Hughes v. Treadwell ( 2015 )

Notice: This opinion is subject to correction before publication in the P ACIFIC R EPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
RICHARD HUGHES, THE ALASK A )
MINERS ASSOCIATION, and THE ) Supreme Court No. S-15468
COUNCIL OF ALASKA )
PRODUCERS, ) Superior Court No. 4FA-13-01296 CI
)
Appellants, ) OPINION
)
v. ) No. 6981 – January 30, 2015
)
MEAD TREADWELL, )
LIEUTENANT GOVERNOR OF )
THE STATE OF ALASKA, THE )
STATE OF ALASKA, DIVISION )
OF ELECTIONS, CHRISTINA )
SALMON, MARK NIVER, )
and JOHN H. HOLMAN, )
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska,
Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.
Appearances: Matthew Singer and Robert J. Misulich,
Jermain Dunnagan & Owens, P.C., Anchorage, for
Appellants. Elizabeth M. Bakalar, Assistant Attorney
General, and Michael C. Geraghty, Attorney General, Juneau,
for Appellees Lieutenant Governor Mead Treadwell and the
State of Alaska, Division of Elections. Timothy A.
McKeever and Scott M. Kendall, Holmes Weddle & Barcott,
P.C., Anchorage, for Appellees Christina Salmon, Mark
Niver, and John H. Holman.
Before: Winfree, Stowers, Maassen, and Bolger, Justices.
[Fabe, Chief Justice, not participating.]
STOWERS, Justice.
I. INTRODUCTION
Richard Hughes, the Alaska Miners Association, and the Council of Alaska
Producers (collectively referred to as “Hughes”) challenged Lieutenant Governor Mead
Treadwell’s certification of a ballot initiative that would require final legislative approval
for any large-scale metallic sulfide mining operation located within the Bristol Bay
watershed. Hughes argued that the initiative violates the constitutional prohibitions on
appropriation and enacting local or special legislation by initiative. Following oral
argument we issued an order affirming the superior court’s summary judgment order in
favor of the State and the initiative sponsors, and allowing preparation of ballots to
proceed.1 This opinion explains our reasoning.2
II. FACTS AND PROCEEDINGS
In October 2012 Lieutenant Governor Mead Treadwell received an
application for an initiative entitled “Bristol Bay Forever”; the Division of Elections
denominated the initiative “12BBAY.” The stated purpose of the initiative was to enact
law “providing for [the] protection of Bristol Bay wild salmon and waters within or
flowing into the existing 1972 Bristol Bay Fisheries Reserve.” Section 1 of the initiative
would add the following new section to AS 38.05:
1
Hughes v. Treadwell, 328 P.3d 1037 (Alaska 2014).
2
The initiative was passed by a majority of the voters in the
November 4, 2014 general election.
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Sec. 38.05.142. Legislative approval required for
certain large scale mines.
(a) In addition to permits and authorizations otherwise
required by law, a final authorization must be obtained from
the legislature for a large-scale metallic sulfide mining
operation located within the watershed of the Bristol Bay
Fisheries Reserve designated in AS 38.05.140(f). This
authorization shall take the form of a duly enacted law
finding that the proposed large-scale metallic sulfide mining
operation will not constitute danger to the fishery within the
Bristol Bay Fisheries Reserve.
(b) The commissioner may adopt regulations under
AS 44.62 to implement this section.
(c) In this section, “large-scale metallic sulfide mining
operation” means a specific mining proposal to extract
metals, including gold and copper, from sulfide-bearing rock
that would directly disturb 640 or more acres of land.
Section 2 would amend the “uncodified law of the State of Alaska” to make findings
recognizing the ecological and economic importance of the Bristol Bay Fisheries Reserve
and the potential adverse effects of metallic sulfide mining.3 After review by the
Department of Law — which concluded that the initiative did not make an appropriation
or enact local or special legislation and violated no other constitutional provisions — the
Lieutenant Governor certified 12BBAY.
In January 2013 Hughes challenged 12BBAY’s certification in superior
court, arguing that the initiative “constitutes impermissible local and special legislation
and violates the separation of powers doctrine.” Hughes amended his complaint several
times, joining the Alaska Miners Association and the Council of Alaska Producers as
3
Sections 3-5 of the initiative are not important to this appeal. Section 3 is
a grandfather clause that would protect existing mining operations. Section 4 is a
severability provision. Section 5 proposes an effective date.
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plaintiffs. Initiative sponsors Christina Salmon, Mark Niver, and John H. Holman
moved to intervene as defendants; the superior court granted their unopposed motion.
In February the initiative sponsors moved for summary judgment. They then filed a
separate answer to the amended complaint in March. In August Hughes cross-moved for
summary judgment. In January 2014 Hughes filed a third amended complaint, adding
a claim that 12BBAY would unconstitutionally appropriate state assets, and again moved
for summary judgment.
