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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Pebble Limited Partnership v. Parnell (09/18/2009) sp-6415
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, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| PEBBLE LIMITED PARTNERSHIP, | ) |
| acting through its General Partner, | ) |
| PEBBLE MINES CORPORATION, | ) |
| ) Supreme Court No. S- 13059 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 4FA-07-02696 CI |
| ) | |
| 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, )
) Supreme Court No. S-13060
Appellant, ) (Consolidated)
)
v. )
)
SEAN PARNELL, LT. GOVERNOR )
OF ALASKA, the STATE OF )
ALASKA, DIVISION OF )
ELECTIONS, JOHN H. HOMAN, ) OPINION
JACK G. HOBSON, and LUKI )
AKELKOK, ASSOCIATION OF )
ANCSA REGIONAL ) No. 6415 - September 18, 2009
CORPORATIONS PRESIDENTS/ )
CEOS INC., ALASKA )
FEDERATION OF NATIVES, and )
PEBBLE LIMITED PARTNERSHIP, )
)
Appellees. )
_______________________________ )
Appeal from the Superior Court of the State
of Alaska, Fourth Judicial District,
Fairbanks, Douglas L. Blankenship, Judge.
Appearances: 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/CEOs, 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. [Fabe, Chief Justice, not
participating.]
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 An Act to protect Alaskas 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 Laws 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 Alaskas 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 Alaskas 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 Alaskas 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
states 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 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[.]
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]ffect1 in order to make the initiatives substantive standards
consistent with the initiatives stated purpose to assure no
adverse effects on the states 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 Laws
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/CEOs, 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
Councils action with that brought by the Association. The
superior court also granted Pebbles 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 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 Blankenships
decision that concluded that 07WATR would make a constitutionally
impermissible appropriation. The Council and Pebble appealed
portions of Judge Blankenships 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 Blankenships decision, but did
respond to the sponsors appeal. The lieutenant governor appealed
Judge Torrisis decision on 07WATR. We granted consolidation of
all four appeals. The legislature has submitted a brief amicus
curiae.
On June 6, 2008, the five parties filed a joint motion
to dismiss the sponsors appeal of Judge Blankenships decision, to
dismiss the states appeal of Judge Torrisis decision, to vacate
Judge Torrisis decision, to issue an order dismissing with
prejudice the sponsors complaint in the original 07WATR lawsuit,
to issue an order that all parties to the dismissed cases will
bear their own costs and attorneys fees, and to issue an order
substituting the named parties in the sponsors appeal. We
granted the joint motion in full on June 9, 2008. As a result,
the only appeal remaining before us is the appeal by the Council
and Pebble of those portions of Judge Blankenships 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 are impartial and accurate.2
We heard oral argument on June 16, 2008 and issued a
dispositive order on July 3.3
III. STANDARD OF REVIEW
I. We review a superior courts decision on summary judgment de
novo, drawing all inferences in favor of, and viewing the facts
in the record in the light most favorable to, the non-moving
party.4 We review questions of law, including the
constitutionality of a ballot initiative, using our independent
judgment, adopting the rule of law that is most persuasive in
light of precedent, reason, and policy.5 The interpretation of
the constitutional term appropriation is a question of law to
which we apply our independent judgment.6 When reviewing
initiatives, we will construe voter initiatives broadly so as to
preserve them whenever possible. However, initiatives 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.7 We use a
deferential standard of review for challenges to the adequacy of
a petition summary.8 We apply a deferential standard of review
for challenges to the adequacy of a petition summary and will
uphold a summary unless we cannot reasonably conclude that it is
impartial and accurate.9 Those attacking the summary bear the
burden to demonstrate that it is biased or misleading.10
IV. DISCUSSION
Article XI, section 1 of the Alaska Constitution grants
to the people the power to propose and enact laws by initiative.
This power is not without limitations, however, as article XI,
section 7 of the Alaska Constitution restricts initiatives that
make or repeal appropriations or enact local or special
legislation. Additionally, the constitution and statutory law
describe the procedural steps that must be followed in order for
an initiative to be placed on the ballot. Here, the opponents of
the initiative argue that 07WTR3 would appropriate public assets
and would enact local or special legislation, and that the
summary and cost statement for 07WTR3 are defective.
A. The Superior Court Correctly Concluded that Initiative
07WTR3 Would Not Appropriate a Public Asset.
A. Article XI, section 7 of the Alaska Constitution prohibits
initiatives that make . . . appropriations. The Council and
Pebble assert that 07WTR3 would make a constitutionally
impermissible appropriation by allocating or designating the use
of state assets. Judge Blankenship concluded that 07WTR3 would
not make a constitutionally impermissible appropriation. We use
a two-part inquiry in such cases.11 First, we determine whether
the initiative deals with a public asset.12 Second, we determine
whether the initiative would appropriate that asset.13
1. Initiative 07WTR3 deals with a public asset.
Initiative 07WTR3 directly concerns the use of public
land and water by large scale metallic mineral (LSMM) mines.
Initiative 07WTR3 seeks 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. We have
previously determined that public land,14 public revenue,15 a
municipally-owned utility,16 and wild salmon17 are all public
assets that cannot be appropriated by initiative. We have not,
however, had an opportunity to determine whether waters in the
form of waterways, streams, rivers and lakes are a public asset.
In Anchorage Citizens for Taxi Reform v. Municipality
of Anchorage,18 we considered two criteria, either one of which,
if satisfied, would qualify taxicab permits as a public asset.19
First, we considered whether the municipality own[ed] the
underlying resource the permits authorized holders to take.20
Second, we considered whether issuing the permits served a
regulatory rather than a revenue-raising function.21 In that
case, the taxicab permits at issue satisfied neither criterion
and we concluded they were not public assets. In this case, in
contrast, the waters of the state qualify as a public asset under
either criterion.
First, the state has a property-like interest in the
waters of the state.22 In holding that salmon are a public asset
in Pullen v. Ulmer, we relied on article VIII of the Alaska
Constitution.23 We held that common law principles incorporated
in the common use clause impose upon the state a trust duty to
manage the fish, wildlife and water resources of the state for
the benefit of all the people.24 We reasoned that the public
trust responsibilities imposed on the state by the provisions of
article VIII of our constitution compel the conclusion that fish
occurring in their natural state are property of the state for
purposes of carrying out its trust responsibilities.25 Because
public trust responsibilities are sufficient to create a property-
like interest in a natural resource, the waters of the state
qualify as a public asset under the public ownership criterion
identified in Anchorage Citizens for Taxi Reform.
