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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kanuk v. State, Dept. of Natural Resources (9/12/2014) sp-6953

Kanuk v. State, Dept. of Natural Resources (9/12/2014) sp-6953

        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  



NELSON KANUK, a minor, by and                     )
  

through his guardian, SHARON                      )
       Supreme Court No. S-14776  

KANUK; ADI DAVIS, a minor, by                     )
  

and through her guardian, JULIE                   )
       Superior Court No. 3AN-11-07474 CI  

DAVIS; KATHERINE DOLMA, a                         )
  

minor, by and through her guardian,               )
       O P I N I O N  

BRENDA DOLMA; ANANDA                              )
  

ROSE AHTAHKEE LANKARD, a                          )
       No. 6953 - September 12, 2014  

minor, by and through her guardian,               )
  

GLEN "DUNE" LANKARD; and                          )
  

AVERY and OWEN MOZEN, minors, )
  

by and through their guardian,                    )
  

HOWARD MOZEN,                                     )
  

                                                  )
  

                         Appellants,              )
  

                                                  )
  

                 v.	                              )  

                                                  )  

STATE OF ALASKA,                                  )  

DEPARTMENT OF NATURAL                             )  

RESOURCES,                                        )  

                         Appellee.	               )  

                                                  )  



                 Appeal from the Superior Court of the State of Alaska, Third  

                 Judicial District, Anchorage, Sen K. Tan, Judge.  



                 Appearances: Brad D. De Noble, Eagle River, for Appellants.  

                                                           

                 Seth M. Beausang, Assistant Attorney General, Anchorage,  

                 and  Michael  C.  Geraghty,  Attorney  General,  Juneau,  for  

                 Appellee.       Peter  Van  Tuyn,  Rebecca  L.  Bernard,   and  

                                                                           

                 Teresa   B.   Clemmer,   Bessenyey   &   Van   Tuyn,   L.L.C.,  

                                                                  


----------------------- Page 2-----------------------

                  Anchorage, for Amici Curiae Law Professors.  Gabriel W.  

                   Scott,  Cordova,  for  Amicus  Curiae  Alaska  Inter-Tribal  

                  Council.  



                  Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                                                                    

                  Bolger, Justices.   



                  MAASSEN, Justice.  



I.       INTRODUCTION  



                  The appellants in this case are minors from communities across Alaska who  



claim that the State has violated its duties under the Alaska Constitution and the public  

                                              



trust doctrine by failing to take steps to protect the atmosphere in the face of significant  

                                                                                                      



and potentially disastrous climate change.  The minors argue that the superior court erred  



when it dismissed their complaint on grounds that their claims were not justiciable -  



specifically, that the claims involved political questions best answered by other branches  

                                                                                   



of state government.  On that basis we affirm the dismissal of the claims asking the court  



to set specific standards for carbon dioxide emissions and to order the State to implement  

                                                                                               



reductions in accordance with those standards.   



                  The minors also sought a declaratory judgment on the nature of the State's  



duty to protect the atmosphere; the claims for declaratory relief do not present political  



questions.  We nonetheless affirm their dismissal, because in the absence of justiciable  

                                                 



claims for specific relief, a declaratory judgment will not settle the parties' controversy  

                                                                     



or otherwise provide them with clear guidance about the consequences of their future  



conduct.  



                                                          -2-                                                   6953
  


----------------------- Page 3-----------------------

II.       FACTS AND PROCEEDINGS  



                                                                                                   1 

                                                                                    

                    In May 2011, six Alaskan children (the plaintiffs),  acting through their  



                                                                                                              

guardians, filed suit in the superior court against the State of Alaska, Department of  



Natural Resources, seeking declaratory and equitable relief.  The plaintiffs contended  



                                                                                            

that the State breached "its public trust obligations [under] [a]rticle VIII of the Alaska  



                            

Constitution" by failing "to protect the atmosphere from the effects of climate change  



                                                                                        2  

                                     

and secure a future for Plaintiffs and Alaska's children."   The plaintiffs alleged facts  



          1         The six plaintiffs are Nelson Kanuk of Kipnuk, 16 years old at the time suit   



was  filed;  Adi  Davis  and  Katherine  Dolma  of  Homer,  both   then   15;  Ananda  Rose  

Ahtahkee Lankard of Anchorage, then nearly one; and Avery Mozen and Owen Mozen     

of McCarthy and Anchorage, then 10 and 7, respectively.     



          2  

                                                                                                     

                    Article VIII of the Alaska Constitution includes the following provisions  

relevant here:  



                     Section 1 - Statement of Policy  



                    It is the policy of the State to encourage the settlement of its  

                    land and the development of its resources by making them  

                             

                    available for maximum use consistent with the public interest.  



                     Section 2 - General Authority  



                    The legislature shall provide for the utilization, development,  

                                                                           

                    and  conservation  of  all  natural  resources  belonging  to  the  

                     State, including land and waters, for the maximum benefit of  

                                                                             

                    its people.  



                     Section 3 - Common Use  



                    Wherever occurring in their natural state, fish, wildlife, and  

                                                                                             

                    waters are reserved to the people for common use.  



                     Section 4 - Sustained Yield  



                    Fish, forests, wildlife, grasslands, and all other replenishable  

                                                                               

                    resources belonging to the State shall be utilized, developed,  

                                                                               

                                                                                                                (continued...)  

                                                                -3-                                                         6953  


----------------------- Page 4-----------------------

                                                                             

showing that each of them has been individually and directly harmed by climate change.  



They  asked  the  superior  court  for  a  declaratory  judgment  holding  (1)  that  "the  



atmosphere is a public trust resource under [a]rticle VIII," which (2) the State "has an  



affirmative fiduciary obligation to protect and preserve," and (3) that the State "has failed  



to  uphold  its  fiduciary  obligations."    They  also  asked  the  court  to  declare  that  the  



parameters of the State's duty to protect the atmosphere are (4) "dictated by the best  



available science and that said science requires carbon dioxide emissions to peak in 2012  

                                                                     



and be reduced by at least 6% each year until 2050," and (5) that the duty is "enforceable  

                                                                            



by citizen beneficiaries of the public trust."  Finally, the plaintiffs asked the court to  



order the State (6) "to reduce the carbon dioxide emissions from Alaska by at least 6%  

                                                                                        



per  year  from  2013  through  at  least  2050,"  and  (7)  "to  prepare  a  full  and  accurate  



accounting  of  Alaska's  current  carbon  dioxide  emissions  and  to  do  so  annually  



thereafter."  



                   The  State  moved  to  dismiss  the  complaint  under  Alaska  Civil  Rules  



                                 3  

12(b)(1) and 12(b)(6).   Following oral argument, the superior court issued a written  



decision holding that all the claims made in the complaint were non-justiciable and  



                                                                                                                           4  

                                                                                                                               

granting the motion to dismiss under Rule 12(b)(6).   The plaintiffs filed this appeal. 

                                                                               



          2(...continued)
  



                    and maintained on the sustained yield principle, subject to
  

                   preferences among beneficial uses.
  



          3        Rules 12(b)(1) and 12(b)(6), respectively, allow a defendant to assert by  



motion the defenses of "lack of jurisdiction over the subject matter" and "failure to state  

                                                                                                         

a claim upon which relief can be granted."  



          4        The parties presented their oral arguments to this court before an audience  



primarily of students at Barrow High School in Barrow, a community that has been  

                    

labeled "ground zero for climate-change."  Bob Reiss, Barrow, Alaska:  Ground Zero  

                                                                                                            

                                                                                                          (continued...)  

                                                             -4-                                                          6953  


----------------------- Page 5-----------------------

 III.      STANDARDS OF REVIEW
  



                                                                           

                     "We review a motion to dismiss de novo, construing the complaint liberally  



                                       

 and accepting as true all factual allegations.  In reviewing a motion to dismiss, we do not  



 consider materials outside the complaint and its attachments."5  "[M]otions to dismiss are  



 disfavored," and before dismissal will be granted it must be "beyond doubt that the  



                                                                                                                 6  

                                                                                                   

 plaintiff can prove no set of facts that would entitle him or her to relief."   "Even if the  



 relief demanded is unavailable, the claim should not be dismissed as long as some relief  



                                                                                7  

 might be available on the basis of the alleged facts."                                                                   

                                                                                  "We view the facts in the best light  



 for the nonmovant . . . and draw all reasonable inferences in [that party's] favor."8  



                                                                                                                  

                     "Matters of constitutional . . . interpretation are questions of law, which we  



                             9  

             

 review  de  novo,"   "adopt[ing]  the  rule  of  law  that  is  most  persuasive  in  light  of  



           4(...continued)  



for     Climate          Change ,         SMITHSONIAN               MAGAZINE ,            Mar.       2010,       available          at  

 http://www.smithsonianmag.com/science-nature/barrow-alaska-ground-zero-for-clim  

 ate-change-7553696/?no-ist.  



