policy
“even if it might occasionally create constitutional problems in its application, as long
as it ‘has a plainly legitimate sweep.’ ” State v. Planned Parenthood of the Great Nw.,
436 P.3d 984, 1000 (Alaska 2019) (quoting Planned Parenthood of the Great Nw. v.
State, 375 P.3d 1122, 1133 (Alaska 2016)). An as-applied challenge alleges that “under
the facts of the case[,] application of the statute [or policy] is unconstitutional. Under
other facts, however, the same statute [or policy] may be applied without violating the
constitution.” State v. ACLU of Alaska, 204 P.3d 364, 372 (Alaska 2009).
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competing priorities for the collective benefit of all Alaskans. It thus is impossible to
grant plaintiffs’ requested injunctive relief without also infringing on an area
constitutionally committed to the legislature, abandoning our “hard look” standard of
review for natural resource decisions, and disrespecting our coordinate branches of
government by supplanting their policy judgments with our own normative musings
about the proper balance of development, management, conservation, and environmental
protection.97
Because we cannot grant the requested relief using factual and legal
analyses alone, plaintiffs’ claims are not meaningfully distinguishable from the claims
brought in Kanuk.98 We rejected the Kanuk plaintiffs’ attempt to obtain an injunction
requiring the State to account for and reduce its emissions based on the “best available
science” because it would have involved “underlying policy choices [that were] not ours
97
Baker v. Carr, 369 U.S. 186, 217 (1962) (noting political question exists
if there is “a textually demonstrable constitutional commitment of the issue to a
coordinate political department, . . . a lack of judicially discoverable and manageable
standards for resolving it; . . . the impossibility of deciding without an initial policy
determination of a kind clearly for nonjudicial discretion; [or] the impossibility of a
court’s undertaking independent resolution without expressing lack of the respect due
coordinate branches of government”); see also Alperin v. Vatican Bank, 410 F.3d 532,
544 (9th Cir. 2005) (noting Baker factors often “collaps[e] into one another”).
98
Kanuk ex rel. Kanuk v. State, Dep’t of Nat. Res., 335 P.3d 1088, 1097
(Alaska 2014) (noting political question doctrine is implicated “when, to resolve a
dispute the court must make a policy judgment of a legislative nature, rather than
resolving the dispute through legal and factual analysis” (quoting Equal Emp’t
Opportunity Comm’n v. Peabody W. Coal Co., 400 F.3d 774, 784 (9th Cir. 2005))); see
also Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986) (noting
“courts are fundamentally underequipped to formulate [large scale] policies or develop
standards for matters not legal in nature” (quoting United States ex rel. Joseph v.
Cannon, 642 F.2d 1373, 1379 (D.C. Cir. 1981))).
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to make in the first instance.”99 The underlying policy choices were legislative because
they: (1) required an “informed assessment of competing interests”;100 (2) largely
depended on the application of “scientific, economic, and technological resources”;101
and (3) would be best made with the input of various stakeholders outside of an
inflexible trial court record.102 We stated:
[Although] the science of anthropogenic climate change is
compelling, government reaction to the problem implicates
realms of public policy besides the objectively scientific. The
legislature — or an executive agency entrusted with rule-
making authority in this area — may decide that employment,
resource development, power generation, health, culture, or
other economic and social interests militate against
implementing what the plaintiffs term the “best available
science” in order to combat climate change.[103]
Kanuk’s core holding on this issue is that the “science- and policy-based inquiry” and
policy choices necessary to implement resource development are “better reserved” for
the political branches.104 That holding applies to this case.
Granting injunctive relief would require making the very same legislative-
like policy choices that in Kanuk we said courts could not make. Plaintiffs primarily
99
Kanuk, 335 P.3d at 1098.
100
Id. (quoting Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 427
(2011)).
101
Id. at 1099 (quoting Am. Elec. Power Co., 564 U.S. at 428).
102
See id. (noting that courts may not commission scientific studies, convene
groups of experts, seek public input under notice-and-comment procedures, or look
beyond record).
103
Id. at 1098-99 (footnote omitted).
104
Id. at 1099.
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seek an injunction mandating that the State develop a “climate recovery plan” that is
“consistent with global emissions reduction rates necessary to stabilize the climate
system.” Plaintiffs further seek to have the court “[r]etain continuing jurisdiction [to]
enforc[e]” that order. Granting an injunction necessarily would impose a court-made
policy judgment on the other political branches that no competing interest is more
important than implementing the best available science, the plaintiffs’ presumptive
source of the reduction rate.105 But this is beyond the “limited institutional role of the
judiciary” because it requires a legislative policy judgment.106
Plaintiffs pleaded their claims differently than the Kanuk plaintiffs, but that
does not change our analysis. We said in Kanuk that the “underlying policy choices”
were not the courts’ to make “in the first instance,” perhaps unintentionally suggesting
that future plaintiffs could resolve the Kanuk complaint’s shortcomings merely by
identifying some relevant initial legislative policy choice.107 Plaintiffs identify the State’s
codified energy policy as the initial policy determination, although, as we noted above,
plaintiffs really are challenging how the policy is being applied rather than the policy
itself. But plaintiffs interpret the political question doctrine too rigidly and
formalistically. The barrier in Kanuk was not merely absence of an initial policy
judgment; the Kanuk plaintiffs asked the courts to make and enforce a particular
legislative-like policy judgment and impose it on the other political branches. They
sought to have courts impose the policy judgment that, when undertaking resource
105
See id. at 1098-99 (explaining judgment would be legislative because it
would require informed assessment of competing interests, depend on application of
scientific, economic, and technological resources, and best be made with access to
information beyond limited trial court record).
106
Id.
107
Id. at 1098.
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development under Alaska’s constitutional directive and various statutory policy
pronouncements, the State must prioritize at all costs the best available science or the
least climate-damaging activities. This proposed policy judgment would require
continuing jurisdiction to ensure that the political branches implement what courts
conclude is the appropriate balancing of interests in developing Alaska’s “resources . . .
for maximum use consistent with the public interest.”108 Asking courts to impose and
enforce such a policy judgment presents a non-justiciable political question.
Plaintiffs point to Plata v. Brown, a United States Supreme Court decision
upholding an injunction requiring California to reduce its prison population to 137.5%
of building design capacity to cure Eighth Amendment violations,109 and they suggest
that we likewise should “set the constitutional floor necessary for preservation of
[p]laintiffs’ rights and leave to [the State] the specifics of developing and implementing
a compliance plan.” But Plata’s remedy was granted in accordance with the Prison
Litigation Reform Act, which authorized federal courts to require the release of prisoners
as a remedy to cure federal rights violations under certain conditions.110 Any separation
of powers concerns therefore were less salient because Congress had authorized the
requested remedy.111 By contrast, the remedy plaintiffs seek in this case would require
courts to make decisions that article VIII has committed to the legislature, and separation
of powers considerations therefore are clearly implicated.112
108
Alaska Const. art. VIII, §1.
109
563 U.S. 493, 509-10, 533 (2011).
110
Id. at 511; see also 18 U.S.C. § 3626(a).
111
See Plata, 563 U.S. at 511.
112
Plaintiffs also cite several United States Supreme Court opinions
(continued...)
