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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Hughes v. Treadwell (1/30/2015) sp-6981

Hughes v. Treadwell (1/30/2015) sp-6981

         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, email  

                                                                                 

         corrections@akcourts.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



RICHARD HUGHES, THE ALASKA )  

MINERS ASSOCIATION, and THE                         )        Supreme Court No. S-15468  

COUNCIL OF ALASKA                                   )  

                                    

PRODUCERS,                                          )        Superior Court No. 4FA-13-01296 CI  

                                                    )  

                 Appellants,                        )        O P I N I O N  

                                                    )  

         v.                                         )       No. 6981 - January 30, 2015  

                                                    )  

MEAD TREADWELL,                                     )  

LIEUTENANT GOVERNOR OF                              )
  

THE STATE OF ALASKA, THE                            )
  

STATE OF ALASKA, DIVISION                           )
  

OF ELECTIONS, CHRISTINA                             )
  

                                            

SALMON, MARK NIVER,                                 )
  

and JOHN H. HOLMAN,                                 )
  

                                                    )
  

                 Appellees.                         )
  

                                                    )
  



                 Appeal  from  the  Superior  Court  of  the  State  of  Alaska,  

                 Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge.   



                 Appearances:   Matthew   Singer   and   Robert   J.   Misulich,  

                 Jermain      Dunnagan        &     Owens,      P.C.,    Anchorage,        for  

                 Appellants.      Elizabeth   M.   Bakalar,   Assistant   Attorney  

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

                 for Appellees Lieutenant Governor Mead Treadwell and the  

                                                                 

                 State   of   Alaska,   Division   of   Elections.      Timothy   A.  

                 McKeever and Scott M. Kendall, Holmes Weddle & Barcott,  

                                      

                 P.C.,  Anchorage,  for  Appellees  Christina  Salmon,  Mark  

                 Niver, and John H. Holman.  


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

                   Before:  Winfree, Stowers, Maassen, and Bolger, Justices.  

                    [Fabe, Chief Justice, not participating.]  



                   STOWERS, Justice.  



I.        INTRODUCTION  



                   Richard Hughes, the Alaska Miners Association, and the Council of Alaska  

                                                                                                                 



Producers (collectively referred to as "Hughes") challenged Lieutenant Governor Mead  

                                                                                                       



Treadwell's certification of a ballot initiative that would require final legislative approval  



for any large-scale metallic sulfide mining operation located within the Bristol  Bay  

                                                                                                             



watershed.  Hughes argued that the initiative violates the constitutional prohibitions on  

                                                                                                        



appropriation  and  enacting  local  or  special  legislation  by  initiative.                         Following  oral  

                                                                                                        



argument we issued an order affirming the superior court's summary judgment order in  

                                                                           



favor of the State and the initiative sponsors,  and allowing preparation of ballots to  

                                                                     



             1                                                      2  

proceed.   This opinion explains our reasoning.  



II.       FACTS AND PROCEEDINGS  



                   In  October  2012  Lieutenant  Governor  Mead  Treadwell  received  an  



application for an initiative entitled "Bristol Bay Forever"; the Division of Elections  

                            



denominated the initiative "12BBAY."  The stated purpose of the initiative was to enact  

                                                                                          



law "providing for [the] protection of Bristol Bay wild salmon and waters within or  

                                                      



flowing into the existing 1972 Bristol Bay Fisheries Reserve."  Section 1 of the initiative  



would add the following new section to AS 38.05:  



          1        Hughes v. Treadwell , 328 P.3d 1037 (Alaska 2014).  



          2        The      initiative     was      passed      by     a   majority       of    the    voters      in    the  



November 4, 2014 general election.  



                                                             -2-                                                         6981  


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

                             Sec.  38.05.142.  Legislative  approval  required  for  

                   certain large scale mines.  



                                                       

                             (a) In addition to permits and authorizations otherwise  

                                                                                   

                   required by law, a final authorization must be obtained from  

                   the  legislature  for  a  large-scale  metallic  sulfide  mining  

                   operation  located  within  the  watershed  of  the  Bristol  Bay  

                   Fisheries  Reserve  designated  in  AS  38.05.140(f).    This  

                   authorization  shall  take  the  form  of  a  duly  enacted  law  

                                                                                         

                   finding that the proposed large-scale metallic sulfide mining  

                                                                                       

                   operation will not constitute danger to the fishery within the  

                                                                                  

                   Bristol Bay Fisheries Reserve.  



                             (b)  The  commissioner  may  adopt  regulations  under  

                   AS 44.62 to implement this section.  