Considering his motions for summary judgment together, Hughes argued
that 12BBAY would: (1) enact local or special legislation in violation of article XI,
section 7 of the Alaska Constitution; (2) violate separation of powers under article XII,
section 11 of the Alaska Constitution; and (3) appropriate state assets in violation of
article XI, section 7 of the Alaska Constitution. The superior court concluded that
12BBAY would not enact local or special legislation, would not clearly violate
separation of powers, and would not appropriate public assets. The court granted
summary judgment in favor of the State and the initiative sponsors and declined to enjoin
placement of 12BBAY on the ballot. Hughes appeals to this court, challenging the
superior court’s conclusions that 12BBAY would not make an unconstitutional
appropriation of public assets or enact local or special legislation.
III. STANDARD OF REVIEW
We review a superior court’s summary judgment decision de novo, reading
the record in the light most favorable to, and drawing all reasonable inferences in favor
of, the non-moving party.4 Ballot initiatives are subject to pre-election review only
“where the initiative is challenged on the basis that it does not comply with the state
4
Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d
1064, 1072 (Alaska 2009) (citing Anchorage Citizens for Taxi Reform v. Municipality
of Anchorage, 151 P.3d 418, 422 (Alaska 2006)).
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constitutional and statutory provisions regulating initiatives” or “where the initiative is
clearly unconstitutional or clearly unlawful.”5 The constitutionality of a ballot initiative
is a question of law, which we review using our independent judgment, “adopting the
rule of law that is most persuasive in light of precedent, reason, and policy.”6 We
“construe voter initiatives broadly so as to preserve them whenever possible.”7 And “we
liberally construe constitutional and statutory provisions that apply to the initiative
process.”8 However, whether an initiative complies with article XI, section 7’s limits on
the right of direct legislation requires careful consideration.9
IV. DISCUSSION
Article XI, section 1 of the Alaska Constitution provides that “[t]he people
may propose and enact laws by the initiative.” But article XI, section 7 creates several
specific restrictions on this power: “The initiative shall not be used to dedicate revenues,
make or repeal appropriations, create courts, define jurisdiction of courts or prescribe
5
Alaskans for Efficient Gov’t, Inc. v. State, 153 P.3d 296, 298 (Alaska 2007)
(quoting State v. Trust the People, 113 P.3d 613, 614 n.1 (Alaska 2005)).
6
Pebble Ltd. P’ship, 215 P.3d at 1072 (citing Anchorage Citizens for Taxi
Reform, 151 P.3d at 422).
7
Id. at 1073 (quoting Anchorage Citizens for Taxi Reform, 151 P.3d at 422)
(internal quotation marks omitted).
8
Kodiak Island Borough v. Mahoney, 71 P.3d 896, 898 (Alaska 2003) (citing
Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999); Interior Taxpayers Ass’n v.
Fairbanks North Star Borough, 742 P.2d 781, 782 (Alaska 1987)).
9
Pebble Ltd. P’ship, 215 P.3d at 1073 (“[I]nitiatives touching upon the
allocation of public revenues and assets require careful consideration because the
constitutional right of direct legislation is limited by the Alaska Constitution.” (quoting
Anchorage Citizens for Taxi Reform, 151 P.3d at 422) (internal quotation marks
omitted)).
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their rules, or enact local or special legislation.” Here, Hughes argues that 12BBAY
violates article XI, section 7’s prohibition on appropriation by initiative and on enacting
local or special legislation by initiative. We conclude that 12BBAY would not
appropriate state assets or enact local or special legislation.
A. 12BBAY Does Not Violate Article XI, Section 7’s Anti-Appropriation
Clause.
Hughes argues that 12BBAY violates the anti-appropriation clause of
article XI, section 7 because it impermissibly interferes with the legislature’s
appropriation authority. Hughes contends that “12BBAY would set aside the entire
Bristol Bay Watershed for the purpose of propagating salmon” and “would immediately
ban new large-scale hardrock mining in this vast area without any further legislative
action.” The State and sponsors respond that 12BBAY is not an appropriation because
it regulates rather than allocates resources, expressly leaving final authority to allocate
state resources with the legislature.
We employ a two-part inquiry to determine whether an initiative makes an
appropriation of state assets in violation of article XI, section 7.10 First we must
determine “whether the initiative deals with a public asset.”11 Second, if the initiative
deals with a public asset, then we must determine “whether the initiative would
appropriate that asset.”12 None of the parties dispute the superior court’s conclusion that
“12BBAY concerns a ‘public asset.’ ” As the superior court noted, “[w]hether the
initiative is construed as one that affects fish, waters of the state or state lands, each of
10
Id. (citing Anchorage Citizens for Taxi Reform, 151 P.3d at 422).
11
Id. (quoting Anchorage Citizens for Taxi Reform, 151 P.3d at 422) (internal
quotation marks omitted).
12
Id. (quoting Anchorage Citizens for Taxi Reform, 151 P.3d at 423) (internal
quotation marks omitted).
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these resources is a public asset.”13 The issue here is whether 12BBAY appropriates fish,
waters of the state, or state lands.