           5         Pedersen v. Blythe , 292 P.3d 182, 184 (Alaska 2012) (footnote omitted)   



 (citing Larson v. State, Dep't of Corr ., 284 P.3d 1, 7 (Alaska 2012); Caudle v. Mendel,  

 994 P.2d 372, 374 (Alaska 1999)).  



           6  

                                                                            

                     Adkins v. Stansel , 204 P.3d 1031, 1033 (Alaska 2009) (quoting Catholic  

                 

 Bishop of N. Alaska v. Does 1-6 , 141 P.3d 719, 722 (Alaska 2006)) (internal quotation  

 marks omitted).  



           7         Id. (citing Miller v. Johnson , 370 P.2d 171, 172 (Alaska 1962)).  



           8          Waiste v. State, 10 P.3d 1141, 1144-45 (Alaska 2000).  



           9  

                                                       

                     State, Dep't of Corr. v. Heisey, 271 P.3d 1082, 1085 (Alaska 2012) (citing  

                                             

 Bradshaw v. State, Dep't of Admin., Div. of Motor Vehicles , 224 P.3d 118, 122 (Alaska  

 2010)).  

                                                                  -5-                                                              6953  


----------------------- Page 6-----------------------

                                            10  

precedent, reason and policy."                  Because we are "the ultimate arbiter" of issues such as  



standing, mootness, and ripeness, we review de novo the question of whether a case  



should be dismissed on prudential grounds.11  

                                                                    



IV.       DISCUSSION  



          A.        The Plaintiffs Have Standing.  



                                                                                                               

                   We first address the State's challenge to the plaintiffs' standing.  A standing  



                                                                                                     

inquiry  asks  whether  the  plaintiff  is  "a  proper  party  to  request  an  adjudication  of  a  

particular issue."12  We interpret the concept broadly in favor of "increased accessibility  



to judicial forums."13  

                                  



                    1.       The plaintiffs have interest-injury standing.  



                   We recognize two types of standing:  interest-injury standing and citizen- 

                                                        

taxpayer standing.14  The plaintiffs here claim interest-injury standing, which means they  

                                                                                                      



must show a "sufficient personal stake in the outcome of the controversy to ensure the  

                                                                                          



                              15  

requisite  adversity."              "[T]he  degree  of  injury  to  interest  need  not  be  great:    an  



          10       Id. (quoting Ruckle v. Anchorage Sch. Dist. , 85 P.3d 1030, 1034 (Alaska  



2004)) (internal quotation marks omitted).   



          11       State v. Am. Civil Liberties Union of Alaska                      , 204 P.3d 364, 368 (Alaska  



2009).  



          12        Trs. for Alaska v. State, Dep't of Natural Res., 736 P.2d 324, 327 (Alaska  

                                                                                        

1987) (quoting Moore v. State , 553 P.2d 8, 24 n.25 (Alaska 1976)) (internal quotation  

                                                                 

marks omitted).  



          13       Id. (quoting Moore , 553 P.2d at 23) (citations and internal quotation marks  



omitted).  



          14       Larson v. State, Dep't of Corr. , 284 P.3d 1, 12 (Alaska 2012).  



          15       Id.  (quoting  Kleven  v.  Yukon-Koyukuk  Sch.  Dist.,  853  P.2d  518,  526  



(Alaska 1993)) (internal quotation marks omitted).  

                                                             -6-                                                          6953  


----------------------- Page 7-----------------------

                                                                                                                            16  

identifiable trifle is enough for standing to fight out a question of principle."                                               "The  



                                                                                           

affected interest may be economic or intangible, such as an aesthetic or environmental  

interest."17  



                                                                                                         

                     The amended complaint in this case alleged injuries from climate change  



that were both specific and personal:  



                                8.        Nelson [Kanuk] has been personally affected by  

                     climate change  due to erosion from ice melt and flooding  

                     from  increased  temperatures.    In  December  2008,  ice  and  

                     water flooded the village, causing Nelson and his family as  

                     well as many others in his village to have to evacuate their  

                     homes.    This  erosion,  flood,  melting  ice  and  increased  

                     temperatures  threaten  the  foundation  of  Nelson's  home,  

                     village, native traditions, food sources, culture, and annual  

                                                                                                   

                     subsistence hunts.  



                                 . . . .  



                                12.       . . .  In [Adi Davis's] area, rising temperatures  

                                                  

                     are especially important because of the Spruce Bark Beetle  

                                                                                

                     infestation.    The  higher  summer  temperatures  allow  more  

                     Spruce  Bark  Beetles  to  hatch  and  infest  trees.    This  has  

                     caused  the  destruction  of  more  than  one  million  mature  

                                                                                            

                     spruce trees on the Kenai Peninsula.  This has led to a rise in  

                                               

                     forest fires in her area.  Adi also fears that climate change  

                                                                                            

                     will wipe out the polar bears before she has the chance to see  

                     them in the wild and cause glaciers to disappear before her  

                                   



           16        Id. (quoting Bowers Office Prods., Inc. v. Univ. of Alaska                                , 755 P.2d 1095,   



1097 (Alaska 1988)) (internal quotation marks omitted).                                    See also Trs. for Alaska              , 736  

P.2d  at  327  ("[T]he  trifle  is   the  basis  for  standing  and  the  principle  supplies  the  

motivation." (quoting  Wagstaff v. Super. Ct., Family Ct. Div.                                  , 535 P.2d 1220, 1225  n.7   

(Alaska 1975)) (internal quotation marks omitted).  



           17        Friends of Willow Lake v. State, Dep't of Transp. & Pub. Facilities, Div.  



of Aviation & Airports, 280 P.3d 542, 547 (Alaska 2012) (citing Trs. for Alaska, 736  

P.2d at 327).  

                                                                  -7-                                                            6953  


----------------------- Page 8-----------------------

children and grandchildren are able to touch and see them as  

she has.  



          . . . .  



          14.       . . . Years ago, beluga whales used to come into  

                                                                       

nearby  Kachemak  Bay  but  now  they  no  longer  come.  

                                                     

Katherine [Dolma] has not seen the whales in Kachemak Bay  

and  fears  that,  due  to  the  careless  ways  of  the  older  

generations, she and her generation will not have the joy of  

seeing the whales.  



          . . . .  



          17.      Ananda  [Rose  Ahtahkee  Lankard]  and  her  

family   and   others   in   the   Eyak   community   have   been  

                   

personally affected by climate change due to erosion from ice  

melt and flooding from increased temperatures, as well as the  

                                                                                 

forests dying.  In the past decade there have been numerous  

                                       

floods      in    Alaska       and     Cordova,         Ananda's         traditional  

                                      

homelands.  These floods, melting glaciers, dying forests and  

                                        

increased   temperatures   threaten   Ananda's   village,   wild  

Copper   River   salmon   and   other   food   sources,   native  

traditions, culture, and livelihood.  



          18.       . . . [Ananda] has seen glaciers receding, decline  

                                        

of  wild  salmon  stocks  in  the  Copper  River  and  Prince  

William Sound, the loss of salmon habitat and the decline of  

animals.  Alaska is very important to Ananda because it is  

                                      

essential to her family's history, traditions and culture.  



          . . . .  



          21.      Avery and Owen [Mozen] think global warming  

is bad because the North Pole is melting.  It used to be huge  

                                                              

and now it is tiny.  The polar bears now have to swim a long  

                                                                   

ways to get food.  It has also caused the glacier that they live  

                                    

next to, the Kennicott Glacier, to shrink.  It used to be a lot  

bigger which makes Avery and Owen sad.  



                                          -8-                                                       6953
  


----------------------- Page 9-----------------------

Accepting  these  allegations  as  true  and  drawing  all  reasonable  inferences  in  the  

plaintiffs' favor, as courts are required to do on a motion to dismiss,18 we conclude that  

                                                                                         



the complaint shows direct injury to a range of recognizable interests.  Especially in light  

                                                                                                           



of our broad interpretation of standing and our policy of promoting citizen access to the  

                                               

courts,19 the plaintiffs' allegations are sufficient to establish standing.  



                     2.	       The plaintiffs' standing is not lost by the fact that  

                               climate change affects other people as well.  