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The Alaska Constitution and relevant statutes do not leave plaintiffs without
recourse. They may challenge discrete actions implementing State resource development
and environmental policies.113 They may attempt to legislate by initiative.114 They also
may continue advocating their position to the public and working to generate enough
legislative political will to enact their preferred policies and implementations into law.
But having a majority of elected legislators disagree with or lack the political will to
112
(...continued)
concerning unconstitutional racial discrimination in public schools and housing: Hills
v. Gautreaux, 425 U.S. 284 (1976); Brown v. Bd. of Educ., 349 U.S. 294 (1955); Bolling
v. Sharpe, 347 U.S. 497 (1954). Plaintiffs do not explain how these cases are legally
significant to the issue before us. We note that the issues are dissimilar and that,
although the remedies granted in the cited cases may have been complex or broad-based,
granting the necessary remedies did not require the Court to make policy decisions
explicitly constitutionally committed to Congress.
113
See, e.g., Nunamta Aulukestai v. State, Dep’t of Nat. Res., 351 P.3d 1041,
1064 (Alaska 2015) (determining certain mineral exploration permits constitute interest
in land and requiring public notice); Sullivan v. REDOIL, 311 P.3d 625, 637 (Alaska
2013) (interpreting Alaska Constitution to require consideration of cumulative impacts
throughout course of oil and gas projects); Cook Inlet Keeper v. State, Off. of Mgmt. &
Budget, Div. of Governmental Coordination, 46 P.3d 957, 962-66 (Alaska 2002)
(requiring State to review proposed offshore exploratory drilling site waste discharge for
compliance with coastal water protection program); N. Alaska Env’t Ctr. v. State, Dep’t
of Nat. Res., 2 P.3d 629, 639 (Alaska 2000) (requiring best interests finding to grant
utility-related right-of-way); Trs. for Alaska v. State, Dep’t of Nat. Res., 795 P.2d 805,
812 (Alaska 1990) (finding oil and gas lease sale deficient for failing to review
associated environmental problems).
114
Alaska Const. art. XI, § 1; Pebble Ltd. P’ship ex rel. Pebble Mines Corp.v.
Parnell, 215 P.3d 1064, 1085 (Alaska 2009) (upholding ballot initiative intended to
regulate large-scale mining).
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enact or implement plaintiffs’ preferred policies does not justify an unconstitutional
judicial remedy.115
b. Plaintiffs’ declaratory relief claims and prudential non­
justiciability analysis
Plaintiffs also sought a declaratory judgment stating that: (1) plaintiffs have
“fundamental and inalienable constitutional rights to life, liberty, and property . . . and
other unenumerated rights, including the right[] to a stable climate system that sustains
human life and liberty”; (2) the State has a public trust duty to protect Alaska’s natural
resources; (3) the State has violated plaintiffs’ various constitutional rights by
exacerbating climate change through its statutory energy policy; (4) the State has put
plaintiffs in danger by not reducing Alaska’s carbon emissions; (5) the State has
discriminated against plaintiffs as members of a protected age-based class through its
115
See Clinton v. City of New York, 524 U.S. 417, 449 (1998) (Kennedy, J.,
concurring) (“Failure of political will does not justify unconstitutional remedies.”).
Appellate courts in other states also have concluded that claims requiring the judiciary
to evaluate state energy-related policies may present political questions. Aji P. ex rel.
Piper v. Washington, 480 P.3d 438, 447 (Wash. App. 2021) (concluding claims asking
court to “address whether [Washington’s] current [carbon emission] statutes and
regulations sufficiently address climate change” presented “political questions” because
they “inevitably involve resolution of questions reserved for the” political branches),
petition for review filed, Petition for Discretionary Review, Aji P. v. Washington, No.
80007-8-I (Wash. Mar. 10, 2021); Sanders-Reed ex rel. Sanders-Reed v. Martinez, 350
P.3d 1221, 1227 (N.M. App. 2015) (concluding New Mexico “courts cannot
independently regulate greenhouse gas emissions in the atmosphere . . . based solely
upon a common law duty established under the public trust doctrine”); Svitak ex rel.
Svitak v. Washington, 178 Wash. App. 1020, 1-2 (2013) (concluding claim presented
“political question” on grounds that plaintiff asked “court to compel [Washington] to
create an economy-wide regulatory program to address climate pollution” that “would
necessarily involve resolution of complex social, economic, and environmental issues”).
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statutory energy policy; and (6) the State has violated its public trust duty to protect
Alaska’s natural resources.
As we stated in Kanuk:
The Baker factors for identifying non-justiciable issues do
not apply to judicial interpretations of the constitution.
Indeed, “[u]nder Alaska’s constitutional structure of
government, ‘the judicial branch . . . has the constitutionally
mandated duty to ensure compliance with the provisions of
the Alaska Constitution.’ ” . . . [C]laims seeking primarily an
interpretation of [the Alaska Constitution] and the public trust
doctrine do not present non-justiciable political questions.[116]
Plaintiffs’ declaratory relief claims, like those in Kanuk, do not necessarily
present non-justiciable political questions. Plaintiffs seek an interpretation of the Alaska
Constitution. They correctly note that we have a “constitutionally mandated duty to
ensure [executive and legislative branch] compliance with the provisions of the Alaska
Constitution.”117 But even if plaintiffs’ declaratory relief claims do not present non-
justiciable political questions, justiciability is not guaranteed.118
116
335 P.3d 1088, 1099-100 (Alaska 2014) (first and second alterations in
original) (footnotes omitted) (quoting State, Dep’t of Health & Soc. Servs. v. Planned
Parenthood of Alaska, Inc., 28 P.3d 904, 913 (Alaska 2001)).
117
Malone v. Meekins, 650 P.2d 351, 356 (Alaska 1982).
118
The nature of prudential doctrines allows for case-by-case determination
rather than adherence to bright-line rules. See, e.g., Johnson v. State, 328 P.3d 77, 82
(Alaska 2014) (“[T]he general preservation rule [for appealable error] is not absolute,
and it is subject to prudential exceptions.”); Alaskans for Efficient Gov’t, Inc. v. State,
153 P.3d 296, 298 (Alaska 2007) (noting that “rule against pre-election review [of
initiative’s constitutionality] is a prudential one” and “has never been absolute”);
Matanuska Elec. Ass’n v. Chugach Elec. Ass’n, 99 P.3d 553, 559 (Alaska 2004)
(observing that “the primary agency jurisdiction doctrine is one of prudence, and not an
absolute jurisdictional limitation”).
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A claim also must present an “actual controversy” that “is appropriate for
judicial determination” because it is “definite and concrete, touching the legal relations
of parties having adverse legal interests . . . . It must be a real and substantial controversy
admitting of specific relief through a decree of a conclusive character, as distinguished
from an opinion advising what the law would be upon a hypothetical state of facts.”119
As in Kanuk we must determine whether plaintiffs’ declaratory relief claims — absent
the prospect of any concrete injunctive relief — present an actual controversy. The
superior court concluded they do not. We agree.