In evaluating whether an initiative that deals with a state asset appropriates
that asset, we look to “two core objectives” of the prohibition against appropriation by
initiative.14 Those objectives are (1) “to prevent give-away programs that appeal to the
self-interest of voters and endanger the state treasury,”15 and (2) “to preserve legislative
discretion by ensur[ing] that the legislature, and only the legislature, retains control over
the allocation of state assets among competing needs.”16 Hughes does not challenge the
superior court’s conclusion that 12BBAY is not a give-away program. And that
conclusion is clearly correct: 12BBAY does not give away state resources to voters or
to any particular group, person, or entity.17 Thus, the only remaining question is whether
12BBAY impermissibly interferes with the legislature’s control over allocation of state
assets.
13
See id. at 1073-74 (holding that “the waters of the state are a public asset,”
and noting that “[this court has] previously determined that public land, public revenue,
a municipally-owned utility, and wild salmon are all public assets that cannot be
appropriated by initiative” (footnotes omitted)).
14
Id. at 1074-75 (citing Anchorage Citizens for Taxi Reform, 151 P.3d
at 423).
15
Id. (quoting Anchorage Citizens for Taxi Reform, 151 P.3d at 423).
16
Id. (emphasis in original) (quoting McAlpine v. Univ. of Alaska,
762 P.2d 88 (Alaska 1988)) (internal quotation marks omitted).
17
See City of Fairbanks v. Fairbanks Convention & Visitors Bureau, 818 P.2d
1153, 1157 (Alaska 1991) (concluding that an initiative was not a give-away program
because “[n]o particular group or person or entity [was] targeted to receive state money
or property, nor [was] there any indication that by passing [the] initiative, the voters
would be voting themselves money”).
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Hughes argues that because the legislature delegated the allocation of
mineral leases to the Department of Natural Resources (DNR), 12BBAY impermissibly
limits legislative discretion by forcing the legislature itself to make final allocation
decisions and thus violates the anti-appropriation clause. The superior court concluded
that 12BBAY does not limit legislative control over state assets because it expressly
leaves final authority for appropriating state resources in the hands of the legislature.
The superior court rejected Hughes’s argument that the second objective of the anti-
appropriation clause is violated when an initiative affects the process of making
appropriations.
We have previously stated that an initiative “narrows the legislature’s range
of freedom to make allocation decisions in a manner sufficient to render the initiative an
appropriation”18 when “the initiative ‘would set aside a certain specified amount of
money or property for a specific purpose or object in such a manner that is executable,
mandatory, and reasonably definite with no further legislative action.’ ”19 Several of our
decisions regarding whether particular initiatives would make an appropriation illuminate
this principle.
In McAlpine v. University of Alaska we considered an initiative that would
have established a state community college system and required the University of Alaska
to transfer certain property to the new system.20 We upheld the initiative’s provisions
creating and funding an independent community college system, but struck the
18
Pebble Ltd. P’ship, 215 P.3d at 1075 (citing Pullen v. Ulmer, 923 P.2d 54,
64 n.15 (Alaska 1996)).
19
Id. (quoting Staudenmaier v. Municipality of Anchorage, 139 P.3d 1259,
1262 (Alaska 2006)).
20
762 P.2d 81, 87-88 (Alaska 1988).
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initiative’s third sentence, which provided: “The amount of property transferred shall
be commensurate with that occupied and operated by the Community Colleges on
November 1, 1986.”21 We concluded that this language impermissibly “designat[ed] the
use of an ascertainable and definite amount of state assets” — that amount in use by the
community colleges on November 1, 1986.22 We noted that a key consideration
supporting this conclusion was that “no further legislative action would be necessary to
require the University to transfer property to the community college system, or to specify
the amount of property the University must transfer.”23 But we concluded that the
initiative’s second sentence, which provided that “[t]he University of Alaska shall
transfer to the Community College System of Alaska such real and personal property as
is necessary to the independent operation and maintenance of the Community College
System,”24 was not an appropriation because the legislature would maintain “all the
discretion it needs with respect to appropriations for community colleges.”25 We
reasoned that the legislature’s discretion would be limited only to the extent that the
legislature could not eliminate all appropriations for community colleges, and we saw
no realistic danger that the legislature would attempt to do so.26
In City of Fairbanks v. Fairbanks Convention & Visitors Bureau we
considered a local ballot initiative that would have amended a municipal ordinance
21
Id. at 83, 95-96.
22
Id. at 89-90.
23
Id. at 91.
24
Id. at 87.
25
Id. at 91.
26
Id.