Second, the waters of the state provide a revenue-
raising function. In Pullen, we noted that if the states salmon
population precipitously declines, the fishing industry would be
devastated, causing . . . harm to Alaskas economy and revenue
base, and that [t]he state benefits from the harvest of salmon
through the collection of taxes imposed on business enterprises
engaged in the fishery and license fees imposed on sport,
personal use, and commercial fisheries.26 This same logic
certainly applies to the quality of the states waters, with harm
to these waters having the potential to at the very least
devastate Alaskas tourism and fishing industries and
significantly reduce revenues raised from related taxes and
licenses. The waters of the state, therefore, qualify as a
public asset due to their revenue-raising function under the test
described in Anchorage Citizens for Taxi Reform.27
Because the state has a property-like interest in the
waters of the state, and because the waters of the state play a
revenue-raising function for the state, the waters of the state
are a public asset under either factor of the Anchorage Citizens
for Taxi Reform test.28 Accordingly, both the land and waters of
the state are public assets for the purposes of constitutional
appropriations analysis, and 07WTR3 deals with public assets.
2. Initiative 07WTR3 would not appropriate those
assets.
On the second part of the inquiry, whether the
initiative would appropriate those assets, we look primarily to
the two core objectives of the constitutional prohibition against
initiatives that would make an appropriation.29 The first
objective is to prevent give-away programs that appeal to the
self-interest of voters and endanger the state treasury.30 The
second objective is 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. 31 Our analysis of the second objective also
includes consideration of whether 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.32
No party argues that 07WTR3 is a give-away program.33
We agree that 07WTR3 would not give away public assets. No
provision of the initiative targets any particular group or
person or entity . . . to receive state money or property, nor is
there any indication that by passing this initiative, the voters
would be voting themselves money [or property].34 The initiative
merely seeks to preserve the status quo by maintaining water
quality at levels suitable for consumption by humans and for use
as habitat by salmon.
The primary question before us, therefore, is whether
the initiative narrows the legislatures range of freedom to make
allocation decisions in a manner sufficient to render the
initiative an appropriation.35 To answer this question, we must
interpret the meaning of the initiative.
Judge Blankenships conclusion that 07WTR3 would not
make a constitutionally impermissible appropriation derived from
his decision to construe the language of the initiative by
applying language from section one of the initiative to the
substantive restrictions in section two. In distinguishing
07WTR3 from 07WATR, Judge Blankenship found 07WTR3 to be a
permissible management or regulatory policy. The Council and
Pebble challenge this construction of the initiative and assert
that, by its plain language, 07WTR3 would prevent any discharge
or release of toxic pollutants into state waters and is therefore
as proscriptive as 07WATR. The Council and Pebble then argue
that under this interpretation the plain language of 07WTR3 would
make a constitutionally impermissible appropriation for the same
reasons Judge Blankenship cited in concluding that 07WATR would
make an appropriation.
a. The superior court did not err in construing
effect to mean adversely affect in
interpreting 07WTR3.
In order to determine whether initiative 07WTR3 would
make a constitutionally impermissible appropriation, we must
first determine which interpretation of the language of the
initiative is correct.
We have held that the duty of a court in conducting a
preelection review of an initiative is similar to the courts duty
when reviewing an enacted law.36 When interpreting a statute or
municipal ordinance, we employ a sliding scale approach under
which [t]he plainer the statutory language is, the more
convincing the evidence of contrary legislative purpose or intent
must be.37 Whenever possible, we will construe a statute in light
of its purpose,38 and will interpret each part or section of a
statute with every other part or section, so as to create a
harmonious whole.39 And we have sought to preserve the peoples
right to be heard through the initiative process wherever
possible:
In reviewing an initiative prior to
submission to the people, the requirements of
the constitutional and statutory provisions
pertaining to the use of initiatives should
be liberally construed so that the people
(are) permitted to vote and express their
will on the proposed legislation . . . . When
one construction of an initiative would
involve serious constitutional difficulties,
that construction should be rejected if an
alternative interpretation would render the
initiative constitutionally permissible.40
In construing the initiatives use of effect in section
two to mean adversely affect, Judge Blankenship looked to section
one of the initiative which states that the purpose of the
initiative is to insure that the states waters are not adversely
impacted by new [LSMM] mining operations and that such
prospective operations are appropriately regulated to assure no
adverse effects on the states clean waters. Although Judge
Blankenship did not specifically comment on the ambiguity of the
language of section two, he did observe that [t]o infer that the
initiative prohibits beneficial effects or neutral effects is at
odds with common sense and the purpose of the initiative. We
agree with Judge Blankenship and conclude that his interpretation
of the initiative is the interpretation most consistent with the
initiatives stated purpose.
When reviewing a ballot initiative that has been passed
by the voters, we look to any published arguments made in support
or opposition to determine what meaning voters may have attached
to the initiative.41 This initiative has not yet been put before
the voters, but over 30,000 voters signed the petition to place
initiative 07WTR3 on the ballot. The summary statement provided
by the lieutenant governor for this petition stated that [t]he
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, and that [t]he 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.
(Emphasis added.) When considered along with the language of
07WTR3s purpose statement in section one of the initiative, this
language from the summary statement strongly suggests that the
voters who signed the petition to place the initiative on the
ballot understood the initiative to prohibit only those
discharges that would adversely affect humans, salmon, and those
waters used by humans or salmon.
Finally, construing the language of section two of the
initiative to prohibit only adverse effects preserves the
constitutionality of the initiative. Quoting Anchorage Citizens
for Taxi Reform, Judge Blankenship correctly observed that we
will construe a voter initiative broadly so as to preserve [it]
whenever possible.42
Because the conflict between the language of sections
one and two of the initiative can be resolved in a manner that is
consistent with the purpose of the initiative and that is most
likely to preserve the constitutionality of the initiative, we
hold that Judge Blankenship did not err in concluding that 07WTR3
prohibits only adverse effects.
b. The superior court did not err in concluding
that 07WTR3 would not make an appropriation.