                     The State argues that "[a] standing requirement that does not distinguish  



Plaintiffs from any other person in Alaska is no requirement at all."  In support, it cites  

                               



Center for Biological Diversity v. United States Department of the Interior, quoting the  

                                                                                              



federal court's observation in that case that "climate change is a harm that is shared by  

                                                                     



humanity at large, and the redress that Petitioners seek - to prevent an increase in global  

                                                                                        



temperature - is not focused any more on these petitioners than it is on the remainder  

                                   



                                         20  

of the world's population."                  The court in Center for Biological Diversity concluded that  

"Petitioners' alleged injury is too generalized to establish standing."21  



                     We find Center for Biological Diversity inapt for several reasons.  First, the  



plaintiff in that case was a public interest organization that had failed to "allege anywhere  

                                      



that it ha[d] suffered its own individual harm apart from the general harm caused by  

                     

climate change, and its derivative effects on [its] members."22  Here, the plaintiffs allege  



individual harm; all Alaskans cannot claim the same degree of injury as Kanuk, for  



          18         See, e.g., J & S Servs., Inc. v. Tomter , 139 P.3d 544, 547 (Alaska 2006). 
 



          19         See, e.g., Trs. for Alaska, 736 P.2d at 327.
  



          20         563 F.3d 466, 478 (D.C. Cir. 2009). 
 



          21        Id.
  



          22        Id. at 477.   See also id.           at 478 ("Petitioners have not established either the
         



injury or causation element of standing.").  

                                                                 -9-                                                              6953  


----------------------- Page 10-----------------------

                                                                                          

example, whose family is alleged to have had to evacuate its home because of climate  



                            

change.  Second, the court in  Center for Biological Diversity was applying the more  



stringent  federal  standing  requirements;  Alaska's  courts  are  more  accessible  to  its  



             23  

citizens.          And  finally,  even  federal  law  recognizes  that  denying  injured  persons  



                                                                                             

standing on grounds that others are also injured - effectively preventing judicial redress  



                                                                                                            

for the most widespread injury solely because it is widespread -  is perverse public  



           24  

policy.        



                                                                                                                  

                    The same policy concern applies to the State's claim that the case should  



                                                           

be dismissed because all Alaskans are indispensable parties and it is not feasible to join  



them   all   under   Alaska   Civil   Rule   19   ("Joinder   of   Persons   Needed   for   Just  



Adjudication").  Rule 19(a) provides that persons must be joined as parties if in their  



absence "complete relief cannot be accorded among those already parties"; or if the  



absent persons' interests will suffer in a practical way if they are not joined; or if their  



absence will "leave any of the persons already parties subject to a substantial risk of  



incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed  



                                  

interest."    The  State  contends  that  other  Alaskans  may  disagree  with  the  plaintiffs'  



requests in this case that greenhouse gases be reduced by six percent annually:  some  



          23        Compare, e.g., Larson v. State, Dep't of Corr. , 284 P.3d 1, 12 (Alaska  



2012) ("[T]he  degree  of injury to interest need not be great: an identifiable trifle is  

                                    

enough for standing to fight out a question of principle." (quoting Bowers Office Prods.,  

                                                                     

Inc. v. Univ. of Alaska , 755 P.2d 1095, 1097 (Alaska 1988)) (internal quotation marks  

                                                                                                           

omitted),  with  Biological  Diversity ,  563  F.3d  at  477  ("In  order  for  a  petitioner  to  

                                                                                                             

establish standing, a petitioner must demonstrate that it has suffered  a  concrete and  

                                                                                                             

particularized injury that is caused by, or fairly traceable to, the act challenged in the  

                                                                           

litigation and redressable by the court.").  



          24        See Massachusetts v. EPA, 549 U.S. 497, 522 (2007) ("That these climate- 

                           

change  risks  are  'widely  shared'  does  not  minimize  Massachusetts'  interest  in  the  

outcome of this litigation.").  

                                                              -10-                                                             6953  


----------------------- Page 11-----------------------

                                                                                                                                   

Alaskans may believe that number to be too high, others too low, and only if all Alaskans  



                   

are joined can all their viewpoints be represented.  The State also contends that it may  



                                                                                                      

be exposed to inconsistent obligations, since a decision in this case will not collaterally  



                                                                                      

estop other plaintiffs from bringing similar cases in the future seeking the imposition of  



different standards.  



                       The plaintiffs counter that if the State's position were accepted, "no lawsuit  



                                                                                                              

could ever be filed concerning any matter of public interest, . . . and most environmental  



litigation  would  be  prohibited."    The  plaintiffs'  argument  has  merit.    Lawsuits  that  



challenge regulatory standards - whether governing emissions levels, the number of  



                                                                                              

harvestable salmon, the distance of required setbacks, or high school test scores - often  



                                                                                            

argue for standards not favored by all Alaskans.  To join all Alaskans in every suit that  



involves challenges to state law and policy would be "impractical and unnecessarily  



                        25  

                                                                                                                                 

burdensome."                   And  to  require  dismissal  of  such  lawsuits  because  all  possible  



viewpoints cannot be represented would create unacceptable barriers to the courts.  The  



                                          

State does not direct us to any cases that have applied Rule 19(b) to require dismissal in  



such a context, and we decline to do so here.  



            25         See Martinez v. Clark Cnty., Nev., 846 F .Supp. 2d 1131, 1148-49 (D. Nev.   



2012) (in a case involving constitutional challenge to state law requiring that holders of                                            

certificates  to  perform  marriages   have  a  religious  affiliation,  finding  no  "case  law  

requiring a plaintiff who challenges the constitutionality of a statute to join everyone  

conceivably impacted by a declaration that the statute is unconstitutional. . . .  Although  

                                                                                                                                      

Rule 19 arguably favors joinder of certificate holders in this case, the Court finds it  

                                                                                                                               

impractical and unnecessarily burdensome to require Plaintiffs to join every other person  

who  conceivably  may  be  affected  by  a  declaration  that  the  challenged  law  is  

unconstitutional"); see also B.B.P. Corp. v. Carroll, 760 P.2d 519, 525 (Alaska 1988)  

("To require all residents of a subdivision to be parties to any lawsuit raising an issue of  

                                                                                                

abandonment  of  a  covenant  would  place  a  heavy  burden  on  the  courts  and  on  the  

                                                                                                                                           

parties.").  

                                                                        -11-                                                                       6953  


----------------------- Page 12-----------------------

                      Finally, the State claims that the plaintiffs lack standing to sue the State  



because they do not allege that it is the State that caused them harm; according to the  



State, the plaintiffs acknowledge instead that climate change is a global problem caused  



                                                                                                                        

by carbon emissions worldwide.  But the complaint does allege a duty on the State's part  



and breach of that duty:  it seeks a declaration that the State "has an affirmative and  



                         

fiduciary duty to protect and preserve the atmosphere as a commonly shared public trust  



                                                                           

resource for present and future generations of Alaskans under [a]rticle VIII of the Alaska  



                                                        

Constitution" and alleges that the State has breached this duty by "fail[ing] to ensure the  



                          

protection and preservation of [the State's] atmospheric resource from the impacts of  



                                                                                                                  

climate change."  Assuming the existence of a fiduciary duty on the part of the State to  



protect  a  public  resource,  the  duty  would  not  seem  to  depend  on  the  source  of  the  



                            26  

                                                   

threatened harm.                Under our well-established doctrine of interest-injury standing, the  



                                                                                    

plaintiffs have standing to bring suit against the  State on the claims alleged in their  

complaint.27  



           26         See Massachusetts v. EPA, 549 U.S. at 523 ("EPA does not dispute the   



existence of a causal connection between manmade greenhouse gas emissions and global       

warming.    At  a  minimum,  therefore,  EPA's  refusal  to  regulate  such  emissions  

'contributes' to Massachusetts' injuries."); Ctr. for Biological Diversity v. Nat'l Highway  

Traffic Safety Admin., 538 F.3d 1172, 1217 (9th Cir. 2008) ("[T]he fact that 'climate  

                                                                                           

change is largely a global phenomenon that includes actions that are outside of [the  

agency's] control . . . does not release the agency from the duty of assessing the effects  

                                                                                                                               

of its actions on global warming within the context of other actions that also affect global  

warming.' " (quoting petitioners' brief with approval; emphasis by the court)).  



           27         The State's reliance on Neese v. Lithia Chrysler Jeep of Anchorage, Inc. ,  

                                                                                                                    

210  P.3d  1213,  1219  (Alaska  2009),  for  the  proposition  that  "the  plaintiffs  lacked  

                                                                                                   

standing  to  sue  [defendants]  that  caused  them  no  harm,"  is  misplaced.    The  auto  

                             

dealerships in Neese owed no duty to plaintiff consumers with whom they had done no  

                                                                                                

business.  The State, conversely, owes duties to all its citizens.  

                                                                    -12-                                                                   6953  


----------------------- Page 13-----------------------

          B.         The Plaintiffs' Suit Is Not Barred By Sovereign Immunity.  



                                                                                

                     The State contends that the plaintiffs' claims are based in tort law and are  



therefore barred by the doctrine of sovereign immunity.  Alaska Statute 09.50.250(1)  



grants the State immunity from a suit that "is an action for tort, and [is] based upon the  



                                                                                 

exercise or performance or the failure to exercise or perform a discretionary function or  



duty  on  the  part  of  a  state  agency  or  an  employee  of  the  state,  whether  or  not  the  



discretion involved is abused."  This statute does not bar the plaintiffs' claims.  The duty  



                                                             

the State is alleged to have breached, according to the complaint, is a fiduciary duty  



based on article VIII of the Constitution and the public trust doctrine, not tort law.  