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governing the use of funds from the city’s hotel tax by allowing revenue from the tax to
be used for non-tourist and entertainment purposes and eliminating the requirement that
a certain percentage of the tax go to the Fairbanks Convention and Visitors Bureau.27
We concluded that the initiative did not repeal an appropriation because the ordinance
it amended was not an “appropriation” as the legislature used the term in
AS 29.35.100 — “that is as an act which accompanies the approval of the annual budget
or is supplemental to that act.”28 We further concluded that the initiative was not an
appropriation in its own right because it would not “reduce the [city] council’s control
over the appropriations process. Instead, the initiative [would] allow[] the council
greater discretion in appropriating funds than [did] the current law.”29
In Pullen v. Ulmer we considered an initiative that would direct allocation
of the salmon harvest among competing users and would create preferences for
subsistence, personal, and recreational users.30 After determining that wild salmon were
a state asset,31 we held that the initiative would impermissibly appropriate that asset.32
We concluded that the initiative was a giveaway, both because it was “designed to appeal
to the self-interests of sport, personal and subsistence fishers” and would “significantly
reduce[] the legislature’s and Board of Fisheries’ control of and discretion over
allocation decisions, particularly in the event of stock-specific or region-specific
27
818 P.2d 1153, 1154-55 (Alaska 1991).
28
Id. at 1157.
29
Id. (emphasis added).
30
923 P.2d 54, 55 (Alaska 1996).
31
Id. at 61.
32
Id. at 63-64.
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shortages of salmon between the competing needs of users.”33 We distinguished
McAlpine by emphasizing that the initiative at issue could significantly limit the Board
of Fisheries’ discretion to make allocation decisions in times of shortages and that “there
is a very realistic danger that such shortages will occur.”34
In Alaska Action Center, Inc. v. Municipality of Anchorage we considered
an initiative that would have limited development on municipal property.35 We
concluded that the initiative was distinguishable from the permissible section of the
initiative in McAlpine because it “ ‘designat[ed] the use of’ specified amounts of public
assets in a way that encroaches on the legislative branch’s exclusive ‘control over the
allocation of state assets among competing needs.’ ”36 We rejected Alaska Action
Center’s argument that the initiative was distinguishable from the one at issue in
McAlpine because it did not mandate a transfer of property: “McAlpine did not
rest . . . on the fact that the initiative at issue there would have required a formal land
transfer; the ruling focused on the fact that the initiative directed a specific amount of
property to be used for a specified purpose.”37 We also emphasized that the prohibition
against appropriations is meant to keep “control of the appropriation process in the
33
Id. at 63.
34
Compare id. at 64 with McAlpine v. Univ. of Alaska, 762 P.2d 81, 91
(Alaska 1988) (upholding limitation on legislature’s discretion to eliminate all funding
for community colleges because there was “no realistic danger that the legislature would
attempt to do so”).
35
84 P.3d 989, 990-91 (Alaska 2004).
36
Id. at 994 (quoting McAlpine, 762 P.2d at 89; Pullen, 923 P.2d at 63)
(footnote omitted).
37
Id.
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legislative body”38 and concluded that the initiative would intrude on legislative control
by “limiting the mechanism for future change to another initiative process.”39
In Staudenmaier v. Municipality of Anchorage we considered whether two
initiatives that would have directed the municipality to sell utility assets would
impermissibly appropriate assets.40 The first initiative would have required the
municipality to sell Anchorage Municipal Light & Power Utility and its assets and would
have granted Chugach Electric Association a right of first refusal.41 The second initiative
would have required the municipality to sell the Anchorage Municipal Refuse Collection
Utility to the highest bidder.42 We concluded that the municipal clerk properly rejected
the initiative petitions because, by requiring the sale of public assets, they violated article
XI, section 7’s prohibition on appropriating by initiative.43 We explained that the line
between an unobjectionable initiative that deals with a public asset and one that is an
impermissible appropriation is crossed “where an initiative controls the use of public
assets such that the voters essentially usurp the legislature’s resource allocation role.”44
38
Id. (emphasis in original) (quoting City of Fairbanks v. Fairbanks
Convention & Visitors Bureau, 818 P.2d 1153, 1156 (Alaska 1991)) (internal quotation
marks omitted).
39
Id. at 994-95.
40
139 P.3d 1259, 1260 (Alaska 2006).
41
Id. at 1260-61.
42
Id. at 1261.
43
Id. at 1263.
44
Id. (citing Alaska Action Ctr. v. Municipality of Anchorage, 84 P.3d
989, 994 (Alaska 2004)).
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In Pebble Ltd. Partnership ex rel. Pebble Mines Corp. v. Parnell we
considered an initiative that would have regulated large-scale metallic mines for the
purpose of protecting water quality.45 We concluded that the initiative dealt with a public
asset — waters of the state — but that the initiative would not appropriate that asset.46
As in this case, no party argued that the initiative was a “give-away program.”47 Instead,
the primary question was “whether the initiative narrow[ed] the legislature’s range of
freedom to make allocation decisions in a manner sufficient to render the initiative an
appropriation.”48 We concluded that because the initiative was properly read as
“preclud[ing] only discharges of toxic chemicals and other mine waste that cause
‘adverse effects’ to humans, salmon, and waters used for human consumption or as
salmon habitat,” it did not make an appropriation.49 We stated that “the prohibition
against initiatives that appropriate public assets does not extend to prohibit initiatives that
regulate public assets, so long as the regulations do not result in the allocation of an asset
entirely to one group at the expense of another.”50 We further observed that the initiative
left the Department of Environmental Conservation and Department of Natural
45
215 P.3d 1064, 1069-70 (Alaska 2009).
46
Id. at 1074-77.