All of the parties agree that if section two of 07WTR3
is read to preclude 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, then
07WTR3 would not make an appropriation. We concur. We have
previously noted that natural resource management is an
appropriate subject for a public initiative.43 In holding that
the initiative process was not clearly inapplicable to an
initiative banning the use of wolf snares, we noted that the
legislative history of the drafting of the Alaska Constitution
and the language of the constitution itself evidences the
delegates intent that natural resource issues would be subject to
the initiative.44
Further, 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.45 In holding that an initiative that required
the Board of Fisheries to reserve a priority of wild salmon stock
for personal, sport, and subsistence fisheries before allocating
any stock for commercial fisheries was an impermissible
appropriation, we distinguished the initiative as written from a
presumptively constitutional hypothetical initiative that would
simply amend a series of general legislative criteria to add more
specific ones to guide the Board of Fisheries in its future
allocation decisions.46 Here, as Judge Blankenship observed,
07WTR3 leaves to the legislature, the Department of Environmental
Conservation, and the Department of Natural Resources the
discretion to determine what amounts of specific toxic pollutants
may or may not be discharged at a mining site. Initiative 07WTR3
as interpreted to prohibit only discharges that adversely affect
humans, salmon, and waters used for human consumption and as
salmon habitat therefore prohibits harm to public assets while
permitting the use of public assets and exhibiting no explicit
preference among potential users.
We have long recognized that [t]he general rule is that
a court should not determine the constitutionality of an
initiative unless and until it is enacted.47 This is because
[t]he rule against pre-election review is a prudential one,
steeped in traditional policies recognizing the need to avoid
unnecessary litigation, to uphold the peoples right to initiate
laws directly, and to check the power of individual officials to
keep the electorates voice from being heard.48 There are only two
exceptions to this rule: First, where the initiative is
challenged on the basis that it does not comply with the state
constitutional and statutory provisions regulating initiatives
as in this case courts are empowered to conduct pre-election
review.49 Second, courts are empowered to conduct pre-election
review of initiatives where the initiative is clearly
unconstitutional or clearly unlawful.50 There is nothing clearly
unconstitutional or clearly unlawful about regulating the
discharge of toxic materials into state waters.
B. 07WTR3 Would Not Enact Special Legislation.
Pebble, the Council, and the Association argue that
07WTR3 is special legislation and therefore should not be placed
on the ballot. The lieutenant governor and the sponsors ask us
to uphold the superior courts determination that 07WTR3 would not
enact special legislation.
Article XI, section 7 of the Alaska Constitution
provides in part that [t]he initiative shall not be used to . . .
enact local or special legislation. That constitutional
provision is echoed in AS 15.45.010: The law-making powers
assigned to the legislature may be exercised by the people
through the initiative. However, an initiative may not be
proposed to . . . enact local or special legislation.
This courts benchmark special legislation case is
Boucher v. Engstrom.51 In Boucher, Lieutenant Governor H. A.
Boucher appealed a superior court decision that enjoined an
initiative from being placed on the ballot.52 The superior court
had found that the initiative, which sought to relocate Alaskas
capital from Juneau to any Alaska site west of meridian 141 west
longitude excluding Anchorage or Fairbanks, was special
legislation and therefore unconstitutional under article XI,
section 7 of the Alaska Constitution.53 The superior court based
this ruling on the fact that Anchorage and Fairbanks were
excluded as possible relocation sites.54 We reversed the ruling
that the initiative was special legislation.
Boucher, considered in light of the discussion at the
Alaska Constitutional Convention, establishes a two-stage
analysis for determining whether proposed legislation is local or
special legislation barred by article XI, section 7. The first
stage is a threshold inquiry as to whether the proposed
legislation is of general, statewide applicability.55 In Boucher,
we looked to the intent of the delegates to the constitutional
convention regarding special legislation. We noted that the
Report of the Committee on Direct Legislation, Amendment and
Revision56 stated that special laws are of interest to only one
group of people or people in only one portion of the state.57
Thus, if we find that a proposed initiative is legislation of
statewide application, we will hold that the initiative would not
enact special legislation and it is not necessary to inquire
further.58
However, if we determine that the proposed initiative
is not of statewide application, we then move on to a second
inquiry. In this second stage, we determine the relationship
between the narrow focus of the proposed legislation and the
purpose of the proposed legislation. As we stated in Boucher,
[l]egislation, whether enacted by the legislature or by the
initiative, need not operate evenly on all parts of the state to
avoid being classified as local or special.59 Therefore, we
address the reasonableness of the regulation or the
classification of the subject matter.60 We analogized this second
inquiry to the rational basis review we employed in equal
protection cases at that time.61
In State v. Lewis,62 we updated this standard: the
inquiry in this second stage assesses whether the legislation
bears a fair and substantial relationship to legitimate purposes.63
In Boucher, we held that an initiative was not to be
classified as special or local legislation merely because it
operated on only a limited number of geographical areas, rather
than being widespread in its operation throughout the state. 64
Rather, such a finding of limited applicability meant that the
inquiry must move to a second stage, in which the reasonableness
of the limited scope was to be scrutinized: the test of
constitutionality of the subject initiative is not whether
Anchorage and Fairbanks were treated differently, but rather
whether there is a reasonable basis for the disparity in
treatment.65 In the end, we concluded that [t]he initiatives
exclusion of Anchorage and Fairbanks was not arbitrary, but was
premised on the view that the new capital should be a planned
capital and one that should not be located in the relatively
heavily urbanized areas of Anchorage and Fairbanks.66
In State v. Lewis, we considered whether legislation
enacting a three-way exchange of land between the State of
Alaska, the United States Government, and a Native corporation
violated the prohibition against enactment of local and special
acts under article II, section 19 of the Alaska constitution.67
Plaintiffs argued that the statute violated the constitutional
prohibition on local and special legislation because it affected
only a limited geographic region of the state.68 Because the
statute did in fact deal with only a limited region, we
scrutinized the reasonableness of that limited scope, finding the
statute valid because it 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]. The
conflict between [the Native corporation] and
the government concerning the adequacy of
withdrawals for Native selection implicated
both future state selections and existing
state patents. Clouds on title could have
resulted in protracted litigation and
impaired effective planning for a variety of
state needs.[69]
Accordingly, we found a fair and substantial
relationship between permissible legislative purposes and the
means used to advance them.70
We applied this two-stage inquiry again in Baxley v.