                                                                   28 

                                                                                                                  

                     The State cites Brady v. State ,   contending that in that case we "held that  



                                                                             

the State enjoyed sovereign immunity from a tort claim very similar to the one brought  



                                                                                               

by Plaintiffs."  But Brady is distinguishable.  In that case the State's policy response to  



                                                                                   

a beetle epidemic, decimating forests across Alaska, prompted the plaintiffs to bring a  



                                                                                 29  

                                                                                     Relevant here is the plaintiffs'  

number of claims against the State and its officials. 



claim in Brady that "the State's failure to staunch the beetle epidemic render[ed] it liable  

                                                                                                          



in negligence, in equity as a trustee who has allowed waste of the trust corpus, and under  

                                                              



                                           30  

forest-protection   statutes."                     Finding   that   policymaking   with   regard   to   forest  

                            

management was a discretionary function,31 we held that sovereign immunity barred the  



                                 32  

plaintiffs' tort claims.             But we did not, as the State here argues, hold that the plaintiffs'  



          28         965 P.2d 1 (Alaska 1998).  



          29        Id. at 5-6.  



          30        Id. at 16.  



          31        Id.  



          32        Id. at 17 ("We thus conclude that the State is immune from the Bradys' tort   



claims regarding its management of its forests and response to the beetle epidemic.").  

                                                               -13-                                                              6953  


----------------------- Page 14-----------------------

public trust argument stemmed from tort law, or that sovereign immunity barred the  



                               33 

                                                                                                                   

public trust claim.                Instead, we rejected the public trust argument because there was no  



legal support for the specific relief the plaintiffs sought:  



                       The Bradys offer no authority for their argument that, since  

                       the  State  holds  public  lands  as  a  "trustee"  under  Alaska's  

                       Public  Trust  Doctrine,  and  since  a  private  trustee  can  be  

                       subject  to  an  accounting  to  the  beneficiaries  for  allowing  

                                     

                       waste of the trust corpus, the State can thus by analogy be  

                       liable in damages under the Public Trust Doctrine for letting  

                       beetles destroy the arboreal corpus of the public trust. The  

                       Bradys   point  to  no  opinion  applying  the  Public  Trust  

                                     

                                                [34]  

                       Doctrine thus.  



In this case, the plaintiffs' public trust claims requested only declaratory and equitable     



relief - not damages - and Brady  does not control.  Brady cannot reasonably be read  



as holding that violations of the public trust doctrine are without remedy, as the State  



would have it.  We conclude that the plaintiffs' suit is not barred by sovereign immunity.  



            C.	        Of The Plaintiffs' Claims, Some Are Justiciable Under The Political  

                       Question Doctrine And Some Are Not.  



                       Deciding whether a claim is justiciable depends on the answers to several  



questions.  These include (1) whether deciding the claim would require us to answer  



                                

questions that are better directed to the legislative or executive branches of government  

(the "political question" doctrine),35 and (2) whether there are other reasons - such as  



            33	        See id. at 16-17.  



            34	        Id. at 17 (emphasis in original).  



            35         See   Alaska   Wildlife   Alliance   v.  State,  74  P.3d  201,  207  (Alaska  2003)  



(noting that "in Baker v. Carr [, 369 U.S. 186, 198 (1962)] the United States Supreme  

Court classified the political question doctrine as an issue of justiciability").  

                                                                       -14-	                                                                      6953  


----------------------- Page 15-----------------------

                                                            

ripeness, mootness, or standing - that persuade us that, though the case is one we are  

institutionally capable of deciding, prudence counsels that we not do so.36  



                                                               

                    "[T]he established principle that courts should not attempt to adjudicate  



                                                                                                 

'political  questions'  .  .  .  stems  primarily  from  the  separation  of  powers  doctrine,"  



                                              

particularly  "the  relationship  between  the  judiciary  and  the  coordinate  branches  of  



                                 37  

the . . . Government."                But "merely characterizing a case as political in nature will  



                                                                    38 

                                                                        Drawing exact boundaries between the  

[not] render it immune from judicial scrutiny." 



                                                              39 

                                                                                                          

political and the justiciable is not possible,                   but we come as close as we can by applying  



                                                                                                          40  

                                                                                                              In Baker the  

the test announced by the United States Supreme Court in Baker v. Carr . 



                                        

Supreme Court listed six elements, one or more of which will be "prominent on the  



surface" of any case involving a political question:   



          36        See  McDonnell  v.   State  Farm  Mut.  Auto.  Ins.  Co.,  299  P.3d  715,  724  



(Alaska  2013)  ("A  justiciable  controversy  is  one  that  is  not  hypothetical,  abstract,  

academic, or moot."); State v. Am. Civil Liberties Union of Alaska, 204 P.3d 364, 368-69  

(Alaska 2009) ("We have similarly recognized that a case is justiciable only if it has  

matured to a point that warrants decision.").  



          37        Abood v. League of Women Voters of Alaska , 743 P.2d 333, 336 (Alaska  



1987) (quoting Malone v. Meekins , 650 P.2d 351, 356 (Alaska 1982); Baker v. Carr, 369  

                                                     

U.S.  186, 210 (1962)) (internal quotation marks omitted).  



          38        Malone , 650 P.2d at 356.  



          39  

                                                             

                    State, Dep't of Natural Res. v. Tongass Conservation Soc'y, 931 P.2d 1016,  

                                                                                                 

1018 (Alaska 1997); see also League of Women Voters, 743 P.2d at 336 ("Justiciability  

                                                                                       

is  of  course  not  a  legal  concept  with  a  fixed  content  or  susceptible  of  scientific  

                           

verification.    Its  utilization  is  the  resultant  of  many  subtle  pressures,  including  the  

                                                                                                                 

appropriateness of the issues for decision . . . and the actual hardship to the litigants of  

                                                                                                   

denying them the relief sought." (quoting Poe v. Ullman , 367 U.S. 497, 508-09 (1961))  

(internal quotation marks omitted)).  



          40        369 U.S. at 217; see, e.g., Tongass Conservation, 931 P.2d at 1018; League  



of Women Voters, 743 P.2d at 336; Malone , 650 P.2d at 356-57.  

                                                             -15-                                                           6953  


----------------------- Page 16-----------------------

                    [1] a textually demonstrable constitutional commitment of the  

                    issue to a coordinate political department; or [2] a lack of  

                    judicially       discoverable         and      manageable          standards        for  

                    resolving it; or [3] the impossibility of deciding without an  

                                                                                              

                    initial policy determination of a kind clearly for nonjudicial  

                    discretion; or [4] the impossibility of a court's undertaking  

                                      

                    independent resolution without expressing lack of the respect  

                                                                                               

                    due coordinate branches of government; or [5] an unusual  

                    need  for  unquestioning  adherence  to  a  political  decision  

                             

                    already made; or [6] the potentiality of embarrassment from  

                                                                                

                    multifarious pronouncements by various departments on one  

                                                                  

                                  [41] 

                    question.  



                                                                                                                

"Unless one of these formulations is inextricable from the case at bar, there should be no  



                                                                                                                        42  

dismissal for non-justiciability on the ground of a political question's presence."                                         



                                                                                                            43 

                                                                                      

                    Applying the Baker inquiry and conducting de novo review,                                  we hold that  



                                                                                          

the superior court was correct in concluding that three of the plaintiffs' claims were non- 



justiciable; but it erred when it relied on the same grounds to dismiss the other four  



claims.  



                                                                    

                    1.	       Three of the plaintiffs' claims are non-justiciable because they  

                              involve policy questions that fall within the competence of other  

                              branches of government.  



                    Among the plaintiffs' claims in this case are requests that the superior court  



(1) declare that the State's obligation to protect the atmosphere be "dictated by best  



                                                                      

available science and that said science requires carbon dioxide emissions to peak in 2012  



and  be  reduced  by  at  least  6%  each  year  until  2050";  (2)  order  the  State  to  reduce  



          41	       Baker , 369 U.S. at 217.  



          42	       Id.  



          43        State, Dep't of Corr. v. Heisey              , 271 P.3d 1082, 1085 (Alaska 2012) (citing  



Bradshaw v. State, Dep't of Admin., Div. of Motor Vehicles                              , 224 P.3d 118, 122 (Alaska  

2010)).  

