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Pebble Ltd. Partnership ex rel. Pebble Mines Corp. v. Parnell

Supreme Court of Alaska

September 18, 2009

PEBBLE LIMITED PARTNERSHIP, acting through its General Partner, PEBBLE MINES CORPORATION, Appellant,
v.
Sean PARNELL, Lt. Governor of Alaska, the State of Alaska, Division of Elections, John H. Holman, Jack G. Hobson, and Luki Akelkok, Appellees. Council of Alaska Producers, Appellant,
v.
Sean Parnell, Lt. Governor of Alaska, the State of Alaska, Division of Elections, John H. Homan, Jack G. Hobson, and Luki Akelkok, Association of ANCSA Regional Corporations Presidents/CEO's Inc., Alaska Federation of Natives, and Pebble Limited Partnership, Appellees.

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Howard S. Trickey and Matthew Singer, Jermain Dunnagan & Owens, Anchorage, for Appellant Pebble Limited Partnership.

Thomas P. Amodio, Reeves Amodio LLC, Anchorage, for Appellant Council of Alaska Producers.

Michael Barnhill, Senior Assistant Attorney General and Talis J. Colberg, Attorney General, Juneau, for Appellee Sean Parnell, Lt. Governor of Alaska.

Jeffrey M. Feldman and Susan Orlansky, Feldman Orlansky & Sanders, Timothy McKeever and Scott M. Kendall, Holmes Weddle & Barcott, PC, Anchorage, for Appellees John H. Holman, Jack G. Hobson, and Luki Akelkok.

James D. Linxwiler and Michael S. McLaughlin, Guess & Rudd P.C., Anchorage, for Appellees Association of ANCSA Regional Corporation Presidents/CEO's, Inc. and Alaska Federation of Natives, Inc.

James E. Fosler, Fosler Law Group, Inc., Anchorage, for Amicus Curiae Alaska State Legislature.

Before : MATTHEWS, EASTAUGH, CARPENETI, and WINFREE, Justices.

OPINION

CARPENETI, Justice.

I. INTRODUCTION

The superior court ruled that a proposed initiative relating to the regulation of large scale metallic mineral mines was constitutionally and statutorily permissible and could appear on the ballot. The parties challenging the initiative appealed that ruling, asserting that the initiative (1) would violate the constitutional prohibition against initiatives that would appropriate public assets, (2) would enact constitutionally impermissible special legislation, and (3) is invalid because its summary and cost statements are defective. Shortly after oral argument we issued an order affirming the superior court and indicating that an opinion would follow explaining our reasons for affirmance. This is that opinion.

II. FACTS AND PROCEEDINGS

On April 25, 2007, the Lieutenant Governor of Alaska, Sean Parnell, was presented with an application for an initiative entitled

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" An Act to protect Alaska's clean water" (" 07WATR" ). After reviewing 07WATR, the Department of Law advised the lieutenant governor that he should not certify the initiative application. The Department of Law concluded that the initiative did not comply with the standards for initiatives laid out in AS 15.45.040 because it included " prohibited subjects" by making an appropriation of state assets through designation of the uses of public land and water. Relying on the Department of Law's advice, the lieutenant governor denied certification of initiative 07WATR.

On July 9, 2007, the sponsors of 07WATR filed suit against the lieutenant governor seeking a declaration that 07WATR met all statutory requirements for initiatives and seeking certification of the initiative. The parties filed cross-motions for summary judgment. On October 12, 2007, Superior Court Judge Fred Torrisi issued a decision and judgment concluding that 07WATR was not an appropriation and granting judgment to the sponsors. Consistent with his decision, Judge Torrisi ordered 07WATR certified, and ordered the lieutenant governor to " immediately prepare a sufficient number of sequentially numbered petitions to allow full circulation throughout the state." On January 14, 2008, the sponsors of the initiative submitted to the lieutenant governor a petition with over 30,000 signatures in support of 07WATR. The lieutenant governor then prepared a summary and cost statement for the 07WATR initiative.

On October 9, 2007, Before Judge Torrisi issued his decision on 07WATR, another application for an initiative with the title " An Act to protect Alaska's clean water" (" 07WTR3" ) was filed with the lieutenant governor. 07WTR3 reads:

THE ALASKA CLEAN WATER INITIATIVE (III)
FOR AN ACT ENTITLED
" An Act to protect Alaska's clean water."
BE IT ENACTED BY THE PEOPLE OF THE STATE OF ALASKA:
Section 1. Purpose. The purpose of this Act is to protect the statewide public interest in water quality by limiting the discharge or release of certain toxic pollutants on the land and waters of the state, and by establishing management standards and other regulatory prescriptions to ensure that Alaska's waterways, streams, rivers and lakes, an important public asset, are not adversely impacted by new large scale metallic mineral mining operations and that such prospective operations are appropriately regulated to assure no adverse effects on the state's clean waters.
Section 2. Regulatory standards affecting streams and waters.
(a) Notwithstanding any other provision of law, approvals, authorizations, licenses and permits for a prospective large scale metallic operation may not be granted or issued to a person or entity to allow activity that directly or indirectly:
(1) releases or discharges a toxic pollutant or pollutants, in a measurable amount that will effect human health or welfare or any stage of the life cycle of salmon, into, any surface or subsurface water, or tributary there to; or that
(2) stores or disposes of metallic mineral mining wastes, including overburden, waste rock, and tailings in a way that could result in the release or discharge of sulfuric acid, other acids, dissolved metals, toxic pollutants or other compounds thereof that will effect, directly or indirectly, surface or subsurface water or tributaries thereto used for human consumption or salmon spawning, rearing, migration or propagation.;
(b) This measure is intended to regulate the operations described herein to prevent the release or discharge of toxic pollutants and other chemicals into the waters of the state. This measure shall not result in the appropriation of lands or waters of the state in any fashion associated with new large scale mining operations. Use of the surface and subsurface waters and the land of the state for a prospective large scale metallic mining operation is not prohibited but is subject to regulation to ensure protection of human health, and welfare and conservation of other state resources

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which also rely on the waters and land of the state.
Section 3. Scope. Section 2 of this Act does not apply to existing large scale metallic mineral mining operations that have received all required federal, state, and local permits, authorizations, licenses, and approvals on or Before the effective date of this Act or to future operations of existing facilities at those sites.
Section 4. Savings Clause. It is the intention of the people of Alaska that each of the provisions of this Act or any portion thereof shall be independent of each of the others, so that the invalidity of any provision or portion thereof shall not affect the validity of the remaining provisions or portions thereof, and that all valid provisions and portions thereof shall be effective irrespective of the invalidity of any other provision or portion thereof. Upon enactment, the state shall take all actions necessary to ensure the maximum enforceability of this act.
Section 5. Definitions.
(a) " large scale metallic mineral mining operation" means a mining operation that extracts metallic minerals or deposits and utilizes or disturbs in excess of 640 acres of lands or waters, either alone or in combination with adjoining, related or concurrent mining activities or operations. This term includes all components of a mining project, including but not limited to:
(1) mining, processing, the treatment of ore in preparation for extraction of minerals, and waste or overburden storage or disposal;
(2) any construction or operation of facilities, roads, transmission lines, pipelines, separation facilities, and other support and ancillary facilities;
(3) any mining or treatment plant or equipment connected with the project, underground or on the surface, that contributes or may contribute to the extraction or treatment of metallic minerals or other mineral product; and
(4) any site of tunneling, shaft-sinking, quarrying, or excavation of rock for other purposes, including the construction of water or roadway tunnels, drains or underground sites for the housing of industrial plants or other facilities.
(b) " toxic pollutants" means those substances or substance combinations, including disease-causing agents, which after discharge and upon exposure, ingestion, inhalation, or assimilation into a human, fish or wildlife organism, either directly from the environment or indirectly by ingestion through food chains, will, on the basis of information available, cause death, disease, malignancy, behavioral abnormalities, abnormalities, or malfunctions in growth, development, behavior, or reproduction, cancer, genetic mutations, physiological malfunctions or physical or physiological abnormalities or deformations in such organisms or their offspring; " toxic pollutants" includes the following substances, and any other substance identified as a toxic pollutant under 33 U.S. C. 1317(a):
2-chlorophenol; 2,4-dichloraphenol; 2,4-dimethylphenol; acenaphthene; acrolein; acrylonitrile; Aldrin/Dieldrin; ammonia; antimony; arsenic; asbestos; benzene; benzidine; beryllium; cadmium; carbon tetrachloride; Chlordane; chlorinated benzenes; chlorinated naphthalene; chlorinated ethanes; chlorine; chloroalkyl ethers; chloroform; chlorophenols; chlorophenoxy herbicides; chromium; copper; cyanide; DDT; Demeton; dichlorobenzenes; dichlorobenzidine; dichloroethylenes; dichloropropane; dichloropropene; dinitrotoluene; diphenlyhydrazine; Endosulfan; Endrin; ethylbenzene; fluoranthene; Guthion; haloethers; halomethanes; Heptachlor; hexachlorobutadiene; hexachlorocyclohexane; hexachlorocyclopentadiene; isphorone; lead; Lindane; Malathion; mercury; methoxychlor; Mirex; napthalene; nickel; nitrobenzene; nitrophenols; nitrosamines; p-dioxin; Parathion; PCBs; pentachlorophenol; phenol; phthalate esters; polynuclear aromatic hydrocarbons; selenium; silver; sulfuric acid, tetrachloroethylene; thallium; toluene; Toxaphene; trichloroethylene; vinyl chloride; and zinc[.]

