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Hughes v. Treadwell

Supreme Court of Alaska

January 30, 2015

RICHARD HUGHES, THE ALASKA MINERS ASSOCIATION, and THE COUNCIL OF ALASKA PRODUCERS, Appellants,
v.
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

Page 1122

Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge. Superior Court No. 4FA-13-01296 CI.

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.]

OPINION

Page 1123

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

Page 1124

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:

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 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 ...


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