We have discussed Alaska’s declaratory judgment framework in light of
its federal counterpart elsewhere and only briefly review it here.120 Although Alaska
courts may issue declaratory judgment when there is “an actual controversy,” courts are
not required to grant declaratory relief because it “is a ‘nonobligatory remedy.’ ”121
“[P]racticality and wise judicial administration” thus guide the discretionary decision to
grant or deny declaratory relief.122 And if a court declines to grant declaratory relief, it
119
Kanuk, 335 P.3d at 1100 (alteration in original) (quoting Jefferson v.
Asplund, 458 P.2d 995, 998-99 (Alaska 1969)); Declaratory Judgment Act,
AS 22.10.020(g) (“In case of an actual controversy in the state, the superior court, upon
the filing of an appropriate pleading, may declare the rights and legal relations of an
interested party seeking the declaration, whether or not further relief is or could be
sought.”).
120
Kanuk, 335 P.3d at 1100-03 (stating AS 22.10.020(g) was “intended to
parallel [its] federal counterpart[], and we therefore interpret [it] in light of pertinent
federal authority,” and discussing framework for reviewing decisions to grant or deny
declaratory judgment).
121
Lowell v. Hayes, 117 P.3d 745, 755 (Alaska 2005) (quoting Wilton v. Seven
Falls Co., 515 U.S. 277, 288 (1995)).
122
Id. (quoting Wilton, 515 U.S. at 288).
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need not undertake a “wasteful expenditure of judicial resources” in “the futile exercise
of hearing a case on the merits first.”123
Prudential concerns often caution against issuing declaratory relief.124 “We
have explained that declaratory judgments are rendered to clarify and settle legal
relations, and to ‘terminate and afford relief from the uncertainty, insecurity, and
controversy giving rise to the proceeding.’ ”125 Prudence therefore dictates that courts
should not grant declaratory relief unless it will meaningfully accomplish these goals.126
Consideration of these goals counsels against granting declaratory relief in this case, as
it did in Kanuk.127
In Kanuk we concluded that declaratory relief “could serve to clarify the
legal relations at issue, [but] it would certainly not ‘settle’ them.”128 We listed five
reasons the parties’ legal relations would have remained unsettled, because declaratory
relief would: (1) have had “no immediate impact on greenhouse gas emissions in
Alaska”; (2) not have compelled “the State to take any particular action”; (3) not have
protected “the plaintiffs from the injuries they allege[d] in their complaint”; (4) “not tell
the State what it need[ed] to do . . . to satisfy its trust duties and thus avoid future
litigation”; (5) conversely . . . not provide the plaintiffs any certain basis on which to
123
Wilton, 515 U.S. at 287-88.
124
See, e.g., Kanuk, 335 P.3d at 1101.
125
Lowell, 117 P.3d at 755 (quoting Jefferson v. Asplund, 485 P.2d 995, 997­
98 (Alaska 1969)).
126
Id.; see also Kanuk, 335 P.3d at 1100-03.
127
See Kanuk, 335 P.3d at 1100-03.
128
Id. at 1102.
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determine in the future whether the State has breached its duties as trustee.”129 We
concluded that declaratory relief would not have advanced “the goals of ‘terminat[ing]
and afford[ing] relief from the uncertainty, insecurity, and controversy giving rise to the
proceeding’ and would thus fail to serve the principal prudential goals of declaratory
relief.”130 Declaratory relief in this case thus should be granted only if it settled the legal
relations between the parties more fully than it would have in Kanuk.
Plaintiffs argue that the prudential analysis in Kanuk does not apply in this
case “given the distinct factual circumstances underlying the present case, including the
. . . acceleration of climate change.” But our prudential analysis in Kanuk did not turn
on climate change acceleration; it turned on our inability to “provide the plaintiffs any
certain basis on which to determine in the future whether the State has breached its
duties.”131 Plaintiffs do not explain how this case’s “distinct factual circumstances” make
it more likely that declaratory relief would achieve this goal. In truth a dynamic
acceleration of climate change would reinforce the reality that the judiciary is the least
competent branch to address climate challenges because we “lack . . . scientific,
economic, and technological resources” and “may not commission scientific studies or
convene groups of experts” essential to understanding evolving complexities.132
129
Id.
130
Id. (alterations in original) (quoting Lowell, 117 P.3d at 755).
131
Id.
132
See id. at 1099 (quoting Am. Elec. Power Co. v. Connecticut, 564 U.S. 410,
428 (2011)).
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We see two relevant differences between this case and Kanuk. The Kanuk
plaintiffs asserted a single right under the public trust doctrine;133 in this case plaintiffs
assert additional constitutional rights beyond the public trust doctrine. And the Kanuk
plaintiffs alleged that the State had violated their rights through inaction;134 in this case
plaintiffs allege that the State has violated their rights through past actions implementing
the State’s energy policy. But neither distinction suggests that granting declaratory relief
(absent injunctive relief) would settle the parties’ legal relations more fully than it would
have in Kanuk. Declaratory relief alone still would “have no immediate impact on
[carbon] emissions,” “would not compel the State to take any particular action,” and
would not “protect the plaintiffs from the injuries they allege.”135 It also would not tell
the State how to fulfill its constitutional obligations or help plaintiffs determine when
their constitutional rights have been violated.136 Without judicially enforceable
standards, which the political question doctrine prevents us from developing, declaring
the existence or even violation of plaintiffs’ various purported constitutional rights would
not settle the parties’ legal relations any more than it would have in Kanuk.
The dissent concedes that this is the correct result if Kanuk is followed.137
But the dissent concludes that our Kanuk analysis no longer is sound.138 The dissent
agrees with plaintiffs that article VIII and its implied public trust doctrine create
133
Id.134
Id. at 1090-91.
135
See id. at 1102 (explaining that declaratory relief would not settle parties’
legal relations).
136
See id.
137
Dissent at 59.
138
Id. at 59-60.
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individual fundamental constitutional “rights in the development, conservation, and use
of our natural resources and environment.”139 And the dissent agrees with plaintiffs that
article VIII grants each Alaskan an individual fundamental constitutional “right to a
climate system that is healthy enough to ‘sustain human life, liberty, and dignity.’ ”140
Finally, the dissent agrees with plaintiffs that we should effectively enter declaratory
judgment in their favor by holding that they have individual fundamental constitutional
rights to Alaska’s natural resources under article VIII, which includes a right to a stable
climate system.141
The dissent describes this as “an admittedly small step in the daunting
project of focusing governmental response to” climate change.142 But the dissent says
nothing about the next step it would take in this case. The plaintiffs’ ultimate goal in
having us recognize a new fundamental constitutional right — and requiring a State
response to global climate change — can be realized only if plaintiffs are allowed to
pursue a remedy for the claimed violations of their fundamental constitutional rights.
Would the dissent remand for further proceedings to allow plaintiffs to seek their
injunctive remedies? Or does the dissent continue to agree with Kanuk’s proposition that
the political question doctrine prevents plaintiffs from seeking relief in this context? If
the latter, what point is there in the dissent’s proposed creation of unenforceable
fundamental constitutional rights under article VIII?143
139
Id. at 63, 65.
140
Id. at 61.
141
Id. at 61-62.
142
Id. at 68.
143
The New Mexico experience is instructive. In 1971, after a special election,
(continued...)