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The Department of Law reviewed 07WTR3 and advised the lieutenant governor to certify the initiative application. In making its recommendation, the Department of Law noted that " the differences between 07WTR3 and 07WATR highlight the line between impermissible appropriation and permissible regulation." The Department of Law also interpreted the word " effect" in section two to mean " adversely [a]ffect" [1] in order to make the initiative's substantive standards consistent with the initiative's stated purpose to " assure no adverse effects" on the state's water. In making the decision to construe the language of the initiative in this manner, the Department of Law noted that " [w]ere we to construe [‘ effect’ ] to mean ‘ any effect,’ we would have to find this standard an impermissible appropriation." Relying on the Department of Law's advice, the lieutenant governor certified initiative 07WTR3.

The lieutenant governor prepared the following summary for the 07WTR3 initiative petition:

BILL PROVIDING FOR REGULATION OF WATER QUALITY
This bill imposes two water quality standards on new large scale metallic mineral mining operations in Alaska. The first standard does not allow such a mining operation to release into water a toxic pollutant that will adversely affect human health or the life cycle of salmon. The second standard does not allow such a mining operation to store mining wastes and tailings that could release sulfuric acid, other acids, dissolved metals or other toxic pollutants that could adversely affect water that is used by humans or by salmon. The bill defines a large scale metallic mineral mining operation to mean a metallic mineral mining operation that is in excess of 640 acres in size. The bill defines toxic pollutants to include substances that will cause death and disease in humans and fish, and includes a list of substances identified as toxic pollutants under federal law. Should this initiative become law?

The cost statement prepared by the lieutenant governor for 07WTR3 stated that, because " [t]his initiative appears to propose language that does not differ significantly from existing water quality standards," " there will not be significant fiscal impact-either revenues or costs-as a result of this initiative." On January 14, 2008, the sponsors of the initiative submitted to the lieutenant governor a petition with over 30,000 signatures in support of 07WTR3.

On November 8, 2007, the Council of Alaska Producers (" the Council" ) filed a complaint for declaratory and injunctive relief naming the lieutenant governor and the Division of Elections and seeking to enjoin both 07WATR and 07WTR3 from being placed on the ballot. The Council alleged that the two initiatives violated constitutional restrictions on the use of the initiative by making an appropriation and by enacting special legislation. The Council further alleged that the summaries and cost statements for both initiatives were inaccurate and misleading. On November 21, 2007, the Association of ANCSA Regional Corporation Presidents/CEO's, Inc. and the Alaska Federation of Natives, Inc. (collectively " the Association" ) filed a complaint for declaratory and injunctive relief naming the lieutenant governor and the Division of Elections and seeking to enjoin both 07WATR and 07WTR3 from being placed on the ballot. The Association made similar allegations to those made by the Council. On December 4, 2007, the Pebble Limited Partnership, acting through its general partner Pebble Mines Corporation (" Pebble" ), filed a complaint in intervention making allegations similar to those made by the Council and the Association. The sponsors of the two initiatives also moved to intervene in the action. On December 6, 2007, the superior court consolidated the Council's action with that brought by the Association. The superior court also granted Pebble's and the sponsors' requests to intervene, and both Pebble and the sponsors were joined as parties.

On January 4, 2008, the Council, Pebble, and the Association each moved separately for summary judgment. On January 18, 2008, the sponsors and the lieutenant governor

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each cross-moved for summary judgment.

On February 28, 2008, Superior Court Judge Douglas L. Blankenship issued a decision concluding in part that 07WATR would make an impermissible appropriation and was therefore invalid and could not be placed on the ballot, and that 07WTR3 was a permissible regulatory measure that would not make an appropriation and therefore could be placed on the ballot. In concluding that 07WTR3 would not make an appropriation, Judge Blankenship adopted the approach of the sponsors and the state and construed the references to " effects" in section two to mean " adversely affects." Judge Blankenship issued final judgment on March 12, 2008, finding that (1) " 07WTR3 is not an improper appropriation," (2) " 07WATR and 07WTR3 are not local or special legislation," (3) " [t]he subject matter of 07WTR3 is proper for an initiative," (4) " 07WTR3 does not constitute an unlawful amendment of the Alaska Constitution," and (5) " [t]he bill summary and cost statement appearing on the 07WTR3 initiative petitions are not defective."

The sponsors appealed the portion of Judge Blankenship's decision that concluded that 07WATR would make a constitutionally impermissible appropriation. The Council and Pebble appealed portions of Judge Blankenship's decision construing 07WTR3 and concluding that 07WTR3 would not make a constitutionally impermissible appropriation, would not enact constitutionally impermissible special legislation, and that the summary and cost statement were impartial and accurate. The Association did not appeal any portion of Judge Blankenship's decision, but did respond to the sponsors' appeal. The lieutenant ...


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