47
Id. at 1075.
48
Id. (citing Pullen v. Ulmer, 923 P.2d 54, 64 n.15 (Alaska 1996)).
49
Id. at 1077.
50
Id.-13- 6981
Resources the discretion to determine specific amounts of toxic pollutants that may be
discharged and did not exhibit any “explicit preference among potential users.”51
In Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough we
considered a ballot initiative passed by voters that required voter approval for all
Borough capital projects with a total cost in excess of one million dollars.52 We
concluded that requiring voter approval for a specific class of Borough expenditures was
an appropriation, and, therefore, the initiative was invalid.53 We explained that “an
initiative may make an impermissible appropriation not only when it designates public
assets for some particular use, but also when it allocates those assets away from a
particular group.”54 We concluded that the voters would not invariably approve all
capital projects placed on the ballot as a result of the initiative, and thus the initiative
would allocate assets away from those capital projects meeting the voter-approval
threshold.55
Most recently in Municipality of Anchorage v. Holleman we considered,
among other things, whether a referendum to repeal a municipal ordinance was an
appropriation.56 The ordinance at issue made a number of changes to the employee
relations chapter of the Anchorage Municipal Code, including limiting overtime
compensation, prohibiting strikes, and placing new restrictions on collective
51
Id.52
273 P.3d 1128, 1130 (Alaska 2012).
53
Id. at 1137-38.
54
Id. at 1138 (emphasis added) (citing Pullen v. Ulmer, 923 P.2d 54, 64
(Alaska 1996)).
55
Id.56
321 P.3d 378, 380 (Alaska 2014).
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bargaining.57 The municipality argued that by repealing an ordinance intended to save
money on labor costs, the referendum would effectively appropriate public assets that the
municipal assembly could direct to other priorities.58 We rejected that argument, noting
that “we have never held that any effect on public resources triggers the prohibition on
direct legislation; nearly all legislation involves public assets to some degree.”59 We
observed that “the referendum [did] not compel or restrict the expenditure of public
funds, the approval of labor contracts, or any particular level of employee
compensation,” and that “the economic effects of the ordinance are indirect and presently
unknowable.”60 Thus, we concluded that the referendum was not an “ ‘executable,
mandatory, and reasonably definite’ set-aside [of money or property] that our case law
requires before we will find that an initiative or referendum makes an appropriation.”61
Read together, these cases create a relatively detailed outline of when an
initiative or referendum impermissibly limits legislative discretion to allocate state assets
in violation of article XI, section 7. An initiative or referendum may: (1) mandate a non­
appropriative allocation of property — including a transfer of property from a specific
government entity — sufficient to accomplish a particular purpose;62 (2) repeal a
57
Id. at 380-81.
58
Id. at 384.
59
Id.
60
Id. at 385.
61
Id. (quoting Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula
Borough, 273 P.3d 1128, 1136 (Alaska 2012)).
62
See McAlpine v. Univ. of Alaska, 762 P.2d 81, 87, 96 (Alaska 1988)
(approving initiative’s requirement that the University of Alaska transfer to an
independent community college system “such real and personal property as is necessary
(continued...)
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legislative enactment that designates the use of government funds, as long as the statute
or ordinance is not an “appropriation” as the legislature used the term in AS 29.35.100;63
(3) increase the legislative body’s discretion in making appropriations by changing
existing law;64 (4) regulate the use of public assets;65 or (5) repeal a legislative enactment
intended to reduce government expenditures in a particular area of the budget.66
But an initiative or referendum may not: (1) require the allocation of “an
ascertainable and definite amount of state assets”;67 (2) set aside specified property for
a particular use, especially where the initiative “limit[s] the mechanism for future change
to another initiative process”;68 (3) set preferences among user groups of a particular
62
(...continued)
to the independent operation and maintenance of the Community College System”).
63
See City of Fairbanks v. Fairbanks Visitors & Convention Bureau, 818 P.2d
1153, 1157 (Alaska 1991) (concluding that initiative amending a city ordinance that
designated the use of the city’s hotel tax did not repeal an appropriation).
64
See id. (concluding that initiative could not be an appropriation if it
expanded the legislature’s authority to allocate funds).
65
Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d
1064, 1077 (Alaska 2009) (concluding that an initiative precluding discharge of mining
waste that causes “ ‘adverse effects’ to humans, salmon, and waters used for human
consumption or as salmon habitat” was not an appropriation).
66
Holleman, 321 P.3d at 381-85 (upholding referendum that would repeal
municipal ordinance intended to reduce the Municipality of Anchorage’s labor costs).
67
See McAlpine, 762 P.2d at 87-91 (striking from initiative a provision
requiring the University of Alaska to transfer the amount of property “commensurate
with that occupied and operated by the Community Colleges on November 1, 1986”).
68
See Alaska Action Ctr., v. Municipality of Anchorage, 84 P.3d 989, 994-95
(Alaska 2004) (invalidating initiative limiting the use of a particular area of municipal
(continued...)