State,71 where we considered the constitutionality of a statute
that allowed for the modification of four oil and gas leases in
the Northstar Oil Field.72 We found that the statute focused on a
single entity, and thus failed the first inquiry: It was not a
law of general or statewide application.73 We then proceeded to
the second inquiry, and found that because the specific leases in
question were substantially different from any other oil and gas
leases, the statutes modification of these specific leases fairly
and substantially relate[d] to legitimate state purposes.74 Thus,
because the statute satisfied the second inquiry the legislation
was not special legislation.75
Turning to 07WTR3, we look first to whether the subject
matter is of statewide application. We find that it is. The
initiative proposes new regulation on pollutant discharges from
new large scale metallic mining operations. It defines large
scale metallic mining operation as 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. It is not by its terms limited to a
particular area or community of the state, but would apply to any
such mine anywhere in the state.
Pebble fails to present any evidence to support its
assertion that this initiative is not of statewide application.
Pebble contends that the initiative applies only to the Pebble
and Donlin Creek mines. However, 07WTR3 does not specifically
relate only to the Pebble and Donlin Creek mines. Indeed, the
Council and the Association intervened in this matter because
they believe that 07WTR3 has greater implications beyond the
Pebble and Donlin Creek mines. Although the Pebble and Donlin
Creek mines may be the only proposed mines currently affected by
07WTR3, the language of the initiative is sufficiently broad that
it would apply to any new LSMM mines.
Since 07WTR3 proposes legislation of statewide
application, it is not necessary for our decision here to
determine whether it has a fair and substantial relationship to
legitimate state purposes. We nevertheless note that if the
initiative were evaluated under the test, it would pass muster.
The initiatives stated purpose 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.
Like the location of the state capital in Boucher,76 the
issue of water quality affects all Alaskans; declines in water
quality affect the availability of water for uses including human
consumption, agriculture, and habitat for fish and wildlife. And
there is a strong statewide interest in protecting the fishing
industry. As we establish above in part IV.A.1., public land and
water are public assets in which the state has an interest. And
this initiative serves a much broader interest than that of the
land exchange at issue in Lewis, which we found to be of
statewide interest even though it only directly affected a
particular land deal.
Pebble also asserts that the initiative fails the fair
and substantial relationship test because it is grossly
underinclusive and there is no good reason for this
underinclusive classification. Pebble argues that the initiative
is impermissibly underinclusive because it treats (1) existing
mines different[ly] from prospective mines, (2) non-metallic
mines different[ly] from metallic mines, (3) 640 acre mines
different[ly] from 639 acre mines, and (4) mines different[ly]
from all other potential polluters.
However, we agree with the lieutenant governor that
legislatures routinely must draw lines and create
classifications. As the United States Supreme Court has noted 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. 77 Treating existing uses differently from new uses is a
fairly routine legislative practice known as grandfathering that
can be readily justified in terms of enhancing compliance,
avoiding economic disruption, and protecting settled expectations
and investments. Thus, we have noted in the equal protection
context that [a]cts conferring grandfather rights have generally
withstood equal protection challenges.78 As for distinguishing
metallic from non-metallic mines, the sponsors point out that
there is a policy basis for paying special attention to metallic
mining because it poses its own characteristic risks, such as the
high toxicity of metallic discharges for fish populations. The
National Research Council has noted that different types of
exploration and different types of mining and processing present
different levels of environmental risk and require differing
regulatory approaches.79 We do not consider it arbitrary to draw
a line based on mine size either. Legislation often draws lines
based on size or quantity (such as income tax brackets). It
stands to reason that larger mines pose greater pollution risks
than smaller ones and might be subject to greater regulation.
Nor is it unconstitutional to single out the mining industry in a
regulatory initiative. The fact that the initiative is limited
to a particular industry makes it no more constitutionally
suspect than Alaskas Title 27, which also singles out mining, or
Title 17, which singles out food and drugs.
Because on its face 07WTR3 is of general statewide
applicability, we conclude that it is not prohibited special or
local legislation. Although this alone is determinative on the
question of whether it is barred under article XI, section 7, we
also conclude that the initiatives provisions bear a fair and
substantial relationship to legitimate state purposes.
C. The Superior Court Correctly Concluded that the Summary
and Cost Statement Are Not Defective.
The Alaska Constitution and Alaska statutes require the
lieutenant governor, after certifying an application for an
initiative, to prepare a true and impartial summary of the
proposed initiative and an estimate of the cost to the state of
implementing the proposed law. Judge Blankenship concluded that
the lieutenant governors summary and cost statement for 07WTR3
satisfied these requirements. The Council contends that the
court erred in reaching that conclusion because the summary and
cost statements were inaccurate, incomplete, and misleading. We
disagree.
1. The summary statement
The superior court concluded that the ballot and
petition summary for 07WTR3 is a fair, true, neutral, and
impartial explanation of the main features of the initiatives
contents. The Council argues that Judge Blankenships conclusion
is in error because the summary is inaccurate and misleading.
Specifically, the Council asserts that the summary states that
the provisions of 07WTR3 apply only to new LSMM mining
operations, when it in fact applies to existing LSMM mining
operations that either (1) require any additional permit, or
permit renewal or amendment, or (2) build an additional facility
or expand operations. The Council also argues that the summary
states that [the initiative] includes the same list of toxic
pollutants as found in federal law, when in fact [the initiative]
adds an additional substance, sulfuric acid, that is not on the
federal list. The sponsors respond by arguing that the Council
waived its specific arguments about the deficiency of the summary
statement by not raising them in the superior court. The
sponsors further assert that even if the Council did not waive
its arguments, (1) the Councils argument that the initiative
applies to existing LSMM operations lacks merit because the
Council has not shown that specific existing mines will be
subject to 07WTR3, and (2) the Councils argument that the
summarys description of toxic pollutants is misleading lacks
merit because the summary explicitly mentions that the initiative
prohibits storing materials that could release sulfuric acid.