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If the dissent envisions allowing plaintiffs to seek to establish violations of
their constitutional rights, that would entirely disregard, and indeed effectively would
overrule, our precedent about the judiciary’s limited role in determining whether, in a
challenge to agency action regarding natural resource development and environmental
143
(...continued)
New Mexico added an explicit constitutional provision requiring its legislature to protect
the environment. See Craig T. Othmer & Henry M. Rivera, On Building Better Laws for
New Mexico’s Environment, 4 N.M. L. REV. 105, 105 n.1 (1973).
Article XX, section 21 of the New Mexico Constitution provides:
The protection of the state’s beautiful and healthful
environment is hereby declared to be of fundamental
importance to the public interest, health, safety and the
general welfare. The legislature shall provide for control of
pollution and control of despoilment of the air, water and
other natural resources of this state, consistent with the use
and development of these resources for the maximum benefit
of the people.
In Sanders-Reed v. Martinez the plaintiffs sought a judgment declaring that
the public trust doctrine imposes a state duty to regulate greenhouse gas emissions in
New Mexico. 350 P.3d 1221, 1222 (N.M. App. 2015). The New Mexico Court of
Appeals agreed with the plaintiffs that New Mexico’s constitutional provision
“recognizes that a public trust duty exists for the protection of New Mexico’s natural
resources, including the atmosphere, for the benefit of the people of this state.” Id. at
1225. But the court also noted that the constitutional provision “delegates the
implementation of that specific duty to the Legislature.” Id. at 1226. The court
concluded that whatever common law power the judicial branch may have had under the
public trust doctrine to “independently establish the best way to implement protections
for the atmosphere, apart from its judicial review [of agency] actions” was superseded
by the constitutional delegation to the legislature and the legislature’s corresponding
“statutory scheme.” Id. The court further explained that issuing a decision that
“independently ignores and supplants the [adjudicative] procedures established” by the
legislature in its environmental laws would violate separation-of-powers principles. Id.
at 1227.
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protection, the agency has followed regulatory procedures and taken a “hard look” at all
relevant considerations.144 The judiciary’s formerly limited role would change to case­
by-case judicial determinations about the State’s compelling interests in resource
development, an individual’s fundamental right to a particular atmospheric carbon level,
and whether the State’s proposed action is sufficiently tailored or tethered to the State’s
interests.145 Judges would decide, as a matter of constitutional law, questions such as:
what comprises a stable climate system; is a stable climate system measured by Alaskans
uniquely susceptible to environmental harms or is there some arbitrary climate stability
level for most, but not all, Alaskans; and should a court ultimately order that the State
deny all permit applications for oil and gas drilling?
Declaratory judgment about the legislature’s article VIII duties would do
little more than restate the constitutional provisions while leaving the legislature to
resolve how the State should fulfill those duties for the maximum benefit of Alaskans
collectively.146 And a declaratory judgment about putative individual fundamental
constitutional rights to a stable climate system would provide no guidance to the
144
Cf. supra section II. C. (discussing limited judicial role in natural resource
policies due to “hard look” doctrine of ensuring that legislature has considered all
relevant factors when making natural resource decisions); supra note 143 (discussing
New Mexico court’s deferral to regulatory framework for constitutionally mandated
legislative decision-making on resource development and environmental protection).
145
See supra note 48 (discussing various constitutional frameworks for
resolving fundamental constitutional rights violation claims).
146
See supra note 143 (discussing New Mexico deferral to regulatory
framework for constitutionally mandated legislative decision-making on resource
development and environmental protection).
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legislature about undertaking its article VIII duties. We thus affirm the superior court’s
dismissal of plaintiffs’ declaratory relief claims on prudential grounds.147
c. Plaintiffs’ other argument about dismissal
Plaintiffs also argue that the superior court should not have dismissed their
case because a “claim should not be dismissed as long as some relief might be
available.”148 But plaintiffs identify no viable relief, and we do not require courts to
conduct trials based on the suggestion that some unidentified relief possibly could be
available. Plaintiffs ultimately face the same barrier the Kanuk plaintiffs faced: Their
claims for injunctive relief present non-justiciable political questions, and granting
declaratory relief alone would not meaningfully settle the legal relations between the
parties.149
B. Dismissal Of Plaintiffs’ Claims About The Denial Of The Rule-
making Petition
1. Standard of review
We apply the “reasonable and not arbitrary” standard to agency rule-
making decisions about adopting regulations.150 For questions of law involving agency
expertise, we apply the reasonable basis standard and “must confirm that the agency ‘. . .
has genuinely engaged in reasoned decision making’ and must verify that the agency has
147
Contrary to plaintiffs’ contention, we do not believe the superior court
“reached consideration of whether Alaska’s Constitution protects” the right to a stable
climate. The court ultimately “dismissed on prudential grounds” plaintiffs’ declaratory
relief claims.
148
Adkins v. Stansel, 204 P.3d 1031, 1033 (Alaska 2009).
149
See Kanuk ex rel. Kanuk v. State, Dep’t of Nat. Res., 335 P.3d 1088, 1100­
03 (Alaska 2014).
150
Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971).
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not failed to consider an important factor in making its decision.”151 But questions of
constitutional interpretation are reviewed de novo under the substitution of judgment
standard.152
2. Analysis
Plaintiffs asserted that the Department’s denial of their rule-making petition
violated their constitutional rights. The superior court viewed this constitutional
challenge as a claim that the denial was arbitrary, thus violating plaintiffs’ right to due
process in the agency proceedings. The court cited Johns v. Commercial Fisheries Entry
Commission, in which we affirmed courts’ “power . . . to look for administrative
compliance with the demands of due process.”153 When exercising this power, courts
consider whether the agency’s decision was reasonable and not arbitrary and whether it
complied with the applicable statutes.154 A decision is arbitrary if “an agency fails to
consider an important factor in making its decision”;155 an agency must take “a ‘hard
look’ at the salient problems” and “genuinely engage[] in reasoned decision making.”156
151
Alaska Ctr. for the Env’t v. State, 80 P.3d 231, 241 (Alaska 2003) (quoting
Trs. for Alaska v. State, Dep’t of Nat. Res., 795 P.2d 805, 809 (Alaska 1990)).
152
Club SinRock, LLC v. Mun. of Anchorage, Off. of Mun. Clerk, 445 P.3d
1031, 1033-34 (Alaska 2019) (quoting Studley v. Alaska Pub. Offs. Comm’n, 389 P.3d
18, 22-23 (Alaska 2017)).
153
699 P.2d 334, 339 (Alaska 1985).
154
See id. at 339-40.
155
Se. Alaska Conservation Council, Inc. v. State, 665 P.2d 544, 548-49
(Alaska 1983), superseded on other grounds by statute, ch. 86, SLA 2003.
156
Id. (emphasis omitted) (quoting Harold Leventhal, Environmental
Decisionmaking and the Role of the Courts, 122 U. PA. L. REV. 509, 511 (1974)).