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public resource;69 (4) require the sale of specified public assets;70 or (5) require voter
approval for any public expenditure of funds within a particular class.71 Additionally,
an initiative that regulates the use of public assets may not “result in the allocation of an
asset entirely to one group at the expense of another.”72 These cases also suggest that a
limitation on legislative discretion is only an “appropriation” where the limitation would
restrict a plausible legislative choice.73
The effect of 12BBAY is similar to that of the initiative at issue in City of
Fairbanks in that it ultimately gives the legislature more discretion whether to approve
a particular mining project. In City of Fairbanks an existing ordinance allocated the use
68
(...continued)
land).
69
See Pullen v. Ulmer, 923 P.2d 54, 64 (Alaska 1996) (invalidating initiative
establishing preferences for subsistence, personal, and recreational users in salmon
fishery).
70
See Staudenmaier v. Municipality of Anchorage, 139 P.3d 1259, 1260-63
(Alaska 2006) (upholding municipality’s rejection of initiative requiring the municipality
to sell specified public utility assets).
71
See Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough,
273 P.3d 1128, 1137-38 (Alaska 2012) (invalidating initiative requiring voter approval
for all Borough capital expenditures in excess of one million dollars).
72
Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d
1064, 1077 (Alaska 2009).
73
See Pullen, 923 P.2d at 64 (holding that initiative setting user preferences
in salmon fishery was an appropriation because it would limit the Board of Fisheries’
discretion to make allocation decisions in times of shortage and “there is a very realistic
danger that such shortages will occur”); McAlpine v. Univ. of Alaska, 762 P.2d 81, 91
(Alaska 1988) (concluding that limiting legislature’s discretion to eliminate all
appropriations for community colleges was permissible because there was no realistic
danger that the legislature would attempt to do so).
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of hotel tax revenue and the initiative would have returned complete control of that
revenue to the City Council.74 In the present case an extensive set of statutes and
regulations governs mining, and the legislature has delegated permitting decisions to
DNR. 12BBAY would alter that scheme by returning final decision-making authority
to the legislature for proposed “large-scale metallic sulfide mining operation[s] located
within the watershed of the Bristol Bay Fisheries Reserve.”
12BBAY is also distinguishable from each case where this court has
invalidated an initiative on the basis that it interferes with the legislature’s control over
resource allocation. Unlike the initiative at issue in McAlpine, 12BBAY would not direct
the use of “an ascertainable and definite amount of state assets.”75 While 12BBAY
would regulate resource use in an identified geographic area, it does not set that area
aside for a particular use as the initiative in Alaska Action Center would have.76
12BBAY does not require the sale of any public assets and does not require voter
approval for any expenditure of public funds.77 Finally, contrary to Hughes’s assertion,
12BBAY does not attempt to allocate any state assets to one user group to the exclusion
of another.78 Adding an additional regulatory step for large-scale mining projects may
or may not benefit the fishing industry and burden a segment of the mining industry, but
74
818 P.2d 1153, 1154-55 (Alaska 1991).
75
762 P.2d at 89.
76
84 P.3d 989, 995-96 (Alaska 2004).
77
See Staudenmaier v. Municipality of Anchorage, 139 P.3d 1259, 1263
(Alaska 2006); Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough,
273 P.3d 1128, 1137-38 (Alaska 2012).
78
See Pullen, 923 P.2d at 64 (invalidating initiative that would have
established preferences for subsistence, personal, and recreational users in salmon
fishery).
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it certainly does not “result in the allocation of an asset entirely to one group at the
expense of another.”79 And, ultimately, the legislature retains the discretion to make the
necessary findings and decisions.
12BBAY undeniably would alter the legislature’s existing scheme for
allocating and regulating the use of the state’s mineral resources. But this court
concluded in Pebble Limited Partnership that there is no prohibition on initiatives
altering existing public resource regulations.80 An initiative violates the anti-
appropriation clause of article XI, section 7 only when it “controls the use of public
assets such that the voters essentially usurp the legislature’s resource allocation role.”81
12BBAY does not cross that line. Because the legislature would retain ultimate control
over allocation of state assets, 12BBAY is not an appropriation.
B. 12BBAY Does Not Violate Article XI, Section 7’s Local And Special
Legislation Clause.
Hughes argues that 12BBAY violates the local and special legislation
clause of article XI, section 7 of the Alaska Constitution. He asserts that there is no
legitimate basis for 12BBAY’s narrow geographic scope. The State responds that
12BBAY is not unconstitutional under this court’s interpretation of article XI, section
7’s local and special legislation prohibition as articulated in Pebble Limited Partnership.
Both article XI, section 7 of the Alaska Constitution and AS 15.45.010
prohibit enacting local or special legislation by initiative. This prohibition is absolute.
Article XI, section 7 provides that “[t]he initiative shall not be used to . . . enact local or
79
See Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d
1064, 1077 (Alaska 2009) (citing Pullen, 923 P.2d at 63-64).
80
Id.