Article XI, section 3 of the Alaska Constitution
provides that after certification of an initiative application, a
petition containing a summary of the subject matter shall be
prepared by the lieutenant governor for circulation by the
sponsors. Alaska Statute 15.45.090(a)(2) requires that the
lieutenant governors summary of the petition be an impartial
summary of the subject matter of the bill. Alaska Statute
15.45.180(a) likewise requires that the actual ballot contain a
true and impartial summary of the proposed law.80
We explained in Alaskans for Efficient Government, Inc.
v. State81 that the basic purpose of the ballot summary is to
enable voters to reach informed and intelligent decisions on how
to cast their ballots.82 A summary should be complete enough to
convey an intelligible idea of the scope and import of the
proposed law and ought to be free from any misleading tendency,
whether of amplification, of omission, or of fallacy.83 The
summary need not recite every detail of the proposed measure,84
but if the information would give the elector serious grounds for
reflection it is not a mere detail, and it must be disclosed.85
We apply a deferential standard of review for
challenges to the adequacy of a lieutenant governors petition
summary and will uphold a summary unless we cannot reasonably
conclude that it is impartial and accurate.86 Those attacking the
summary bear the burden to demonstrate that it is biased or
misleading.87
Here, the lieutenant governors summary for 07WTR3
states:
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 acids, 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.
Because the Council did not raise the specific
arguments at the superior court level that (1) the summary is
misleading for failing to indicate that it applies to certain
existing LSMM mining operations, or (2) the summary is misleading
in its description of toxic pollutants, it waived these new
arguments.88
Even if the Council had not waived its arguments by
failing to present them to the superior court, the arguments
would still be without merit. The Council alleges that the
summary is defective because (1) it fails to adequately describe
all the mining operations to which it applies, and (2) its
description of prohibited toxic pollutants is misleading. We
deal with each argument in turn.
In regard to the first argument, the summary states
that the initiatives water quality standards apply to new large
scale metallic mineral mining operations. (Emphasis added.) This
statement provides an intelligible idea of the scope and import
of the initiative, which explicitly states that it 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. (Emphasis added.) The brevity
required for a summary prevents a more specific and detailed
description of the initiatives scope than that provided by the
lieutenant governor. As we have stated, [t]he summary need not
recite every detail of the proposed measure.89 Here, the summary
adequately discloses the important details of the initiative.
Thus, the Council fails to meet its burden of showing that the
summary is misleading based on its description of the initiatives
scope.
The Councils second argument is that the summarys
description of toxic pollutants is misleading. Even if it had
not been waived, this argument would likewise be without merit.
The Councils argument that the summary misleads voters by not
mentioning that sulfuric acid was added to the initiatives list
of toxic pollutants ignores the explicit statement in the summary
that the initiative does not allow . . . a [new] mining operation
to store mining wastes and tailings that could release sulfuric
acid . . . . Because the summary is explicit in its inclusion of
sulfuric acid as a prohibited toxic pollutant that could
adversely affect water that is used by humans or salmon, it is
not misleading.
The Council fails to meet its burden of showing the
inadequacy of the summary prepared by the lieutenant governor for
07WTR3. The summary provides an accurate depiction of the scope
and substance of the initiative. Thus, the superior court
correctly concluded that it was a fair, true, neutral, and
impartial explanation of the main features of the initiatives
contents.
2. The cost statement
The superior court concluded that the cost statement
for 07WTR3 is impartial and accurate to enable voters to make an
informed decision. The court explained that although new
regulations probably will be promulgated to implement [the
initiative], these regulations may be little different than
current water quality standards, and [t]his suggests that the
state would incur few additional costs to implement the program
and mining companies would be able to obtain the necessary
permits to operate. The Council argues that the cost statement
for 07WTR3 is defective because it fails to consider the cost of
developing and adopting regulations that will be necessary to
implement the measure. The Council also asserts that [t]here is
. . . likely to be substantial cost to the State in defending, in
court, any regulations which it adopts. The sponsors respond
that the Council waived its arguments about the cost statement
because it did not make the same specific arguments when
challenging the accuracy of the cost statement in the superior
court. The sponsors also argue that the cost statement is valid
because even if state employees do need to review existing
regulations and develop and implement some new ones, DNRs
estimate of no significant fiscal impact is wholly reasonable.
Finally, the sponsors assert that [j]udicial review of the
Lieutenant Governors cost estimate should be extremely
deferential.
Alaska Statute 15.45.090(a)(4) states that each
petition must contain an estimate of the cost to the state of
implementing the proposed law. Although there is no Alaska case
law interpreting the cost statement provision, other state courts
have held that review of an initiative or referendums cost
statement should be deferential.90
The Alaska Department of Natural Resources (DNR)
prepared the following cost statement for 07WTR3:
This initiative appears to propose language
that does not differ significantly from
existing water quality standards. Therefore,
the department does not foresee any
significant impact on the department or on
activities on state-owned land. As a result,
there will not be significant fiscal impact
either revenues or costs as a result of this
initiative.
The sponsors are correct that the Council waived its
argument about the cost of promulgating regulations because the
Council failed to make this argument to the superior court.91 In
its motion for summary judgment, the Council merely argued that
the cost statement was inadequate because it failed to estimate
the cost of [defending against] takings claims and failed to
recognize the potential loss in State revenues that would result
from the implementation of the measure. The potential loss in
revenues referred to the speculative loss of revenues if the
initiative ended all LSMM mining. Because the initiative would
not end all LSMM mining and the cost of defending takings claims
is a purely speculative cost that assumes future lawsuits, the
superior court was correct to conclude that the cost statement
was valid. The new argument made by the Council in its appellate
brief that the DNR misstated the cost of adopting new regulations
is waived because the Council failed to raise the argument in the
court below.92
Even if the Council had not waived its argument that
the cost statement is inadequate because it omits the cost of
adopting new regulations, that argument would still be without
merit. The cost statement statute merely requires an estimate of
the cost of implementing the proposed law. Thus, the cost
statement need not document every conceivable cost associated
with the implementation of the law. In addition, the DNR has
substantially more knowledge about the relative costs of
developing necessary regulations than the parties or this court,
particularly in this instance, where there is no evidence before
us of the costs of implementing the regulations that would be
required by 07WTR3. Thus, we defer to the DNRs expertise in this
area and uphold its reasonable conclusion that there will not be
any substantial fiscal impact as a result of the initiative.