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The superior court found no constitutional violation because the
Department “timely issued a four[-]page written decision that addressed each of
[p]laintiffs’ points” and explained its position “with supporting statutes, case law and
well-reasoned analysis,” and therefore the denial “satisfied the statutory due process
requirements described in Johns.” Notably, the Department’s decision shows
consideration of the “salient problem” central to plaintiffs’ petition: impending climate
disaster. The Department informed plaintiffs that responding to climate change was an
administration priority; that the governor recently had appointed a “senior advisor for
climate and directed her to work with state agencies, tribes and stakeholders on options
that best meet Alaska’s [climate-related] needs”; and that a petitioner group, Alaska
Youth for Environmental Action, had “been invited to send a representative to [an
upcoming] meeting . . . to discuss the path forward for Alaska.” The Department
“encourage[d] [plaintiffs] to continue to engage with the State’s executive branch and
to also reach out to the legislative branch, in seeking creative solutions to addressing
climate change in Alaska.” Because the Commissioner seriously considered the factors
important to his decision — including its impact on the climate crisis — we agree with
the superior court that the decision was not arbitrary and that it therefore satisfied due
process.
As the State points out, we never have described our power to review an
agency’s denial of a proposed regulation as extending beyond the procedural due process
review addressed in Johns.157 Plaintiffs argue, however, that the denial of their rule­
157
See 699 P.2d at 339 (noting that “[t]he absence of any mention of
reviewability in AS 44.62.230 [the statute providing for rulemaking petitions] does not
necessarily mean a court cannot pass on the validity of an act done pursuant to the
provision” and holding that “[c]ourts have the power in situations such as this . . . to look
for administrative compliance with the demands of due process”).
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making petition violated “substantive due process, equal protection, and public trust
rights” and that the superior court erred by failing to evaluate the decision under the
heightened standards applicable to these substantive constitutional rights. But plaintiffs
cite no authority for the proposition that an agency’s denial of a rule-making proposal
— contrasted with issuing a regulation158 or adjudicating a dispute159 — can violate an
individual’s fundamental constitutional rights. And this argument assumes the
Department’s rule-making authority is much broader than it may be.
The Department discussed several justifications for denying the rule-
making petition: that the proposed regulation, by setting “broad policy goals,” failed to
meet the definition of “regulation” established by Alaska Statutes and case law; that the
proposed regulation “require[d] actions that are inconsistent with practical and fiscal
constraints on the State and [the Department]”; that the proposed regulation went beyond
the Department’s statutory authority; that the proposed regulation conflicted with more
158
See, e.g., State, Dep’t of Fish &Game v. Manning, 161 P.3d 1215, 1219-25
(Alaska 2007) (analyzing whether subsistence hunting regulations were
unconstitutional); Church v. State, Dep’t of Revenue, 973 P.2d 1125, 1130-32 (Alaska
1999) (holding PFD eligibility regulations were constitutional); see also Hjelle v. Brooks,
377 F. Supp. 430, 440-42 (D. Alaska 1974) (holding crabbing regulations were
unconstitutional and enjoining enforcement of regulations).
159
See, e.g., Club SinRock, LLC v. Mun. of Anchorage, Off. of Mun. Clerk, 445
P.3d 1031, 1033, 1036-39 (Alaska 2019) (analyzing de novo free speech issue arising
from agency adjudication); see also McGrath v. Univ. of Alaska, 813 P.2d 1370, 1373­
74 (Alaska 1991) (explaining difference between rule making and adjudication and
noting “agencies employ rule[-]making procedures to resolve broad policy questions
affecting many parties and turning on issues of ‘legislative fact’ ” (quoting Indep.
Bankers Ass’n of Ga. v. Bd. of Governors of Fed. Rsrv. Sys., 516 F.2d 1206, 1215 (D.C.
Cir. 1975)); Erickson v. Mun. of Anchorage, 662 P.2d 963, 969 (Alaska App. 1983)
(defining legislative facts as “those assumptions of fact, involving social, political,
economic or scientific considerations, which a legislature . . . makes in the course of
reaching the policy decisions which it articulates in the form of statutes and ordinances”).
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lenient federal standards and therefore, under Alaska law, would require support from
peer-reviewed studies before it could be adopted; and that — given Alaska’s modest
contribution to global warming worldwide — the proposed regulation would not achieve
the petitioners’ goals even if implemented.
We find it sufficient to highlight one of these grounds: that the Department
cannot use its rule-making authority to “contradict a clear legislative policy.”160
Regulations must be “consistent with and reasonably necessary to implement the statutes
authorizing their adoption.”161 A regulation is invalid if it “conflicts with other
statutes.”162
The legislature’s stated energy policy recognizes “concerns about global
climate change” but at the same time “encourage[s] economic development by . . .
promoting the development, transport, and efficient use of nonrenewable and alternative
energy resources, including natural gas, coal, oil, gas hydrates, heavy oil, and nuclear
energy, for use by Alaskans and for export.”163 The legislature’s stated resource
development policy refers to “purposeful development of the state’s abundant natural
resources” being “undertaken after consideration of the social and economic views of
citizens impacted by the development, and only after adequate protection is assured for
160
See Richardson v. Felix, 856 F.2d 505, 511 (3d Cir. 1988) (“It is axiomatic
that an administrative regulation or practice cannot validly contradict a clear legislative
policy.”).
161
Manning v. State, Dep’t of Fish & Game, 355 P.3d 530, 534 (Alaska 2015)
(quoting Wilber v. State, Com. Fisheries Entry Comm’n, 187 P.3d 460, 464 (Alaska
2008)).
162
Id. (quoting Wilber, 187 P.3d at 464-65).
163
AS 44.99.115.
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Alaska’s environment.”164 And the legislature’s stated Arctic policy emphasizes a
commitment to economic development “consistent with the state’s responsibility for a
healthy environment,” including existing and new “approaches for responding to a
changing climate.”165 The Department reasonably could conclude that the proposed
regulation was inconsistent with the legislature’s statutory policies and thus outside its
delegated authority. Because the decision to deny the rule-making petition therefore has
“a reasonable basis in law,”166 we affirm the superior court’s rejection of plaintiffs’
challenge to the Department’s rule-making denial.
V. CONCLUSION
We AFFIRM the superior court’s dismissal of plaintiffs’ lawsuit.
164
AS 44.99.100(a).
165
AS 44.99.105(a)(1).
166
Alaska Cmty. Action on Toxics v. Hartig, 321 P.3d 360, 366 (Alaska 2014)
(quoting Storrs v. State Med. Bd., 664 P.2d 547, 554 (Alaska 1983)).
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MAASSEN, Justice, with whom CARNEY, Justice, joins, dissenting in part.
I disagree with the court’s rejection of declaratory relief as serving no
useful purpose. In my view, a balanced consideration of prudential doctrines requires
that we explicitly recognize a constitutional right to a livable climate — arguably the
bare minimum when it comes to the inherent human rights to which the Alaska
Constitution is dedicated.1
A. A Declaratory Judgment Is An Available Remedy.
This case was decided on a motion to dismiss. But “ ‘[m]otions to dismiss
are disfavored,’ and before dismissal will be granted it must be ‘beyond doubt that the
plaintiff can prove no set of facts that would entitle him or her to relief.’ ”2 “Even if the
relief demanded is unavailable, the claim should not be dismissed as long as some relief
might be available on the basis of the alleged facts.”3 The alleged facts in this case are,
essentially, that rapidly accelerating climate change is causing serious damage on a
spectrum ranging from the individual to the global, and that the State, while
acknowledging the problem, continues to actively compound it. Given these alleged
1
See Alaska Const. art. I, § 1 (“This constitution is dedicated to the
principles that all persons have a natural right to life, liberty, the pursuit of happiness,
and the enjoyment of the rewards of their own industry . . . .”).