                             (c) In this section, "large-scale metallic sulfide mining  

                                                                           

                   operation"  means  a  specific  mining  proposal  to  extract  

                   metals, including gold and copper, from sulfide-bearing rock  

                                              

                   that would directly disturb 640 or more acres of land.  



Section 2 would amend the "uncodified law of the State of Alaska" to make findings  



recognizing the ecological and economic importance of the Bristol Bay Fisheries Reserve  

and  the  potential  adverse  effects  of  metallic  sulfide  mining.3  

                                                                                                 After  review  by  the  



                                                                                                       

Department of Law - which concluded that the initiative did not make an appropriation  



                         

or enact local or special legislation and violated no other constitutional provisions - the  



Lieutenant Governor certified 12BBAY.  



                   In January 2013 Hughes challenged 12BBAY's certification in superior  



                                                                                               

court, arguing that the initiative "constitutes impermissible local and special legislation  



                   

and violates the separation of powers doctrine."  Hughes amended his complaint several  



times, joining the Alaska Miners Association and the Council of Alaska Producers as  



          3  

                                                                                                  

                    Sections 3-5 of the initiative are not important to this appeal.  Section 3 is  

a  grandfather  clause  that  would  protect  existing  mining  operations.    Section  4  is  a  

severability provision.  Section 5 proposes an effective date.  



                                                             -3-                                                          6981  


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

plaintiffs.     Initiative  sponsors  Christina  Salmon,  Mark  Niver,  and  John  H.  Holman  



moved to intervene as defendants; the superior court granted their unopposed motion.  



                                                                                                           

In February the initiative sponsors moved for summary judgment.  They then filed a  



                                                                           

separate answer to the amended complaint in March.  In August Hughes cross-moved for  



summary judgment.  In January 2014 Hughes filed a third amended complaint, adding  



a claim that 12BBAY would unconstitutionally appropriate state assets, and again moved  



for summary judgment.  



                   Considering his motions for summary judgment together, Hughes argued  



that 12BBAY would:  (1) enact local or special legislation in violation of article XI,  



                                                                                        

section 7 of the Alaska Constitution; (2) violate separation of powers under article XII,  



                                                                                                           

section 11 of the Alaska Constitution; and (3) appropriate state assets in violation of  



article  XI,  section  7  of  the  Alaska  Constitution.    The  superior  court  concluded  that  



                                                                   

12BBAY  would  not  enact  local  or  special  legislation,  would  not  clearly  violate  



separation  of  powers,  and  would  not  appropriate  public  assets.    The  court  granted  



                                                                                                   

summary judgment in favor of the State and the initiative sponsors and declined to enjoin  



                 

placement of 12BBAY on the ballot.  Hughes appeals to this court, challenging the  



superior  court's  conclusions  that  12BBAY  would  not  make  an  unconstitutional  



appropriation of public assets or enact local or special legislation.  



III.      STANDARD OF REVIEW  



                                                             

                   We review a superior court's summary judgment decision de novo, reading  



                                                                                                 

the record in the light most favorable to, and drawing all reasonable inferences in favor  



                                      4  

                                         Ballot initiatives are subject to pre-election review only  

of, the non-moving  party. 



"where the initiative is challenged on the basis that it does not comply with the state  

                                                                      



         4         Pebble  Ltd.  P'ship  ex  rel.  Pebble  Mines  Corp.  v.  Parnell ,  215  P.3d  



1064, 1072 (Alaska 2009) (citing Anchorage Citizens for Taxi Reform v. Municipality  

of Anchorage, 151 P.3d 418, 422 (Alaska 2006)).  



                                                           -4-                                                         6981  


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

                                                                                                   

constitutional and statutory provisions regulating initiatives" or "where the initiative is  

                                                                       5   The constitutionality of a ballot initiative  

clearly unconstitutional or clearly unlawful."                                                                   



is a question of law, which we review using our independent judgment, "adopting the  



                                                                                                                                 6  

                                                                                                                                     We  

rule  of  law  that  is  most  persuasive in light of precedent,  reason,  and  policy." 



                                                                                                                          7 

"construe voter initiatives broadly so as to preserve them whenever possible."   And "we  



liberally  construe  constitutional  and  statutory  provisions  that  apply  to  the  initiative  



               8  

                                                                                    

process."         However, whether an initiative complies with article XI, section 7's limits on  

the right of direct legislation requires careful consideration.9  



IV.        DISCUSSION  



                                                                                                                

                      Article XI, section 1 of the Alaska Constitution provides that "[t]he people  



may propose and enact laws by the initiative."  But article XI, section 7 creates several  



                                                                                                               

specific restrictions on this power: "The initiative shall not be used to dedicate revenues,  



make or repeal appropriations, create courts, define jurisdiction of courts or prescribe  



           5         Alaskans for Efficient Gov't, Inc. v. State                      , 153 P.3d 296, 298 (Alaska 2007)   



(quoting State v. Trust the People, 113 P.3d 613, 614 n.1 (Alaska 2005)).  