The Council did not waive its second argument
challenging the cost statement that the cost statement omits
costs associated with legal challenges to regulations that the
initiative will require because it made a similar argument at
the superior court level. Nonetheless, this argument is without
merit. Although it is possible that companies planning to begin
new mining operations may bring legal challenges against the
state based on the initiative, those potential lawsuits and the
costs associated with them are purely speculative. There is no
authority for the assertion that the estimated costs of defending
potential lawsuits involving the initiative must be described in
the cost statement. Because such costs are purely speculative,
it would be impracticable to provide an estimate of how much they
would be. Therefore, the superior court reasonably concluded
that the cost statement is not inaccurate on this ground.
In sum, the cost statement provides an accurate
estimate of the likely insignificant costs associated with
implementation of the initiative. Thus, we affirm the superior
courts determination that the cost statement is not defective.
V. CONCLUSION
For the reasons set out in this opinion, in our order
of July 3, 2008 we AFFIRMED the superior courts interpretation of
07WTR3 and its conclusions that the initiative would not make a
constitutionally impermissible appropriation and would not enact
constitutionally impermissible special legislation, and that the
initiatives summary and cost statement are not deficient. And
because 07WTR3 does not appropriate a public asset, because it is
not special legislation, and because its summary and cost
statement are not defective, we AFFIRMED the decision of the
superior court in all aspects.
APPENDIX A
THE SUPREME COURT OF THE STATE OF ALASKA
Pebble Limited Partnership, )
) Supreme Court No. S-13059
Appellant, )
) Order
v. ) Affirming Superior Court
)
Sean Parnell, Lt. Governor, et al., )
)
Appellees. )
)
Council of Alaska Producers, )
) Supreme Court No. S-13060
Appellant, ) (Consolidated)
)
v. )
)
Sean Parnell, Lt. Governor, et al., )
) Order No. 62 - July 3,
2008
Appellees. )
_______________________________ )
Trial Court Case # 4FA-07-2696 CI
Before: Matthews, Eastaugh, Carpeneti, and
Winfree, Justices. [Fabe, Chief Justice, not
participating.]
In October 2007 an application for an initiative with
the title An Act to protect Alaskas clean water was filed with
the lieutenant governor (07WTR3). This was the third attempt to
place an initiative on the ballot that would restrict or regulate
the discharge of toxic materials from large scale metallic
mineral mines in Alaska. The Department of Law reviewed 07WTR3
and advised the lieutenant governor to certify the initiative
application. Relying on the Department of Laws advice, the
lieutenant governor certified initiative 07WTR3. The lieutenant
governor then prepared a summary and cost statement for the
initiative that incorporated the Department of Laws
interpretation. In January 2008 the sponsors of the initiative
submitted to the lieutenant governor a petition with over 30,000
signatures in support of 07WTR3.
In November and December 2007 the Council of Alaska
Producers, the Pebble Limited Partnership, and the Association of
ANCSA Regional Corporation Presidents/CEOs, Inc. and the Alaska
Federation of Natives, Inc., filed suit in the superior court
seeking a declaration that 07WTR3 violated constitutional and
statutory restrictions on legislation by initiative, and an
injunction that would prevent placement of the initiative on the
ballot. The sponsors of the initiative intervened in the action.
In February 2008 Superior Court Judge Douglas L.
Blankenship issued a decision concluding that 07WTR3 was a
permissible regulatory measure and not an appropriation and was
therefore appropriate for the ballot. In concluding that 07WTR3
was not an appropriation, Judge Blankenship adopted the approach
of the sponsors and the state and construed the references to
effects in section two as meaning adversely affects. Judge
Blankenship found in his final judgment that (1) 07WTR3 is not an
improper appropriation; (2) 07WTR3 [is] 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 Council of Alaska Producers and the Pebble Limited
Partnership appealed those portions of Judge Blankenships
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 are impartial and accurate.
The Association of ANCSA Regional Corporation Presidents/CEOs,
Inc. and the Alaska Federation of Natives, Inc. did not appeal
any portion of Judge Blankenships decision. We heard oral
argument on June 16, 2008.
IT IS ORDERED:
1. Judge Blankenship did not err in construing the
initiative broadly and reading the initiatives use of effects in
section two to mean adversely affects.
2. Judge Blankenship did not err in concluding that 07WTR3
would not make a constitutionally impermissible appropriation.
3. Judge Blankenship did not err in concluding that 07WTR3
would not enact constitutionally impermissible special
legislation.
4. Judge Blankenship did not err in concluding that the
summary and cost statements are not defective.
5. Accordingly, the decision of the superior court
declining to enjoin the placement of initiative 07WTR3 on the
ballot is AFFIRMED.
6. This court will issue a written opinion at a future
date explaining the reasons for this result.
7. Preparation of the ballots including initiative 07WTR3
need not await publication of this courts opinion.
Entered by direction of the court.
Clerk of the Appellate Courts
\s\ Marilyn May
_______________________________
1 The Department of Law uses the phrase adversely effect,
but the grammatically correct phrasing is adversely affect and we
adopt that phrasing.
2 Subsequent to the filing of the appellant briefs in
this lawsuit, the sponsors formally requested that the
lieutenant governor take such steps as are necessary to ensure
that Initiative 07WATR does not appear on the upcoming election
ballot. The sponsors then filed a notice of potential mootness
with this court. Because, as a result of this courts June 9
order, there is no appeal of Judge Blankenships order enjoining
the placement of 07WATR on the ballot, the sponsors request to
the lieutenant governor is moot.
3 We attach our July 3, 2008 order as Appendix A.
4 See Anchorage Citizens for Taxi Reform v.
Municipality of Anchorage,
151 P.3d 418, 422 (Alaska 2006).
5 Id.
6 Staudenmaier v. Municipality of Anchorage, 139 P.3d
1259, 1261 (Alaska 2006).
7 Anchorage Citizens for Taxi Reform, 151 P.3d at 422
(quoting Pullen v. Ulmer, 923 P.2d 54, 58 (Alaska 1996)).
8 See Alaskans for Efficient Govt, Inc. v. State, 52
P.3d 732, 735 (Alaska 2002) (ballot summary).