                                                              -16-	                                                          6953  


----------------------- Page 17-----------------------

emissions "by at least 6% per year from 2013 through at least 2050"; and (3) order the           



State  "to  prepare  a  full  and  accurate  accounting  of  Alaska's  current  carbon  dioxide  



emissions and to do so annually thereafter."  We conclude that these three claims are  



                                                                                                                                 

non-justiciable  under  several  of  the  Baker  factors,  most  obviously  the  third:    "the  



                                                                      

impossibility of deciding [them] without an initial policy determination of a kind clearly  



                                           44  

for nonjudicial discretion."                   



                     The United States Supreme Court has clarified that the Baker factors are to  

                                                                                  



be applied in light of the purpose of the political question doctrine, which is to "exclude[]  

                                                                                                                  



from judicial review those controversies which revolve around policy choices and value  

                                                                                        



determinations constitutionally committed for resolution to the halls of Congress or the  

                                                                                                                                 

                                                        45   In line with that purpose, the Ninth Circuit has  

confines of the Executive Branch."  

                                                                                                        



observed that the third Baker factor is implicated "when, to resolve a dispute, the court  



must make a policy judgment of a legislative nature, rather than resolving the dispute  

                       

through legal and factual analysis."46  While the science of anthropogenic climate change  

                                                                                                                   

is compelling,47 government reaction to the problem implicates realms of public policy  

                                                            



           44        Baker , 369 U.S. at 217.  



           45        Japan Whaling Ass'n v. Am. Cetacean Soc'y , 478 U.S. 221, 230 (1986).  



           46        Equal Emp't Opportunity Comm'n v. Peabody W. Coal Co.                                        , 400 F.3d 774,  



784 (9th Cir. 2005).  



           47        See, e.g., Massachusetts v. EPA, 549 U.S. 497, 523 (2007) (noting that  



"EPA  does  not  dispute  the  existence  of  a  causal  connection  between  manmade  

greenhouse gas emissions and global warming"); Ctr. for Biological Diversity v. Nat'l  

                                                                                       

Highway  Traffic  Safety  Admin. ,  538  F.3d  1172,  1214  (9th  Cir.  2008)  (noting  that  

"NHTSA does not dispute that . . . 'fuel economy improvements could have a significant  

                                                                                                     

impact on the rate of CO2 accumulation in the atmosphere,' which would affect climate  

                                                                    

change"); INTERGOVERNMENTAL PANEL ON  CLIMATE CHANGE , CLIMATE CHANGE 2013:  

T 

                                                   

   HE PHYSICAL  SCIENCE BASIS , SUMMARY FOR POLICYMAKERS 15 (Thomas F. Stocker  

                                                                                                                    (continued...)  

                                                                 -17-                                                                6953  


----------------------- Page 18-----------------------

besides the objectively scientific.  The legislature - or an executive agency entrusted   



with  rule-making  authority  in  this  area  -  may  decide  that  employment,  resource  



                                                                                                    

development, power generation, health, culture, or other economic and social interests  



                             

militate against implementing what the plaintiffs term the "best available science" in  



                                                                                                           

order  to  combat  climate  change.    In  2007  Governor  Sarah  Palin  created  an  Alaska  



                

Climate Change Sub-Cabinet that acknowledged the serious effects of climate change  



                                                        

on  communities  and  resources  throughout  the  state  and  sought  input  from  advisory  



                                            

groups about mitigating the causes of climate change and adapting to its unavoidable  



             48  

                 While there is nothing in the record that would reflect progress on these issues  

effects.                                                                                                                      



at     the     state       level       since       2009,        when         the     advisory           groups         first     made         their  

              

recommendations,49 we note that federal agencies, too, have been specifically entrusted  



            47(...continued)  



et      al.       eds.,        2013),           available              at       http://www.ipcc.ch/report/ar5/wg1/  

docs/WGIAR5_SPM_brochure_en.pdf ("It is extremely likely that more than half of the  

                                                                                                                             

observed increase in global average surface temperature from 1951 to 2010 was caused  

by the anthropogenic increase in greenhouse gas concentrations and other anthropogenic  

                                                                             

forcings  together."  (emphasis  in  original));  William  R.  L.  Anderegg,  et  al.,  Expert  

Credibility  in  Climate  Change,  107  P.N.A.S.  12107,  12107-09  (2010),  available  at  

                                                         

http://www.pnas.org/content/107/27/12107.full.pdf   (surveying   the   publication   and  

citation data of 1,372 climate researchers and concluding that 97-98% of those most  

                                                                                  

actively  publishing  in  the  field  recognize  significant  human  contribution  to  climate  

change).  

                 



            48         See GOVERNOR  SARAH   PALIN 'S REPORT ON THE  CLIMATE  CHANGE  SUB - 



CABINET             (July       2008),          available           at     http://www.climatechange.alaska.gov/docs  

govrpt_jul08.pdf.     



            49         See  ALASKA    CLIMATE   CHANGE                              STRATEGY 'S   MITIGATION    ADVISORY  



                                                                                                             

GROUP , FINAL  REPORT :  GREENHOUSE  GAS  INVENTORY  AND  FORECAST  AND  POLICY  



                                                                                       

RECOMMENDATIONS  ADDRESSING  GREENHOUSE  GAS  REDUCTION  IN  ALASKA  (Aug.  

2009),          available            at      http://www.climatechange.alaska.gov/mit/O97F21995.pdf;  

I 

                                                            

 MMEDIATE ACTION WORKGROUP,RECOMMENDATION TO THE GOVERNOR 'S SUBCABINET  

                                                                                                                               (continued...)  

                                                                       -18-                                                                       6953  


----------------------- Page 19-----------------------

with the task of addressing climate change and are developing "goals" and "guidelines"  



                                  50  

                     

                                                                                                           

for the states to follow.            We cannot say that an executive or legislative body that weighs  



                                                                                                                  

the benefits and detriments to the public and then opts for an approach that differs from  



                                                                          

the plaintiffs' proposed "best available science" would be wrong as a matter of law, nor  



                                                                                   

can we hasten the regulatory process by imposing our own judicially created scientific  



               51  

standards.          The underlying policy choices are not ours to make in the first instance.   



                                                                                                           

                    In American Electric Power Co. v. Connecticut ("AEP "), the United States  



Supreme  Court  reviewed  nuisance  claims  brought  against  certain  major  emitters  of  



                                                                                                                 52  

carbon dioxide, claims the district court had dismissed as non-justiciable.                                           Like the  



                                                                                                              

plaintiffs here, the plaintiffs in AEP had asked the court to issue "a decree setting carbon- 



                                                                                                                                 53  

                                                                                                     

dioxide emissions for each defendant at an initial cap, to be further reduced annually." 



          49(...continued)  



O  N       C L  I  M  A  T  E       C H  A  N  G  E         ( M a r .          2 0 0 9 ) ,         a v a i l a b l e           a t   

http://www.climatechange.alaska.gov/docs/iaw_finalrpt_12mar09.pdf.  



          50        See Carbon Pollution Emission Guidelines for Existing Stationary Sources:  



Electric Utility Generating Units, 79 Fed.  Reg.  34830 (proposed June 18,                                      2014) (to be  

codified at 40 C.F.R. pt. 60) ("[T]he EPA is  proposing state-specific rate-based goals for  

carbon dioxide emissions from the pow                     er s  ector, as well as guidelines for states to follow  

in  developing  plans to         achieve th     e state-specific goals."); id. at 34868 (showing proposed  

state goals for Alaska).  



          51  

                                                          

                    See Svitak ex rel. Svitak v. State, No. 69710-2-1, 2013 WL 6632124, at *2  

                                                                                  

(Wash. App. Dec. 16, 2013) (noting in a similar case that the plaintiff "wants this court  

                                  

to accelerate the pace and extend greenhouse gas reduction by ruling that the State has  

a  fiduciary  duty  to  protect  and  preserve  the  atmosphere  from  harm  due  to  climate  

change" but that the underlying public policy   questions are committed to legislative  

authority).  



          52         131 S. Ct. 2527, 2534 (2011).  



          53        Id. at 2532.  



                                                              -19-                                                             6953  


----------------------- Page 20-----------------------

 Concluding that the claims fell under the discretion of the Environmental Protection  



 Agency, the Supreme Court explained why the courts should therefore hold back:  



                     The  appropriate  amount  of  regulation  in  any  particular  

                     greenhouse gas-producing sector cannot be prescribed in a  

                     vacuum: as with other questions of national or international  

                     policy,   informed   assessment   of   competing   interests   is  

                     required.  Along with the environmental benefit potentially  

                                    

                     achievable, our Nation's energy needs and the possibility of  

                                                                              

                     economic disruption must weigh in the balance.  

                              . . . .  