           6         Pebble Ltd. P'ship , 215 P.3d at 1072 (citing Anchorage Citizens for Taxi  



Reform , 151 P.3d at 422).  



           7         Id. at 1073 (quoting Anchorage Citizens for Taxi Reform , 151 P.3d at 422)  



(internal quotation marks omitted).  



           8         Kodiak Island Borough v. Mahoney , 71 P.3d 896, 898 (Alaska 2003) (citing  



Brooks  v.  Wright ,  971  P.2d  1025,  1027  (Alaska  1999); Interior  Taxpayers  Ass'n  v.  

Fairbanks North Star Borough , 742 P.2d 781, 782 (Alaska 1987)).  



           9  

                                                                                                             

                     Pebble  Ltd.  P'ship , 215  P.3d  at 1073  ("[I]nitiatives  touching  upon  the  

allocation  of  public  revenues  and  assets  require  careful  consideration  because  the  

constitutional right of direct legislation is limited by the Alaska Constitution." (quoting  

                                                                    

Anchorage  Citizens  for  Taxi  Reform ,  151  P.3d  at  422)  (internal  quotation  marks  

                                                                                       

omitted)).  



                                                                   -5-                                                             6981
  


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

their rules, or enact local or special legislation."  Here, Hughes argues that 12BBAY  



                                             

violates article XI, section 7's prohibition on appropriation by initiative and on enacting  



                                                                                             

local  or  special  legislation  by  initiative.                We  conclude  that  12BBAY  would  not  



appropriate state assets or enact local or special legislation.  



          A.	      12BBAY Does Not Violate Article XI, Section 7's Anti-Appropriation  

                   Clause.  



                   Hughes  argues  that  12BBAY  violates  the  anti-appropriation  clause  of  



article   XI,   section   7   because   it   impermissibly   interferes   with   the   legislature's  



appropriation authority.  Hughes contends that "12BBAY would set aside the entire  



                                                        

Bristol Bay Watershed for the purpose of propagating salmon" and "would immediately  



ban new large-scale hardrock mining in this vast area without any further legislative  



                                                                                              

action."  The State and sponsors respond that 12BBAY is not an appropriation because  



                  

it regulates rather than allocates resources, expressly leaving final authority to allocate  



state resources with the legislature.  



                   We employ a two-part inquiry to determine whether an initiative makes an  



                                                                                                  10  

                                                                                                        First  we  must  

appropriation  of  state  assets  in  violation  of  article  XI,  section  7. 



                                                                                      11  

determine "whether the initiative deals with a public asset."     Second, if the initiative  



                                                                                

deals  with  a  public  asset,  then  we  must  determine  "whether  the  initiative  would  

                                 12  None of the parties dispute the superior court's conclusion that  

appropriate that asset."                         



"12BBAY  concerns  a  'public  asset.'  "    As  the  superior  court  noted,  "[w]hether  the  

                 



initiative is construed as one that affects fish, waters of the state or state lands, each of  

                                                                                      



          10       Id. (citing Anchorage Citizens for Taxi Reform , 151 P.3d at 422).  



          11       Id. (quoting Anchorage Citizens for Taxi Reform , 151 P.3d at 422) (internal   



quotation marks omitted).  



          12       Id. (quoting Anchorage Citizens for Taxi Reform , 151 P.3d at 423) (internal  



quotation marks omitted).  



                                                            -6-	                                                     6981
  


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

these resources is a public asset."13  The issue here is whether 12BBAY appropriates fish,  

                                                   

                                                                           



waters of the state, or state lands.  



                                                                            

                   In evaluating whether an initiative that deals with a state asset appropriates  



                                                                                                      

that asset, we look to "two core objectives" of the prohibition against appropriation by  



              14  

                  Those objectives are (1) "to prevent give-away programs that appeal to the  

initiative.                                                                                                 

self-interest of voters and endanger the state treasury,"15  and (2) "to preserve legislative  

                                                                                             



discretion by ensur[ing] that the legislature, and only the legislature, retains control over  

                                                                              16   Hughes does not challenge the  

                                                                                                      

the allocation of state assets among competing needs."  



superior  court's  conclusion  that  12BBAY  is  not  a  give-away  program.    And  that  

                                                                                                



conclusion is clearly correct:  12BBAY does not give away state resources to voters or  

                                                                                                              

to any particular group, person, or entity.17  Thus, the only remaining question is whether  

                                                                                                   



12BBAY impermissibly interferes with the legislature's control over allocation of state  

                                                                                                     



assets.  