81
Staudenmaier, 139 P.3d at 1263 (citing Alaska Action Ctr., 84 P.3d
at 994-95).
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special legislation.” 82 We apply a “two-stage analysis for determining whether proposed
legislation is ‘local or special legislation’ barred by article XI, section 7.”83 We first
consider “whether the proposed legislation is of general, statewide applicability.”84 If
the initiative is generally applicable, the initiative will not enact local or special
legislation and the inquiry ends.85 If the initiative is not generally applicable, we move
on to consider whether the initiative nevertheless “bears a fair and substantial
relationship to legitimate purposes.”86 We have explained that this standard is analogous
to our most deferential standard of equal protection review.87
The parties agree that 12BBAY is not generally applicable. We agree and
therefore next consider whether 12BBAY “bears a fair and substantial relationship to
82
This contrasts with article II, section 19, under which a legislative act that
is “local or special” may still be constitutional, so long as a general act could not have
been made applicable. Hughes argues that 12BBAY is local or special legislation
because the initiative could have been drafted to apply statewide. But neither article XI,
section 7, nor any other source of authority in Alaska, suggests that an initiative would
enact local or special legislation simply because it could have been drafted to apply
statewide. Article II, section 19 implies that local or special legislation may be
permissible where a general act could not have been made applicable, but that provision
does not apply to initiatives. While the substantive provisions of these two constitutional
provisions differ, the analysis they use to determine whether particular legislation is
“local or special” is the same.
83
Pebble Ltd. P’ship, 215 P.3d at 1078.
84
Id. (citing Boucher v. Engstrom, 528 P.2d 456, 461 (Alaska 1974),
overruled on other grounds by McAlpine v. Univ. of Alaska, 762 P.2d 81, 85 (Alaska
1988)).
85
Id.86
Id. at 1079 (quoting State v. Lewis, 559 P.2d 630, 643 & n.44 (Alaska
1977)) (internal quotation marks omitted).
87
Id. (citing Boucher, 528 P.2d at 461).
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legitimate purposes.”88 12BBAY’s purpose is to protect “Bristol Bay wild salmon and
waters within or flowing into the existing 1972 Bristol Bay Fisheries Reserve.” We
conclude there is no serious question that requiring legislative approval of large-scale
metallic sulfide mining operations in the Bristol Bay watershed bears a fair and
substantial relationship to that purpose.89 Thus, we must consider only whether
protecting “Bristol Bay wild salmon and waters within or flowing into the existing 1972
Bristol Bay Fisheries Reserve” comprises a legitimate purpose. We conclude that it
does.
The superior court determined that protecting the Bristol Bay fishery is
legitimate because the legislation creating the Bristol Bay Fisheries Reserve had the same
purpose and applied to the same geographic area as 12BBAY. The court stated that “[i]n
effect . . . , [Hughes’s] attack on 12BBAY as local and special legislation is really a
misdirected attack on the creation of the fisheries reserve in 1972” and that “[t]here is
nothing in Alaska constitutional jurisprudence that authorizes a collateral constitutional
attack on an existing statute in the guise of a pre-election challenge to an initiative that
does not seek to revise the existing statute.”
Hughes argues that the superior court erred by concluding that
AS 38.05.140(f) justified 12BBAY’s special treatment of the Bristol Bay watershed. He
suggests that the correct question is “whether the narrow classification drawn by the
legislation that is actually at issue is fairly and substantially justified.” As discussed
above, the issue here is whether protecting the Bristol Bay fishery comprises a legitimate
purpose, not whether it is “fairly and substantially justified.” While we conclude that
88
Id. (internal quotation marks omitted).
89
The record indicates that large-scale metallic sulfide mining has real
potential to affect water quality and fisheries.
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AS 38.05.140 is relevant to whether 12BBAY’s purpose is legitimate, we reject the
superior court’s conclusion that AS 38.05.140 is dispositive of that question. Under the
court’s reasoning, the purpose of any initiative that relies on the unchallenged
classification or geographic scope of an existing and unchallenged statute with a similar
purpose would be per se legitimate. Nothing in our jurisprudence supports such a rule.
Hughes argues there is no legitimate economic or biological basis for
limiting 12BBAY to the Bristol Bay watershed. His argument suggests that the
initiative’s geographic scope must be justified by detailed economic or scientific
findings. But such a requirement would not be consistent with our deferential “legitimate
purpose” test. In State v. Lewis it was sufficient that legislation allowing a specific land
transfer was “designed to facilitate statewide land use management and to resolve a host
of pressing legal issues arising in the context of [the Alaska Native Claims Settlement
Act].”90 In Baxley v. State it was sufficient that the oil and gas leases singled out for
modification had unique characteristics that could incentivize lessees to abandon the
fields before extracting all of the oil, thus implicating the state’s interest in maximizing
oil production.91
As the superior court discussed in its decision in this case, the legislature
recognized the importance of the Bristol Bay fishery by establishing the Bristol Bay
Fisheries Reserve in AS 38.05.140(f). This statute mandates that oil and gas leases or
exploration licenses may “not be issued on state owned or controlled land [within the
reserve] until the legislature by appropriate resolution specifically finds that the entry