                     EPA  [is]  best  suited  to  serve  as  primary  regulator  of  

                     greenhouse gas emissions.  The expert agency is surely better  

                     equipped to do the job than individual district judges issuing  

                     ad  hoc,  case-by-case  injunctions.    Federal  judges  lack  the  

                                  

                     scientific, economic, and technological resources an agency  

                                                                               

                     can utilize in coping with issues of this order.  Judges may  

                                                     

                     not  commission  scientific  studies  or  convene  groups  of  

                     experts for advice, or issue rules under notice-and-comment  

                                                             

                     procedures inviting input by any interested person, or seek  

                     the counsel of regulators in the States where the defendants  

                                           

                     are  located.    Rather,  judges  are  confined  by  a  record  

                                                                                     [54] 

                     comprising the evidence the parties present.  



                   This court, too, "lack[s] the scientific, economic, and technological resources  



                                                                                          

an agency can utilize"; we too "are confined by [the] record" and "may not commission  



                                                                                       

scientific studies or convene groups of experts for advice, or issue rules under notice-and- 



                                      

comment  procedures."                 The  limited  institutional  role  of  the  judiciary  supports  a  



conclusion that the science- and policy-based inquiry here is better reserved for executive- 



                                                                                                         

branch agencies or the legislature, just as in AEP the inquiry was better reserved for the  



EPA.  The superior court thus did not err when it concluded that three of the plaintiffs'  



                                                                                                             

claims - (1) that the State's duty to protect the atmosphere is "dictated by best available  



                                                                                                              

science," (2) that "best available science" requires annual reductions of 6% in the State's  



           54       Id. at 2539-40 (citation omitted).  



                                                             -20-                                                       6953  


----------------------- Page 21-----------------------

                                                                                                  

carbon dioxide emissions until 2050, and (3) that the State must annually account for  



carbon dioxide emissions statewide - should be dismissed as non-justiciable.  



                    2.	      The plaintiffs' claims for a declaratory judgment on the nature  

                             of the public trust doctrine do not present political questions.  



                                                                            

                    The plaintiffs' remaining four claims, however, are for relief of the sort that  



                                                                                       

is  within  the  institutional  competence  of  the  judiciary:                       a  declaratory  judgment  that  



(1) "the atmosphere is a public trust resource under [a]rticle VIII"; (2) the State therefore  



"has an affirmative fiduciary obligation to protect and preserve" it; (3) the State's duty  



                                                                

is "enforceable by citizen beneficiaries of the public trust"; and (4) with regard to the  



atmosphere, the State "has failed to uphold its fiduciary obligation."  



                    Our  case  law  traces  the  public  trust  doctrine  to  "historic  common  law  



principles governing the sovereign's authority over management of fish, wildlife and  



water resources," principles our framers "constitutionalized" in Alaska's common use  



                                                                               

clause, article VIII, section 3:  "Whenever occurring in their natural state, fish, wildlife,  



                                                                               55 

                                                                                   "We have frequently compared  

and waters are reserved to the people for common use." 



                                                                                                                     

the state's duties as set forth in [a]rticle VIII to a trust-like relationship in which the state  



                                                

holds natural resources such as fish, wildlife, and water in 'trust' for the benefit of all  



                56  

                    While "[a]rticle VIII does not explicitly create a public trust[,] . . . we have  

Alaskans."                                                                                                          



used the analogy of a public trust to describe the nature of the state's duties with respect  

                                                                                      



                                                                                             57  

to wildlife and other natural resources meant for common use."                                          



           55        Owsichek v. State, Guide Licensing & Control Bd.                             , 763 P.2d 488, 494  



 (Alaska 1988).  



           56        Brooks v. Wright , 971 P.2d 1025, 1031 (Alaska 1999) (citing McDowell v.  

                                 

 State, 785 P.2d 1, 18 (Alaska 1989); Herscher v. State, Dep't of Commerce , 568 P.2d  

                                  

 996, 1002-03 (Alaska 1977)).  



           57        Id. at 1033.  



                                                              -21-                                                          6953  


----------------------- Page 22-----------------------

                                                                                                                              

                     That we interpret the public trust doctrine in a constitutional context is thus  



                                                                                                                      

well established.  The Baker factors for identifying non-justiciable issues do not apply to  



                                                                   58  

judicial interpretations of the constitution.      Indeed, "[u]nder Alaska's constitutional  



structure of government, 'the judicial branch . . . has the constitutionally mandated duty  



                                                                                                                59  

to ensure compliance with the provisions of the Alaska Constitution.' "                                             In this case,  



                                                                                                           

therefore, the plaintiffs' claims seeking primarily an interpretation of article VIII and the  



public trust doctrine do not present non-justiciable political questions.  



                     In Baxley v. State we observed:   "The public trust doctrine provides that the  



                               

 State holds certain resources (such as wildlife, minerals, and water rights) in trust for  



                                                                                                       

public use, 'and that government owes a fiduciary duty to manage such resources for the  



                                                                    60  

                                                                                                           

common good of the public as beneficiary.' "                            We thus described the content of the trust,  



                                                                                                       

the State's duty as trustee, and the public's status as beneficiary - reflecting three of the  



                                                                                                                

plaintiffs' claims for declaratory relief in this case.  And in State v. Weiss we held that the  



                                                                                                                       

 State had breached its fiduciary duty as trustee when it commingled public trust lands  



with general grant lands (though the public trust at issue was one expressly created by  



            58        Specifically,  (1)  the  Alaska  Constitution  does  not  commit  the  task  of  



  constitutional interpretation to another branch; (2) there are obvious judicial standards  

                                                                                          

  for constitutional construction; (3) constitutional construction does not require policy  

  determinations that fall under nonjudicial discretion; (4) it is quite possible for a court  

                                                                                                                             

  to  reach  an  independent  resolution  of  a  constitutional  question  without  expressing  

                                                                    

  disrespect to the other branches; (5) constitutional issues should not entail an unusual  

                                                                                                             

  need  for  unquestioning  adherence  to  political  decisions,  in  fact  the  opposite;  and  

  (6) because no other branch of government is charged with the task of interpreting the  

                                                                          

  constitution, there is no risk of conflicting interpretations from other branches.  



            59  

                                                                                                                     

                      State, Dep't of Health & Soc. Servs. v. Planned Parenthood of Alaska, Inc.,  

                       

  28 P.3d 904, 913 (Alaska 2001) (quoting Malone v. Meekins , 650 P.2d 351, 356 (Alaska  

  1982)).  



            60  

                                                                                                                  

                      958 P.2d 422, 434 (Alaska 1998) (quoting McDowell , 785 P.2d at 16 n.9  

  (Rabinowitz, J., dissenting)).  

                                                                 -22-                                                              6953  


----------------------- Page 23-----------------------

                                                                                                                    61  

                            

federal law, not the public trust implied from constitutional principles).                                               Whether the  



                                                                                  

State has breached a legal duty is a question we are well equipped to answer - assuming  

the extent of the State's duty can be judicially determined in the first place.62  



           D.	        The  Claims  For  Declaratory  Relief,  Though  Justiciable  Under  The  

                      Political Question Doctrine, Should Nonetheless Have Been Dismissed  

                      On Prudential Grounds.  



                                                        

                     As noted above, the justiciability of a claim for declaratory relief requires  



                  

more than the conclusion under Baker v. Carr that the case does not involve a political  



question; also required is an "actual controversy," one that "is appropriate for judicial  



                                                                                                                

determination" because it is "definite and concrete, touching the legal relations of parties  



                                                                         

having adverse legal interests. . . . It must be a real and substantial controversy admitting  



                                           

of specific relief through a decree of a conclusive character, as distinguished from an  



            61         706 P.2d 681, 684 (Alaska 1985).  Our use of common-law trust principles   



 to define the State's duty in                Weiss  - as we have done in other cases involving the public   

 trust  doctrine  implied  from  article  VIII  -  further  illustrates  the  justiciability  of  the  

 claims in such cases:  the courts have the traditional tools, from the constitution or the  

                                      

 common law, to decide them.  Cf. Brooks, 971 P.2d at 1033 (rejecting "the wholesale  

 application  of  private  trust  law  principles  to  the  trust-like  relationship  described  in  

  [a]rticle VIII [as] inappropriate and potentially antithetical to the goals of conservation  

                                                                                                 

 and universal use").  



            62         Other  courts  have  recently  reached  the  same  conclusion  about  the  



                                                                                       

 justiciability of these issues in cases involving similar claims.  See Chernaik v. Kitzhaber,  

                                                                                                       

 328 P.3d 799, 804-08 (Or. App. 2014) (holding that request for declaratory judgment on  

                                                                                                     

 whether atmosphere is subject to the public trust is justiciable, and remanding to the trial  

                                                                                                             

 court to make that determination in the first instance); Butler ex rel Peshlakai v. Brewer ,  

                                                        

 No. 1 CA CV 12-0347, 2013 WL 1091209, at *5 (Ariz. App. Mar. 14, 2013) ("Not only  

                                                                                                                          

 is it within the power of the judiciary to determine the threshold question of whether a  

 particular resource is a part of the public trust subject to the Doctrine, but the courts must  

 also determine whether based on the facts there has been a breach of the trust.").  