9 Id.
10 Id.
11 Anchorage Citizens for Taxi Reform,151 P.3d at 422.
12 Id.
13 Id. at 423.
14 See Thomas v. Bailey, 595 P.2d 1, 4-9 (Alaska 1979)
(state land may not be appropriated by initiative); see also
Alaska Action Ctr., Inc. v. Municipality of Anchorage, 84 P.3d
989, 993-95 (Alaska 2004) (same); McAlpine v. Univ. of Alaska,
762 P.2d 81, 90-91 (Alaska 1988) (holding one part of
initiative that would have transferred land from University of
Alaska to new community college an invalid appropriation).
15 See Thomas v. Rosen, 569 P.2d 793, 796 (Alaska 1977)
(endorsing definition of appropriation that involved setting
aside of public revenue).
16 See Alaska Conservative Political Action Comm. v.
Municipality of Anchorage, 745 P.2d 936, 938 (Alaska 1987) (A
utility with $32.7 million equity is a significant municipal
asset.).
17 See Pullen v. Ulmer, 923 P.2d 54, 61 (Alaska 1996).
18 151 P.3d 418 (Alaska 2006).
19 Id. at 424.
20 Id.
21 Id.
22 Pullen, 923 P.2d at 61; see also Anchorage Citizens
for Taxi Reform, 151 P.3d at 424.
23 Article VIII provides that the legislature has the
authority to provide for the utilization, development, and
conservation of the waters of the state for the maximum benefit
of the people, and reserves waters in their natural state for
common use by the people. Alaska Const. art. VIII, 2, 3.
24 Pullen v. Ulmer, 923 P.2d 54, 60 (Alaska 1996)
(quoting Owsichek v. State, Guide Licensing, 763 P.2d 488, 495
(Alaska 1988)).
25 Id. at 60-61.
26 Pullen, 923 P.2d at 59.
27 See Anchorage Citizens for Taxi Reform v.
Municipality of Anchorage, 151 P.3d 418, 424 (Alaska 2006).
28 See id.
29 See Anchorage Citizens for Taxi Reform, 151 P.3d at
423 (citing Pullen v. Ulmer, 923 P.2d 54, 63 (Alaska 1996)).
30 Id.
31 Id. (quoting McAlpine v. Univ. of Alaska, 762 P.2d
81, 88 (Alaska 1988)) (emphasis in original); see also
Staudenmaier v. Municipality of Anchorage, 139 P.3d 1259, 1262
(Alaska 2006) (quoting City of Fairbanks v. Fairbanks
Convention & Visitors Bureau, 818 P.2d 1153, 1156 (Alaska
1991)).
32 Staudenmaier, 139 P.3d at 1262 (quoting City of
Fairbanks, 818 P.2d at 1157); see also Pullen, 923 P.2d at 64
n.15.
33 The Alaska State Legislature, in its brief of amicus
curiae, does argue that 07WATR gives away public resources.
34 Pullen, 923 P.2d at 63 (quoting City of Fairbanks,
818 P.2d at 1157).
35 See id. at 64 n.15.
36 McAlpine v. Univ. of Alaska, 762 P.2d 81, 94 (Alaska
1988).
37 City of Kenai v. Friends of Recreation Ctr., Inc.,
129 P.3d 452, 459 (Alaska 2006) (quoting Govt Employees Ins.
Co. v. Graham-Gonzalez, 107 P.3d 279, 284 (Alaska 2005)).
38 Alaskans for a Common Language, Inc. v. Kritz, 170
P.3d 183, 192-93 (Alaska 2007).
39 State, Dept of Commerce, Cmty. and Econ. Dev., Div.
of Ins. v. Progressive Casualty Ins. Co., 165 P.3d 624, 629
(Alaska 2007) (quoting Kodiak Island Borough v. Exxon Corp.,
991 P.2d 757, 761 (Alaska 1999)).
40 Boucher v. Engstrom, 528 P.2d 456, 462 (Alaska 1974)
(quoting Cope v. Toronto, 332 P.2d 977, 979 (Utah 1958)),
overruled on other grounds by McAlpine v. Univ. of Alaska, 762
P.2d 81 (Alaska 1988).
41 Id. at 193.
42 Anchorage Citizens for Taxi Reform, 151 P.3d 418, 422
(Alaska 2006) (quoting Pullen v. Ulmer, 923 P.2d 54, 58 (Alaska
1996)).
43 Brooks v. Wright, 971 P.2d 1025, 1033 (Alaska 1999)
(We find little support . . . for the proposition that the
common use clause of Article VIII grants the legislature
exclusive power to make laws dealing with natural resource
management.).
44 Id. at 1029.
45 See Pullen, 923 P.2d at 63-64.
46 Id.
47 Alaskans for Efficient Govt, 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)).
48 Id.
49 Id.
50 Id.
51 528 P.2d 456 (Alaska 1974) overruled on other grounds
by McAlpine v. Univ. of Alaska, 762 P.2d 81, 84 (Alaska 1988).
52 Id. at 458.
53 Id. at 459, 462.
54 Id. at 459.
55 See id. at 461 (If the subject of the statute may
apply to, and affect the people of, every political subdivision
of the state, it is a law of general nature . . . .) (quoting
Sutherland Statutory Construction 40.02, at 139-40 (4th ed.
1973)).
56 Id. at 461 n.17.
57 Id. We note that, in addition to the legislative
history set out in Boucher, constitutional history informs our
understanding of the meaning of special legislation: During
the discussion that preceded the adoption of article XI,
section 7, delegates to the Constitutional Convention described
and gave examples of their conception of special legislation
that are helpful to our inquiry. W. O. Smith expressed his
view that the intent of the ban on special legislation was to
prevent the initiation of legislation affecting local areas
wherein the people of the state as a whole would be allowed to
vote on issues which concerned only one locality. George W.
McLaughlin expanded on that idea, stating that local and
special legislation has a specific meaning in the law and in
fact it is the expressed intent of the local government article
that no local laws, that is laws of special and local effect
shall be passed, but only general laws applicable to all
communities. The delegates, in explaining the concept of
special legislation to their colleagues, used the examples of a
law that granted a divorce to one couple, an appropriation of
funds for one specific school, or a prohibition of fish traps
in only one particular cove. 2 Proceedings of the Alaska
Constitutional Convention 1132-34 (December 19, 1955).