2
Kanuk v. State, Dep’t of Nat. Res., 335 P.3d 1088, 1092 (Alaska 2014)
(alterations in original) (quoting Adkins v. Stansel, 204 P.3d 1031, 1033 (Alaska 2009)).
3
Adkins, 204 P.3d at 1033; see also Jefferson v. Asplund, 458 P.2d 995, 1000
(Alaska 1969) (“The test of the sufficiency of a complaint in a declaratory judgment
proceeding is not whether the complaint shows that the plaintiff will succeed in getting
a declaration of rights in accordance with his theory and contention but whether he is
entitled to a declaration of rights at all.” (citing City of Mobile v. Gulf Dev. Co., 171
So. 2d 247, 257 (Ala. 1965))).
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facts, a declaratory judgment about the nature of the rights at stake is a small but not
inconsequential bit of relief.
Five of the plaintiffs’ claims — paragraphs 3-7 of the amended
complaint — seek declarations that their “fundamental and inalienable constitutional
rights” have been violated by various actions of the State, both directly and through the
State’s energy policy. In order to determine whether the State’s constitutional duties
have been breached we must first determine whether a duty exists.4 This question is
raised by the amended complaint’s first two requests for declaratory judgment, which ask
the court to do the following:
1. Declare that Defendants have constitutional duties and
constitutional and statutory authority to protect and refrain
from infringing Plaintiffs’ fundamental and inalienable
constitutional rights to life, liberty, and property; equal rights,
opportunities and protection under the law; and other
unenumerated rights, including the rights to a stable climate
system that sustains human life and liberty [and] dignity, to
personal security and safety, autonomy, and other liberty
interests, including their capacity to provide for their basic
human needs, safely raise families, learn and practice their
religious and spiritual beliefs, learn and transmit their native
cultural traditions and practices, and lead lives with sufficient
access to clean air, water, shelter, and food.
2. Declare that Defendants have constitutional duties and
constitutional and statutory authority under the Public Trust
Doctrine to maintain control over and protect Alaska’s
waters, atmosphere, land, fish, wildlife, and other Public
4
Cf. Dore v. City of Fairbanks, 31 P.3d 788, 791 (Alaska 2001) (“In order
to reach the questions of whether the city has statutory immunity or has breached its
duty, we must first determine whether the city owes a duty in tort to the plaintiff.”);
Kooly v. State, 958 P.2d 1106, 1108 (Alaska 1998) (“Determining whether a duty exists
in the type of case presented is the first analytical step in deciding whether a negligence
action can be maintained.”).
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Trust Resources from substantial impairment, waste, and
alienation, and to manage such resources prudently and with
impartiality and loyalty to present generations, including
Youth Plaintiffs, and future generations.
The plaintiffs in Kanuk made similar requests. We described four of their claims for
relief as “of the sort that is within the institutional competence of the judiciary” to decide:
[A] declaratory judgment that (1) “the atmosphere is a public
trust resource under [a]rticle VIII”; (2) the State therefore
“has an affirmative fiduciary obligation to protect and
preserve” it; (3) the State’s duty is “enforceable by citizen
beneficiaries of the public trust”; and (4) with regard to the
atmosphere, the State “has failed to uphold its fiduciary
obligation.”[5]
We noted in Kanuk that “the plaintiffs do make a good case” for their declaratory
judgment claim.6 We explained that the public trust doctrine had its roots in “the
sovereign’s authority over management of fish, wildlife and water resources” and that
it was now “ ‘constitutionalized’ in Alaska’s common use clause, article VIII, section 3,”
which reserves these resources “to the people for common use.”7 We observed that our
earlier cases had “described the content of the trust, the State’s duty as trustee, and the
public’s status as beneficiary — reflecting three of the plaintiffs’ claims for declaratory
relief in this case,” and that the fourth claim, “[w]hether the State has breached a legal
5
Kanuk, 335 P.3d at 1099.
6
Id. at 1101-02.
7
Id. (quoting Owsichek v. State, Guide Licensing & Control Bd., 763 P.2d
488, 494 (Alaska 1988)).
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duty,” was also “a question we are well equipped to answer — assuming the extent of
the State’s duty can be judicially determined in the first place.”8
But notwithstanding our institutional ability to decide these issues, we
affirmed dismissal of the requests for declaratory relief in Kanuk, reasoning that
declaring the plaintiffs’ rights in the context of the public trust doctrine “would not
significantly advance the goals of ‘terminat[ing] and afford[ing] relief from the
uncertainty, insecurity, and controversy giving rise to the proceeding’ and would thus
fail to serve the principal prudential goals of declaratory relief.”9 We further explained:
“Within the very general framework of a public trust, ‘the rights and obligations of [the]
litigants’ with regard to the atmosphere would depend on further developments — by the
legislature, by executive branch agencies, and through litigation focused on more
immediate controversies.”10
The plaintiffs here contend that they have presented us with a “more
immediate controvers[y]” based on their challenge to the codified State Energy Policy,
AS 44.99.115(2)(B). The court decides that we should reach the same conclusion we did
in Kanuk and again, prudentially, reject all the plaintiffs’ claims for declaratory relief as
unlikely to resolve anything. I agree with the court that this conclusion is consistent with
Kanuk. A grant of declaratory relief here will not forestall future litigation over the same
or similar issues. Litigation over the government’s role in addressing climate change is
still in its infancy, and more challenges to state action based on its potential for
worsening the crisis are not just likely but certain, regardless of how we resolve this case.
8
Id. at 1099-1100.
9
Id. at 1102 (quoting Lowell v. Hayes, 117 P.3d 745, 755 (Alaska 2005)).
10
Id. at 1103.
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But I am no longer convinced that nothing can be gained by clarifying
Alaskans’ constitutional rights and the State’s corresponding duties in the context of
climate change. When considering the value of declaratory relief, the proliferation of
climate-change litigation cuts both ways. On the one hand, as the court cogently
explains today, it means that any decision we make here cannot “terminate and afford
relief from the uncertainty, insecurity, and controversy giving rise to the proceeding,”11
the consideration we found most compelling in Kanuk. But because prudential concerns
such as “practicality and wise judicial administration” also guide our use of declaratory
relief,12 we may conclude that it is an appropriate remedy even when terminating
controversy is not possible.13
Undoubtedly, Alaskans who bring future challenges to state actions alleged
to pose an unacceptable risk to the climate will continue to assert that a livable climate
is a constitutional right. Appellate courts like ours have almost always avoided the issue
on standing, justiciability, or prudential grounds; have decided that the constitution gives
no such right; or have done both.14 We decided in Kanuk that the plaintiffs had standing
11
Op. at 44 (quoting Lowell, 117 P.3d at 755).
12
Kanuk, 335 P.3d at 1101 (quoting Lowell, 117 P.3d at 756).
13
As the court observes, prudential doctrines, by their very nature, allow for
case-by-case determination rather than adherence to bright-line rules. Op. at 42 n.118.