                                                                    -23-	                                                                6953  


----------------------- Page 24-----------------------

                                                                                                                           63  

                                                   

opinion  advising  what  the  law  would  be  upon  a  hypothetical  state  of  facts."                                         The  



                                                                                              

remaining  issue  for  us  to  address,  therefore,  is  whether  the  plaintiffs'  claims  for  



                                                                                                                       

declaratory judgment - absent the prospect of any concrete relief - still present an  



"actual controversy" that is appropriate for our determination.  We conclude they do not.  



                                                                              64  

                                                                                           

                    The Alaska Declaratory Judgment Act                          gives superior courts "the power to  

issue declaratory judgments in cases of actual controversy,"65 and Alaska Civil Rule 57(a)  



governs declaratory judgment procedure;66 both were intended to parallel their federal  



counterparts, and we therefore interpret them in light of pertinent federal authority.67  



                                                                                        

Under federal law, "[d]eclaratory relief is a nonobligatory remedy," and the district courts  



                                                                                                                       68  

                                                                                                                            "In the  

therefore have "an opportunity, rather than a duty," to grant declaratory relief. 



                                                          

declaratory  judgment  context,  .  .  .  the  normal  principle  that  federal  courts  should  



                                                                                                        

adjudicate claims within their jurisdiction yields to considerations of practicality and wise  



            63        Jefferson v. Asplund , 458 P.2d 995, 998-99 (Alaska 1969) (quoting                                     Aetna  



 Life Ins. Co. v. Haworth , 300 U.S. 227, 240-41 (1937)).  



            64        AS 22.10.020(g) provides, in part:  "In case of an actual controversy in the  

                                                                                              

 state, the superior court, upon the filing of an appropriate pleading, may declare the  

                                          

 rights and legal relations of an interested party seeking the declaration, whether or not  

 further relief is or could be sought."  



            65  

                                                                                                            

                      Brause v. State, Dep't of Health & Soc. Servs., Bureau of Vital Statistics ,  

 21 P.3d 357, 358 (Alaska 2001).  



            66        Civil  Rule  57(a)  provides,  in  part:    "The  procedure  for  obtaining  a  



                                                                            

 declaratory judgment pursuant to statute shall be in accordance with these rules . . . . The  

                                                                    

 existence of another adequate remedy does not preclude a judgment for declaratory relief  

 in cases where it is appropriate."  



            67        Lowell v. Hayes , 117 P.3d 745, 755 (Alaska 2005).  



            68  

                                                                             

                      Id. at 756 (quoting  Wilton v. Seven Falls Co., 515 U.S. 277, 288 (1995))  

 (internal quotation marks omitted).  

                                                                -24-                                                              6953  


----------------------- Page 25-----------------------

judicial administration." 69 And "[a] court that 'know[s] at the commencement of litigation  



                                                                                                                                

that it will exercise its broad statutory discretion to decline declaratory relief[]' need not  



                                                                                                                              

undertake a 'wasteful expenditure of judicial resources' in 'the futile exercise of hearing  



                                             70  

a case on the merits first.' "                   These prudential considerations guide our courts.  



                                                                                                                 

                      We recognize that in this case the superior court did not rely on prudential  



grounds  when  it  dismissed  the  plaintiffs'  claims  for  declaratory  relief;  rather  than  



exercising the discretion available to it, the court dismissed the entire lawsuit on political  



                                                            71  

question  grounds,  which  was  error.                            Ordinarily,  "a  trial  court's  failure  to  exercise  



                                                                                                72  

                                                                                                    In State v. American Civil  

available discretion amounts to an abuse of that discretion." 



                                                                                         

Liberties Union of Alaska , however, we clarified that when a superior court's decision  



whether to grant declaratory relief depends on prudential grounds such as ripeness, we  



                                                                                                                                          73  

                                      

review the decision de novo, because "this court is the ultimate arbiter of such issues." 



Whether the superior court exercised its available discretion is thus irrelevant to our  



review.   



            69         Id. (quoting  Wilton, 515 U.S. at 288) (internal quotation marks omitted).  



            70         Id. (quoting  Wilton, 515 U.S. at 287-88) (first alteration in original).  



            71         "The decision to dismiss a suit because it involves a nonjusticiable political   



  question is a question of law, subject to independent review."                                       N. Kenai Peninsula Rd.  

  Maint. Serv. Area v. Kenai Peninsula Borough , 850 P.2d 636, 639 (Alaska 1993).  



            72  

                                                                                   

                       Snyder v. Am. Legion Spenard Post No. 28, 119 P.3d 996, 1004 (Alaska  

  2005) (Bryner, J., dissenting); see also Alaska Ctr. for the Env't v. Rue , 95 P.3d 924, 932  

  (Alaska 2004) (holding that commissioner's refusal to consider discretionary alternatives  

  available to him, because of an erroneous reading of the governing statutes, amounted  

  to an abuse of discretion).  



            73         204 P.3d 364, 368 (Alaska 2009) (citing Jacob v. State, Dep't of Health &  

                                                                                                                           

  Soc. Servs., Office of Children's Servs., 177 P.3d 1181, 1184 (Alaska 2008)).  

                                                                    -25-                                                                 6953  


----------------------- Page 26-----------------------

                                                                                               

                    We discussed prudential grounds for declining to grant declaratory relief in  



                          74  

Lowell v. Hayes .             We noted that "an action for declaratory relief is procedural and  



                                                                                            

remedial, not substantive," and that "[d]eclaratory judgments vindicate substantive rights  



                                          75  

                                                                               

- they do not create them."                   We emphasized "that declaratory judgments are rendered  



                                                                                                                     

to  clarify  and  settle  legal  relations,  and  to  'terminate  and  afford  relief  from  the  



uncertainty, insecurity, and controversy giving rise to the proceeding,' " and we stated  



                                                                                     

that "[a] court should decline to render declaratory relief when neither of these results can  

be accomplished."76  



                                                                             

                    Applying these criteria here militates against granting the declaratory relief  



that the plaintiffs request.  First, their request for a judgment that the State "has failed to  



                                                                                                                

uphold its fiduciary obligations" with regard to the atmosphere cannot be granted once  



                                                                   

the court has declined, on political question grounds, to determine precisely what those  



                                                                                                               

obligations entail.  As for the remaining claims - that the atmosphere is an asset of the  



                                                                                                    77 

                                                                                                       - the plaintiffs do  

public trust, with the State as trustee and the public as beneficiaries 



make a good case.  The Alaska Legislature has already intimated that the State acts as  



           74         117 P.3d at 754.  



           75        Id. at 757 (citing Jefferson v. Asplund , 458 P.2d 995, 997 (Alaska 1969)).  



           76        Id.  at 755 (quoting        Jefferson , 458 P.2d at 997-98);               see also CHARLES ALAN  



 WRIGHT  ET  AL .,   FEDERAL  PRACTICE  AND  PROCEDURE    2759  at  543  (3d  ed.  1998)  

  (quoting E                                  

                 DWIN BORCHARD , DECLARATORY JUDGMENTS 299 (2d ed. 1941)).  



           77        If the atmosphere is subject to the public trust doctrine, then the roles of the  

                                                                                                                    

  State and the public as trustee and beneficiaries, respectively, necessarily follow by  

 definition.  See Baxley v. State, 958 P.2d 422, 434 (Alaska 1998) ("The public trust  

 doctrine provides that the State holds certain resources (such as wildlife, minerals, and  

                                    

 water  rights)  in  trust  for  public  use,  'and  that  government  owes  a  fiduciary  duty  to  

 manage such resources for the common good of the public as beneficiary.' " (quoting  

               

 McDowell v. State , 785 P.2d 1, 16 n.9 (Alaska 1989) (Rabinowitz, J., dissenting))).  