90
559 P.2d 630, 643-44 (Alaska 1977).
91
958 P.2d 422, 430-31 (Alaska 1998).
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will not constitute danger to the fishery.”92 The record in this case also indisputably
establishes that the Bristol Bay watershed has unique ecological, geographic, and
economic characteristics; that the fishery has significant statewide importance; and that
metallic sulfide mining poses potential water quality risks. For example, the initiative
sponsors provided a report extensively documenting the economic importance of the
Bristol Bay salmon industry, which concluded that Bristol Bay has the world’s most
valuable wild salmon fishery. The initiative sponsors also provided a report discussing
the potentially significant impacts of a proposed large-scale mining project on the Bristol
Bay wild salmon ecosystem.
Hughes’s argument and the expert reports that he relies on paint a picture
of the Bristol Bay fishery as comparatively less economically and biologically important
than several other fisheries in the state. But even if this were correct, the Bristol Bay
fishery does not need to be the most important or best fishery in the state to justify
targeted legislation. Rather, it merely needs to have some unique statewide importance
that justifies geographically limited legislation.93 Even Hughes’s economist, Dr. Michael
Taylor, points to factors that distinguish Bristol Bay from the state’s other salmon-
producing regions and also show its significance to the state as a whole. For example,
Bristol Bay possesses a particularly high incidence of sockeye salmon relative to other
salmon species.94 Its salmon enter the supply chain through different markets than other
state fisheries — particularly Japan, China, and Russia — thus contributing to Alaska’s
92
AS 38.05.140(f).
93
See Baxley, 958 P.2d at 430-31.
94
Bristol Bay also has the vast majority of sockeye (red) salmon statewide;
chum and pink salmon represent the majority of the harvest in Prince William Sound and
Southeast Alaska. A significant loss of salmon in Bristol Bay would therefore
particularly affect the state’s sockeye salmon population.
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Asian-Russian export market. Bristol Bay has a significantly compressed harvest
window,95 with correspondingly low employment stability. Dr. Taylor states that
“[c]ompared to other regions in Alaska, the Bristol Bay salmon fishery is an economic
engine,” even though much of the economic benefit favors non-residents. The total
annual average (2008-2012) of gross earnings by salmon permit holders was
approximately $143,000,000 for Bristol Bay, $94,000,000 for Southeast Alaska, and
$93,000,000 for Prince William Sound. Excluding gross earnings by non-resident permit
holders, the annual averages for these three regions were approximately $61,000,000
(Bristol Bay), $56,000,000 (Southeast Alaska), and $71,000,000 (Prince William
Sound).
According to a report prepared by the University of Alaska Anchorage’s
Institute of Social and Economic Research titled “The Economic Importance of the
Bristol Bay Salmon Industry,” the Bristol Bay sockeye fishery “is the world’s most
valuable wild salmon fishery, and typically supplies almost half of the world’s wild
sockeye salmon.” The report states that in 2010 “harvesting, processing, and retailing
Bristol Bay salmon and the multiplier effects of these activities created $1.5 billion in
output or sales value across the United States.” “Between 2005 and 2010, Bristol Bay
averaged 67% of total sockeye salmon harvests (by volume) . . . .” In 2010, Bristol Bay
salmon fishing and processing employed an estimated 4,369 Alaska residents.
We conclude that Bristol Bay’s unique and significant biological and
economic characteristics are of great interest not just to the Bristol Bay region but to the
95
The commercial fishing season is six to eight weeks in Bristol Bay, but
most of the run occurs in just two weeks. This contrasts with fisheries in Prince William
Sound and Southeast Alaska, where the harvest windows are longer by a month or more.
Other fisheries that have higher incidence of coho or chum salmon may have several
months more of harvest as well.
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state as a whole. We also conclude that 12BBAY’s purpose — to protect “Bristol Bay
wild salmon and waters” — is legitimate. And we conclude that 12BBAY bears a fair
and substantial relationship to the initiative’s legitimate purpose.
The sponsors of 12BBAY certainly could have proposed an initiative of
statewide application, but instead they chose to focus on a very important fishery in a
single region. As we explained in Pebble Limited Partnership, however, “legislatures
routinely must draw lines and create classifications.”96 As in the equal protection
context, “we are guided by the familiar principles that a statute is not invalid under the
Constitution because it might have gone farther than it did, that a legislature need not
strike at all evils at the same time, and that reform may take one step at a time, addressing
itself to the phase of the problem which seems most acute to the legislative mind.”97
Applying these principles, we conclude that 12BBAY permissibly distinguishes the
Bristol Bay watershed and its salmon fishery and does not violate the Alaska
Constitution’s prohibition on local or special legislation.
V. CONCLUSION
For the reasons discussed above, we AFFIRM the superior court’s summary
judgment order in favor of the State and the initiative sponsors.
96
Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d
1064, 1081 (Alaska 2009) (internal quotation marks omitted).
97
Id. (internal quotation marks omitted).
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