14
See Juliana v. United States, 947 F.3d 1159, 1164 (9th Cir. 2020) (“The
central issue before us is whether, even assuming such a broad constitutional right [to a
‘climate system capable of sustaining human life’] exists, an Article III court can provide
the plaintiffs the redress they seek . . . . ”); Clean Air Council v. United States, 362
F. Supp. 3d 237, 244-53 (E.D. Pa. 2019) (dismissing complaint for lack of Article III
standing but also finding no constitutional basis for claims to “life-sustaining climate
system”).
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to assert their claims and that their claims for declaratory relief were justiciable.15 But
we have yet to say explicitly whether such claims have a basis in the Alaska Constitution.
This same important question is before us for the second time in six years.
It has been thoroughly briefed by committed parties and three groups of amici. Our
failure to answer the question now will not eliminate it but will only postpone our
answer, in the meantime putting the burden of redundantly litigating it on plaintiffs, the
State, and the trial courts, potentially to return to us on appeal again and again until we
conclude that prudence finally requires an answer. Given the urgency of the issue, I
would conclude that “practicality and wise judicial administration” militate strongly in
favor of limited declaratory relief identifying the constitutional source of the right
plaintiffs claim.16
B. The Public Trust Doctrine As “Constitutionalized” In Article VIII
Provides A Right To A Livable Climate.
The plaintiffs’ amended complaint asked for a declaratory judgment that
the Alaska Constitution recognizes the right to a climate system that is healthy enough
to “sustain human life, liberty, and dignity.” I agree that it does. And I am not as
stymied as the court is today by the inability to predict the course of future climate
litigation. As is true with every constitutional right, case law will continue to define the
right further in the context of more specific controversies — including the extent to
which it includes individuals’ interests in “safely rais[ing] families, learn[ing] and
15
Kanuk, 335 P.3d at 1092-1100.
16
See Chernaik v. Brown, 475 P.3d 68, 84 (Or. 2020) (Walters, C.J.,
dissenting) (asserting that “the time is now” for court to “determine the law that governs
the other two branches as they undertake their essential work” of addressing climate
change and that “[t]his court can and should issue a declaration that the state has an
affirmative fiduciary duty to act reasonably to prevent substantial impairment of public
trust resources”).
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practic[ing] their religious and spiritual beliefs, learn[ing] and transmit[ting] their
[N]ative cultural traditions and practices, and lead[ing] lives with sufficient access to
clean air, water, shelter, and food,” as the plaintiffs explain their claimed right in the
amended complaint. Courts have grappled diligently with such unformed concepts as
“fundamental rights,”17 “substantive due process,”18 and “right of privacy,”19 clarifying
rights and duties a case at a time. That we cannot answer every subsequent question does
not mean we should shy away from answering the first.
The plaintiffs identify a number of possible sources for their claimed
constitutional right to a healthy climate system. They contend that the State’s energy
policy, by causing and contributing to climate change, violates their substantive due
process rights under article I, section 7; their equal protection rights under article I,
section 1; and their “public trust rights” under article VIII.
The plaintiffs’ substantive due process claims, though well reasoned, have
minimal support in existing case law. They rely heavily on United States District Judge
17
See, e.g., In re Tammy J., 270 P.3d 805, 813 (Alaska 2012) (identifying
“personal decisions relating to marriage, procreation, contraception, family relationships,
child rearing, and education” as among the fundamental rights protected by substantive
due process (quoting Lawrence v. Texas, 539 U.S. 558, 573-74 (2003))).
18
See, e.g., id.; Doe v. Dep’t of Pub. Safety, 444 P.3d 116, 125 (Alaska 2019)
(“Substantive due process is a doctrine that is meant to guard against unfair, irrational,
or arbitrary state conduct that ‘shock[s] the universal sense of justice.’ ” (alteration in
original) (quoting Church v. State, Dep’t of Rev., 973 P.2d 1125, 1130 (Alaska 1999))).
19
See, e.g., Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (recognizing
“the zone of privacy created by several fundamental constitutional guarantees”). In
Alaska, of course, the constitutional right of privacy is explicit. Alaska Const. art. I,
§ 22.
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Aiken’s decision in Juliana v. United States20 that public trust claims brought under
federal law were enforceable as substantive due process claims under the Fifth
Amendment’s Due Process Clause21 and the Ninth Amendment.22 The Ninth Circuit
reversed the district court’s decision on standing grounds while assuming the existence
of the constitutional right;23 District Judge Staton, sitting on the panel by designation and
writing in dissent, located the constitutional right at issue not in substantive due process
bur rather in the “perpetuity principle” that “is structural and implicit in our
constitutional system”: that is, a principle “that the Constitution does not condone the
Nation’s willful destruction.”24
These recent constitutional interpretations are novel and provocative.25 But
in Alaska there is a more obvious source of the right at issue in article VIII, which is
devoted entirely to defining the people’s rights in the development, conservation, and use
of our natural resources and environment.
20
217 F. Supp. 3d 1224, 1260-61 (D. Or. 2016), rev’d, 947 F.3d 1159 (9th
Cir. 2020).
21
“No person shall . . . be deprived of life, liberty, or property, without due
process of law.”
22
“The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.”
23
Juliana, 947 F.3d at 1169-70.
24
Id. at 1175, 1177-79 (Staton, J., dissenting).
25
See, e.g., Scott Novak, The Role of Courts in Remedying Climate Chaos:
Transcending Judicial Nihilism and Taking Survival Seriously, 32 GEO. ENV. L. REV.
743 (2020); Bradford C. Monk, Does the Evolving Concept of Due Process in Obergefell
Justify Judicial Regulation of Greenhouse Gases and Climate Change?: Juliana v.
United States, 52 U.C. DAVIS L. REV. 855 (2018).
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We addressed article VIII in Kanuk in the context of the public trust
doctrine; the plaintiffs had asked us to declare that the atmosphere was a public trust
resource the State had an affirmative duty to protect.26 We did not find it necessary to
answer that question. We observed that “if the plaintiffs are able to allege claims for
affirmative relief in the future that are justiciable under the political question doctrine,
they appear to have a basis on which to proceed even absent a declaration that the
atmosphere is subject to the public trust doctrine.”27 Because the various aspects of our
ecosystem are interdependent, “[a]llegations that the State has breached its duties with
regard to the management of” individual resources “such as water, shorelines, wildlife,
and fish” — which we have already recognized as subject to the public trust
doctrine — “do not depend on a declaratory judgment about the atmosphere.”28 Simply
put, the public trust doctrine is implicated by allegations that a particular State action
exacerbates the climate crisis and thereby harms “water, shorelines, wildlife, and
fish” — as the plaintiffs have alleged here.
By making those allegations, the plaintiffs plainly seek vindication of a
constitutional right. Article VIII emphasizes the importance of resource development
but also the importance of environmental stewardship. Article VIII, section 2, says that
“[t]he legislature shall provide for the utilization, development, and conservation of all
natural resources belonging to the State, including land and waters, for the maximum
benefit of its people.” (Emphasis added.) Section 3 states the “common use” principle:
“Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the
people for common use.” Section 4 articulates the “sustained yield” principle: “Fish,
26
Kanuk v. State, Dep’t of Nat. Res., 335 P.3d 1088, 1099 (Alaska 2014).
27
Id. at 1103.
28
Id.