                                                               -26-                                                            6953  


----------------------- Page 27-----------------------

                                                                                                                            78  

                                                                   

trustee with regard to the air just as it does with regard to other natural resources.                                          We  



                                                                                                           

note, however, that our past application of public trust principles has been as a restraint  



                                                                                                               

on the State's ability to restrict public access to public resources, not as a theory for  

compelling regulation of those resources, as the plaintiffs seek to use it here.79  



            78        The legislature declared in AS 46.03.010(b) that it is "the policy of the state  



  . . . to develop and manage the basic resources of water, land, and air to the end that the  

                                                                         

 state may fulfill its responsibility as trustee of the environment for the present and future  

 generations ."  (Emphasis added.)  AS 46.03.010(a) similarly provides - albeit without  

                                                                                 

 using trust language - that "[i]t is the policy of the state to conserve, improve, and  

                                                                               

 protect its natural resources and environment and control water, land, and air pollution,  

                                                                        

 in order to enhance the health, safety, and welfare of the people of the state and their  

 overall economic and social well-being."  Other courts have found similar statements to  

                                                                                                        

 manifest the public trust doctrine.  Save Ourselves, Inc. v. La. Envtl. Control Comm'n,  

                                                                                 

 452 So. 2d 1152, 1157 (La. 1984) ("The public trust doctrine was continued by the 1974  

                                                                                 

 Louisiana  Constitution,  which  specifically  lists  air  and  water  as  natural  resources,  

 commands protection, conservation and replenishment of them insofar as possible and  

                                     

 consistent  with  [the]  health,  safety  and  welfare  of  the  people,  and  mandates  the  

                                                 

 legislature to enact laws to implement this policy."); see Parks v. Cooper, 676 N.W.2d  

 823,  838  (S.D.  2004)  ("[W]e  find  the  public  trust  doctrine  manifested  in  the  South  

 Dakota[] Environmental Protection Act, authorizing legal action to protect 'the air, water  

                                                                                                                  

 and other natural resources and the public trust therein from pollution, impairment or  

 destruction.' ").  



            79  

                                                                         

                      See, e.g., State, Dep't of Natural Res. v. Alaska Riverways, Inc., 232 P.3d  

                                                                                                                             

  1203,  1211  (Alaska  2010)  ("The  right  to  wharf  out,  like  all  riparian  rights,  is  not  

 absolute, but is limited by the state's exercise of its authority under the public trust  

                                                                                                                    

 doctrine."); CWC Fisheries, Inc. v. Bunker, 755 P.2d 1115, 1121 (Alaska 1988) ("We  

                 

 hold that tidelands conveyed to private parties . . . were conveyed subject to the public's  

                         

 right to utilize those tidelands for purposes of navigation, commerce and fishery."); see  

                                                                                                           

 also Owsichek v. State, Guide Licensing & Control Bd., 763 P.2d 488, 496 (Alaska 1988)  

                                                                                                           

 ("[W]e conclude that the common use clause was intended to engraft in our constitution  

 certain trust principles guaranteeing access to the fish, wildlife and water resources of  

                                                                                               

 the state.  The proceedings of the Constitutional Convention, together with the common  

 law tradition on which the delegates built, convince us that a minimum requirement of  

                                                                                                                                  

 this duty is a prohibition against any monopolistic grants or special privileges."); but see  

                                                                                                                 (continued...)  

                                                                -27-                                                              6953  


----------------------- Page 28-----------------------

                                                         

                    Although declaring the atmosphere to be subject to the public trust doctrine  



                                                                              

could serve to clarify the legal relations at issue, it would certainly not "settle" them.  It  



                                                          

would have no immediate impact on greenhouse gas emissions in Alaska, it would not  



                                                                                                           

compel the State to take any particular action, nor would it protect the plaintiffs from the  



                                                                                                                   

injuries they allege in their complaint.  Declaratory relief would not tell the State what it  



                   

needs to do in order to satisfy its trust duties and thus avoid future litigation; conversely  



it would not provide the plaintiffs any certain basis on which to determine in the future  



whether the State has breached its duties as trustee.  In short, the declaratory judgment  



                                                                                                      

sought by the plaintiffs would not significantly advance the goals of "terminat[ing] and  



                                     

afford[ing]  relief from  the  uncertainty,  insecurity,  and  controversy  giving  rise  to  the  



proceeding" and would thus fail to serve the principal prudential goals of declaratory  

relief.80  



                    We  observed  in  Lowell  that  the  plaintiff's  lack  of  effective  "coercive  

                                                                   



remedies" (such as an action for damages) may support the issuance of declaratory relief  

instead;81 but the plaintiffs' lack of a damage remedy in this case does not lead to the same  

                                                                                                              



conclusion. A purpose of declaratory relief is to allow the parties to avoid future litigation  

                       



in which they would have to seek more coercive remedies.  Declaratory relief "permits  



                                                                                                          

actual controversies to be settled before they ripen into violations of law or a breach of  



                                                                                                                  

contractual duty and it helps avoid a multiplicity of actions by affording an adequate,  



          79(...continued)  



 Butler ex rel. Peshlakai v. Brewer , No. 1 CA CV 12-0347, 2013 WL 1091209, at *7  

                                                                                                              

 (Ariz. App. Mar. 14,  2013) (rejecting similar claims under Arizona law in part because  

                                                                                                                   

 the plaintiff's "essential challenge is to state inaction," and state public trust precedent  

 addresses only claims "that the state improperly disposed of a public trust resource"  

 (emphasis in original)).  



            80        See Lowell, 117 P.3d at 755 (internal quotation marks omitted).  



           81        Id. at 756.  



                                                                -28-                                                             6953  


----------------------- Page 29-----------------------

                                                                                                              

expedient, and inexpensive means for declaring in one action the rights and obligations  



                   82  

                                                                                                       

of litigants."         As already noted, the declaratory relief the plaintiffs seek here would not  



                               

serve these goals; it would not serve to declare expediently "in one action the rights and  



obligations of [the] litigants" and thus avoid further litigation.  Within the very general  



                                                                                     

framework of a public trust, "the rights and obligations of [the] litigants" with regard to  



                                                                                        

the atmosphere would depend on further developments - by the legislature, by executive  

branch agencies, and through litigation focused on more immediate controversies.83  



                                                                                                               

                    We also observe that if the plaintiffs are able to allege claims for affirmative  



                              

relief in the future that are justiciable under the political question doctrine, they appear  



                                                                              

to have a basis on which to proceed even  absent a declaration that the atmosphere is  



                                                                   

subject to the public trust doctrine.  In their complaint they allege that the atmosphere is  



inextricably  linked  to  the  entire  ecosystem,  and  that  climate  change  is  having  a  



detrimental impact on already-recognized public trust resources such as water, shorelines,  



                           84  

                                                                                                

wildlife, and fish.            Allegations that the State has breached its duties with regard to the  



           82         CHARLES  ALAN   WRIGHT ,   ET  AL .,   FEDERAL  PRACTICE  AND  PROCEDURE  



   2751 at 457-58 (3d ed. 1998).  



           83        See  RESTATEMENT  (THIRD)  OF  TRUSTS  71 cmt. d (2007) (stating that  



 although  trust  beneficiaries  may  apply  to  a  court  for  instructions  regarding  trust  

 administration, a court will not "instruct the trustee as to a question that may never arise,  

                                                                                                             

 or that may arise only in the future, unless some need is shown for current resolution of  

                            

 the matter");  but cf. Brooks v. Wright , 971 P.2d 1025, 1031-33 (Alaska 1999) (rejecting  

                                                                                   

 "the wholesale application of private trust law principles to the trust-like relationship  

                                                

 described in [a]rticle VIII [as] inappropriate and potentially antithetical to the goals of  

 conservation  and  universal  use,"  where  private  trust  law  principles  could  limit  the  

 influence of the public as beneficiaries).  

                                                                



           84        The State officially recognizes that "[t]he impacts of climate warming in  

                                                                                                       

 Alaska are already occurring" and that "[t]hese impacts include coastal erosion, increased  

 storm effects, sea ice retreat and permafrost melt."  Climate Change in Alaska, S 

                                                                                                                        TATE OF  

 ALASKA ,  http://www.climatechange.alaska.gov/  (last  visited  July  25,  2014).    These  

                                                                                                                (continued...)  

                                                                -29-                                                            6953  


----------------------- Page 30-----------------------

management  of  these  resources  do  not  depend  on  a  declaratory  judgment  about  the  



atmosphere.  In short, we are not convinced that declaratory relief on the scope of the  



                  

public trust doctrine, as requested in this case, will advance the plaintiffs' interests any  



more than it will shape the future conduct of the State.   



                                                                                

                   Concluding that there were valid prudential reasons to dismiss the plaintiffs'  



claims for declaratory judgment, we affirm the dismissal of their otherwise justiciable  

claims on that basis.85  



V.       CONCLUSION  



                   We AFFIRM the superior court's dismissal of the plaintiffs' complaint.  



         84(...continued)  



 effects  are  explored  in  F.  Stuart  Chapin  III  et  al.,  Chapter  22:  Alaska,  in  CLIMATE  

 CHANGE  IMPACTS  IN  THE  U.S.:     THE  THIRD  NAT 'L  CLIMATE  A SSESSMENT  514 (J. M.  

 Melillo        et    al.    eds.,     2014,),available            at    http://nca2014.globalchange.gov  

              

 system/files_force /downloads/low/NCA3_Full_Report_22_Alaska_LowRes.pdf.  

                             



           85       Irby v. Fairbanks Gold Mining, Inc. , 203 P.3d 1138, 1142 (Alaska 2009)  

                                              

 ("We can affirm a judgment on any appropriate basis, including grounds not relied on  

                 

 or raised in the lower tribunal.").  

                                                           -30-                                                       6953  

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