Hughes v. Treadwell
2015 Alas. LEXIS 10
Alaska2015Background
- Voter initiative "Bristol Bay Forever" (12BBAY) would add AS 38.05.142 requiring the legislature to grant final authorization (a duly enacted law finding no danger to the fishery) before any "large-scale metallic sulfide mining operation" (≥640 acres disturbance) in the Bristol Bay Fisheries Reserve watershed.
- The Lieutenant Governor certified the initiative after the Department of Law concluded it did not violate constitutional prohibitions on appropriation or local/special legislation.
- Hughes, joined by Alaska Miners Association and Council of Alaska Producers, sued to enjoin certification, arguing the initiative: (1) impermissibly appropriates public assets; (2) enacts local or special legislation; and (3) violates separation of powers.
- The superior court granted summary judgment for the State and initiative sponsors, finding 12BBAY neither an appropriation nor local/special legislation and not a clear separation-of-powers violation; this appeal followed.
- The Supreme Court of Alaska affirmed, focusing on whether the initiative (a) appropriates public assets (fish, waters, state lands) and (b) impermissibly enacts local or special legislation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does 12BBAY unlawfully appropriate public assets? | Hughes: 12BBAY effectively sets aside the Bristol Bay watershed and usurps legislative allocation power, forcing the legislature to make final allocation decisions. | State/Sponsors: It regulates resource use and expressly leaves allocation/appropriation authority with the legislature; not a "give-away." | The initiative is not an appropriation. It regulates a public asset but does not mandate an ascertainable, mandatory set‑aside or otherwise usurp plausible legislative choices. |
| Does 12BBAY enact forbidden local or special legislation? | Hughes: The initiative’s narrow geographic scope lacks legitimate justification and is therefore a prohibited local/special law. | State/Sponsors: The initiative bears a fair and substantial relationship to the legitimate purpose of protecting Bristol Bay salmon and waters; geography is justified. | The initiative is not local/special legislation; protecting Bristol Bay salmon is a legitimate purpose and the measure bears a fair and substantial relationship to that purpose. |
| Does 12BBAY improperly interfere with delegated administrative authority (separation of powers)? | Hughes: By returning final authority to the legislature for certain permits, the initiative encroaches on executive/admin functions. | State/Sponsors: The initiative requires a legislative finding but leaves permitting, regulation, and technical decisions to agencies; it does not clearly violate separation of powers. | The court found no clear separation-of-powers violation warranting pre-election invalidation (no reversible error on that ground). |
| Whether pre-election review was appropriate and how to construe initiatives | Hughes: Early invalidation was necessary because the initiative is clearly unconstitutional. | State/Sponsors: Ballot initiatives should be preserved where reasonably possible; pre-election review is limited to clear constitutional violations. | Court applied de novo review, liberal construction in favor of preserving initiatives, and declined to invalidate 12BBAY pre-election. |
Key Cases Cited
- McAlpine v. Univ. of Alaska, 762 P.2d 81 (Alaska 1988) (distinguished provisions that mandate transfer of a definite amount of state property from permissible regulatory restraints)
- City of Fairbanks v. Fairbanks Convention & Visitors Bureau, 818 P.2d 1153 (Alaska 1991) (initiative altering use of municipal tax revenue did not constitute an appropriation where it increased, not reduced, legislative discretion)
- Pullen v. Ulmer, 923 P.2d 54 (Alaska 1996) (initiative establishing user preferences for salmon harvest impermissibly appropriated wild salmon by limiting allocation discretion in shortages)
- Alaska Action Ctr. v. Municipality of Anchorage, 84 P.3d 989 (Alaska 2004) (invalidated initiative that designated specific public land use, thereby usurping legislative allocation role)
- Staudenmaier v. Municipality of Anchorage, 139 P.3d 1259 (Alaska 2006) (initiatives requiring sale of specified municipal utilities violate anti‑appropriation clause)
- Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 1064 (Alaska 2009) (initiative regulating mine discharges did not appropriate waters of the state; regulations permissible so long as they do not allocate an asset entirely to one group)
- Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 273 P.3d 1128 (Alaska 2012) (requiring voter approval for capital projects above a threshold impermissibly appropriated borough assets)
- Municipality of Anchorage v. Holleman, 321 P.3d 378 (Alaska 2014) (referendum repealing cost‑saving labor ordinance did not constitute an appropriation where effects on public resources were indirect and not an executable, definite set‑aside)