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forests, wildlife, grasslands, and all other replenishable resources belonging to the State
shall be utilized, developed, and maintained on the sustained yield principle, subject to
preferences among beneficial uses.” Interpreting these provisions, we have observed that
“[a]rticle VIII requires that natural resources be managed for the benefit of all people,
under the assumption that both development and preservation may be necessary to
provide for future generations, and that income generation is not the sole purpose of the
trust relationship.”29 And as article VIII was described to the voters at the time of
Statehood, its “primary purpose is to balance maximum use of natural resources with
their continued availability to future generations. In keeping with that purpose, all
replenishable resources are to be administered, insofar as practicable, on the sustained
yield principle.”30 As we pointed out in Kanuk, the legislature has recognized these
principles in declaring it “the policy of the state . . . to manage the basic resources of
water, land, and air to the end that the state may fulfill its responsibility as trustee of the
environment for the present and future generations.”31 Allegations that climate change
destroys natural resources or even limits their continuing availability for present and
29
Brooks v. Wright, 971 P.2d 1025, 1032 (Alaska 1999); see also Owsichek
v. State, 763 P.2d 488, 495 (Alaska 1988) (noting that “the common use clause impose[s]
upon the state a trust duty to manage the fish, wildlife and water resources of the state
for the benefit of all the people” (emphasis added)).
30
Cook Inlet Fisherman’s Fund v. State, Dep’t of Fish & Game, 357 P.3d
789, 803 (Alaska 2015) (emphasis in original) (quoting West v. State, Bd. of Game, 248
P.3d 689, 696 (Alaska 2010) (quoting THE ALASKA CONSTITUTIONAL CONVENTION,
PROPOSED CONSTITUTION FOR THE STATE OF ALASKA: A REPORT TO THE PEOPLE OF
ALASKA (1956))).
31
335 P.3d at 1102 n.78 (emphasis in original).
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future generations clearly implicate the State’s stewardship responsibilities under
article VIII.32
The court today takes a very narrow view of both the rights granted by
article VIII and our role in protecting those rights. The court is concerned that
recognizing an individual right to a livable climate would impinge on the legislative
prerogative to manage the State’s natural resources for the benefit of all Alaskans.33 But
the Constitution recognizes individual Alaskans’ rights vis-á-vis the State and their
fellow citizens in a number of different contexts.34 The judiciary acts within its delegated
role when it concludes that the legislature, despite its broad article VIII powers, has
32
See Sanders-Reed v. Martinez, 350 P.3d 1221, 1225 (N.M. 2015) (holding
that state constitutional provision declaring importance of state’s environment
“recognizes that a public trust duty exists for the protection of New Mexico’s natural
resources, including the atmosphere, for the benefit of the people of this state”).
33
Op. at 36.
34
See Alaska Const. art. VIII, § 11 (stating how mineral claimants discover
and appropriate mineral rights); id. at § 14 (providing that access to navigable waters
“shall not be denied to any citizen of the United States or resident of the State”); id. at
§ 16 (providing that “[n]o person shall be involuntarily divested of” rights in natural
resources without just compensation and operation of law); id. at § 17 (providing that
natural resource laws “apply equally to all persons similarly situated”); id. at § 18
(authorizing “[p]roceedings in eminent domain . . . for private ways of necessity”); see
also Owsichek, 763 P.2d at 492 n.10 (“Since the right of common use is guaranteed
expressly by the constitution, it must be viewed as a highly important interest running
to each person within the state.” (emphasis added) (quoting with approval State v.
Ostrosky, 667 P.2d 1184, 1196 (Alaska 1983) (Rabinowitz, J., dissenting))).
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violated individual Alaskans’ article VIII rights.35 And as the court acknowledges,36 we
also act within our delegated role when we determine that an agency, despite having
taken the requisite “hard look at the salient problems,”37 has reached a decision that
infringes a constitutional right. We cannot exercise that oversight effectively without
first defining the individual rights that may be implicated.
Recognizing a right to a livable climate does not mean that the right is
violated whenever the legislature declares a resource development policy that harms the
climate, or whenever an executive agency implements such a policy. Even fundamental
rights are not absolute but must be “balanced against conflicting rights and interests,”38
which will often encompass policy judgments we are not equipped to make. But
Alaska’s courts do have the experience and expertise required to weigh the effect of
35
See McDowell v. State, 785 P.2d 1, 4-11 (Alaska 1989) (striking down
statute establishing rural preference for subsistence hunting and fishing as violating
article VIII, §§ 3, 15, and 17).
36
Op. at 16-18.
37
See Alpine Energy, LLC v. Matanuska Elec. Ass’n, 369 P.3d 245, 251
(Alaska 2016); Op. at 17.
38
Larson v. State, Dep’t of Corr., Bd. of Parole, 476 P.3d 293, 301 n.55
(Alaska 2020) (“ ‘The right to privacy is not absolute’ but is balanced against conflicting
rights and interests.” (quoting Jones v. Jennings, 788 P.2d 732, 738 (Alaska 1990)));
Planned Parenthood of the Great Nw. v. State, 375 P.3d 1122, 1163 n.52 (Stowers, J.,
dissenting) (Alaska 2016) (“Where a compelling state interest is shown, the right [to
privacy] may be held to be subordinate to express constitutional powers such as the
authorization of the legislature to promote and protect public health and provide for the
general welfare.” (quoting Gray v. State, 525 P.2d 524, 528 (Alaska 1974))); Breese v.
Smith, 501 P.2d 159, 168-69 (Alaska 1972) (Although student’s choice of hairstyle is
protected by “a fundamental constitutional right implicit in the concept of liberty as
guaranteed by the constitution of Alaska, we do not hold that such right is absolute. . . .
[Personal freedoms] ‘must yield when they intrude upon the freedom of others.’ ”
(quoting Bishop v. Colaw, 450 F.2d 1069, 1075 (8th Cir. 1971))).
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specific government action on individual rights.39 And defining those rights is part of
our task. As recently summarized by Chief Justice Walters of the Oregon Supreme
Court: “How to address climate change is a daunting question with which the legislative
and executive branches of our state government must grapple. But that does not relieve
our branch of its obligation to determine what the law requires.”40
In my view, the law requires that the State, in pursuing its energy policy,
recognize individual Alaskans’ constitutional right to a livable climate. A declaratory
judgment to that effect would be an admittedly small step in the daunting project of
focusing governmental response to this existential crisis. But it is a step we can and
should take. For that reason I respectfully dissent.
39
See, e.g., Ellingson v. Lloyd, 342 P.3d 825, 831 (Alaska 2014) (deciding
that Board of Game failed to adequately consider facts and inconsistency with other laws
when adopting regulation defining when domestic animal becomes “feral” for game
purposes); State, Bd. of Fisheries v. Grunert, 139 P.3d 1226, 1240 (Alaska 2006)
(striking down emergency regulation allocating harvestable salmon as inconsistent with
Limited Entry Act); Cook Inlet Keeper v. State, Off. of Mgmt. & Budget, 46 P.3d 957,
965-66 (Alaska 2002) (holding that State’s review of offshore exploratory drilling
platform was deficient because it failed to consider discharges already permitted under
federal law).
40
Chernaik v. Brown, 475 P.3d 68, 93 (Or. 2020) (Walters, C.J., dissenting).
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