58 This is not to say that such a statute or initiative
could not be challenged on other constitutional grounds, such
as equal protection; however, it will be valid for purposes of
article XI, section 7.
59 Boucher v. Engstrom, 528 P.2d 456, 463 (Alaska 1974).
60 Id. at 461 (quoting Sutherland, supra note 55, at
40.02).
61 Id. (noting that the critical element is whether
there is a rational basis for the particular classification . .
. . the classification must bear a reasonable and proper
relationship to the purpose of the act and the problem sought
to be remedied.).
62 559 P.2d 630 (Alaska 1977).
63 Id. at 643 and n.44 (modifying the special
legislation test described in Boucher in order to reflect more
stringent equal protection standard set forth in Isakson v.
Rickey, 550 P.2d 359, 361-63 (Alaska 1976)). It may be useful
to clarify how this test relates to our recent opinion in
Bridges v. Banner Health, 201 P.3d 484 (Alaska 2008). Bridges
quotes with approval a treatise stating that [a] statute is
unconstitutional special legislation if (1) it creates [a]
totally arbitrary and unreasonable method of classification, or
(2) it creates a permanently closed class. Id. at 494 (quoting
2 Norman J. Singer, Sutherland Statutory Construction 40.1, at
213 (6th ed. 2000)). Due to the use of or rather than and in
that formulation, it might create some uncertainty about the
structure of our special legislation test. Despite the quoted
language, creation of a permanently closed class does not
necessarily constitute prohibited special legislation if the
legislation bears a fair and substantial relationship to
legitimate public purposes. Nor does the inquiry reach the
question of a fair and substantial relationship if the law in
question is of general applicability.
Nevertheless, the outcome in Bridges was consistent
with the two-step analysis we have outlined here. In Bridges,
we found the statute in question was a general act because it
applies uniformly to any entity that seeks to construct an
independent diagnostic testing facility . . . . [T]he class
covered by the statute will grow if additional health care
providers seek to construct independent diagnostic testing
facilities. Bridges, 201 P.3d at 495. In Bridges, we upheld the
statute on that basis, noting that we did not reach the issue
of a fair and substantial relationship to legitimate purposes
because the appellant did not raise that issue. Id. at 494-95.
We might have better said that this second issue was not
reached because the legislation in question was, under our
threshold test, found to be a law of general applicability.
64 Id. (overturning Walters v. Cease, 394 P.2d 670
(Alaska 1964)).
65 Id. at 462-63 n.22.
66 Id. at 464.
67 559 P.2d at 632-33.
68 Id. at 642.
69 Id. at 643.
70 Id. at 644.
71 958 P.2d 422 (Alaska 1998).
72 Id. at 424.
73 Id. at 430 (noting that relevant inquiry was the one
required when the legislature has singled out an area or
group).
74 Id. at 431.
75 Id.
76 528 P.2d 456, 464 (Alaska 1974).
77 Katzenbach v. Morgan, 384 U.S. 641, 657 (1966)
(internal citations omitted).
78 Commercial Fisheries Entry Commn v. Apokedak, 606
P.2d 1255, 1267 (Alaska 1980).
79 National Research Council, Hardrock Mining on Federal
Lands, 67 (1999), available at
http://books.nap.edu/catalog.php?record_id=9682, (follow Full
Text hyperlink). The report notes that [i]f not mitigated
through regulation and prevention strategies, hardrock mining
can have long-term impacts on . . . water chemistry, aquatic
biota, and aquatic habitat. Id. at 153. Problems associated
with metallic hardrock mining include discharge of metals,
cyanide, and acid drainage. Id. at 153-56. It notes that even
very low concentrations of metals can be harmful to fish. Id.
at 159.
80 The superior court recognized that [i]n practice, the
lieutenant governor uses the same summary for both the petition
and the ballot. The standards for the adequacy of the summary
apply equally whether it is a ballot summary or petition
summary.
81 52 P.3d 732 (Alaska 2002).
82 Id. at 735-36 (holding that the petition summary at
issue fails to adequately describe the actual changes that the
relocation initiative proposes to make and casts the
initiatives purpose in an unnecessarily negative light).
83 Id. at 734 (quoting Burgess v. Alaska Lieutenant
Governor, 654 P.2d 273, 275 (Alaska 1982)).
84 Id. at 736. See also Burgess, 654 P.2d at 276
(holding that Alaska Constitution and state law do not require
the lieutenant governor to give special reminders to the voters
regarding the scope of a state initiative).
85 Alaskans for Efficient Govt Inc. v. State, 52 P.3d
732, 736 (Alaska 2002) (quoting Gaines v. McCuen, 758 S.W.2d
403, 406 (Ark. 1988)).
86 Id. at 735 (quoting Faipeas v. Municipality of
Anchorage, 860 P.2d 1214, 1217 (Alaska 1993)).
87 Burgess, 654 P.2d at 276.
88 See Still v. Cunningham, 94 P.3d 1104, 1111 (Alaska
2004) (Issues that are not raised in the superior court are
waived and cannot be asserted on appeal as grounds for
overturning a judgment.). The Councils argument before the
superior court was that the summary was misleading because it
did not state that the initiative would end all LSMM mining.
The superior court correctly rejected this original argument
because, by its terms, the initiative does not ban all LSMM
mining: (1) existing mines with all required permits are not
affected, and (2) new mines will also be able to operate if
they can do so without adversely affecting human drinking water
or salmon life cycles.
89 Alaskans for Efficient Govt, 52 P.3d at 736.
90 See, e.g., Advisory Opinion to the Attorney General
re Referenda Required for Adoption, 963 So. 2d 210, 214 (Fla.
2007) (In deciding the validity of a financial impact
statement, the Court has limited itself only to address whether
the statement is clear, unambiguous, consists of no more than
seventy-five words, and is limited to address the estimated
increase or decrease in any revenues or costs to the state or
local governments.); Stop Over Spending Montana v. State, 139
P.3d 788, 793 (Mont. 2006) (upholding cost statement even
though [t]he fiscal note says that the fiscal impact of the
measure is unknown); Bassien v. Buchanan, 798 P.2d 667, 669
(Or. 1990) (holding that failure of government officials to
file statutorily-required fiscal impact estimates for
initiatives did not prevent a valid vote on the measures).
91 See Still, 94 P.3d at 1111.
92 Id.
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