          13       See id. at 1073-74 (holding that "the waters of the state are a public asset,"  



and noting  that  "[this court  has]  previously determined that  public land, public revenue,  

a  municipally-owned  utility,  and  wild  salmon  are  all  public  assets  that  cannot  be  

appropriated by initiative" (footnotes omitted)).  



          14       Id.  at  1074-75  (citing  Anchorage  Citizens  for  Taxi  Reform ,  151  P.3d  



at 423).  



          15       Id. (quoting Anchorage Citizens for Taxi Reform , 151 P.3d at 423).  



          16       Id.    (emphasis   in   original)   (quoting  McAlpine   v.   Univ.   of   Alaska ,  



762 P.2d 88 (Alaska 1988)) (internal quotation marks omitted).  



          17       See City of Fairbanks v. Fairbanks Convention & Visitors Bureau, 818 P.2d  



1153, 1157 (Alaska 1991) (concluding that an initiative was not a give-away program  

because "[n]o particular group or person or entity [was] targeted to receive state money  

or property, nor [was] there any indication that by passing [the] initiative, the voters  

would be voting themselves money").  



                                                             -7-                                                      6981
  


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

                                                                                                         

                    Hughes  argues  that  because  the  legislature  delegated  the  allocation  of  



                                

mineral leases to the Department of Natural Resources (DNR), 12BBAY impermissibly  



limits  legislative  discretion  by  forcing  the  legislature  itself  to  make  final  allocation  



                      

decisions and thus violates the anti-appropriation clause.  The superior court concluded  



                                                                                                    

that 12BBAY does not limit legislative control over state assets because it expressly  



leaves final authority for appropriating state resources in the hands of the legislature.  



                                                                                                                      

The superior court rejected Hughes's argument that the second objective of the anti- 



appropriation  clause  is  violated  when  an  initiative  affects  the  process  of  making  



appropriations.  



                    We have previously stated that an initiative "narrows the legislature's range  



of freedom to make allocation decisions in a manner sufficient to render the initiative an  



                      18  

                                    

appropriation"            when  "the  initiative  'would  set  aside  a  certain  specified  amount  of  



                                                                              

money or property for a specific purpose or object in such a manner that is executable,  



                                                                                                          19  

                                                                                                                          

mandatory, and reasonably definite with no further legislative action.' "                                    Several of our  



decisions regarding whether particular initiatives would make an appropriation illuminate  



this principle.  



                                                                                                                   

                    In McAlpine v. University of Alaska we considered an initiative that would  



                                    

have established a state community college system and required the University of Alaska  



                                                                      20  

to transfer certain property to the new system.                           We upheld the initiative's provisions  



              

creating  and  funding  an  independent  community  college  system,  but  struck  the  



          18        Pebble Ltd. P'ship , 215 P.3d at 1075 (citing                     Pullen v. Ulmer , 923 P.2d 54,  



64 n.15 (Alaska 1996)).  



          19        Id. (quoting Staudenmaier v. Municipality of Anchorage, 139 P.3d 1259,  



1262 (Alaska 2006)).  



          20        762 P.2d 81, 87-88 (Alaska 1988).  



                                                               -8-                                                         6981
  


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

initiative's third sentence, which provided:  "The amount of property transferred shall  



                                                                                                           

be  commensurate  with  that  occupied  and  operated  by  the  Community  Colleges  on  

                             21  We concluded that this language impermissibly "designat[ed] the  

November 1, 1986." 



use of an ascertainable and definite amount of state assets" - that amount in use by the  

                                                                                                           



                                                                  22  

community  colleges  on  November  1,  1986.                            We  noted  that  a  key  consideration  



                                                                                                            

supporting this conclusion was that "no further legislative action would be necessary to  



                                                                                      

require the University to transfer property to the community college system, or to specify  



                                                                                23  

the  amount  of  property  the  University  must  transfer."                          But  we  concluded  that  the  



initiative's  second  sentence,  which  provided  that  "[t]he  University  of  Alaska  shall  



                                                                                           

transfer to the Community College System of Alaska such real and personal property as  



is necessary to the independent operation and maintenance of the Community College  

System,"24 was not an appropriation because the legislature would maintain "all the  



                                                                                                                  25  

                                                                                                                       We  

discretion  it  needs  with  respect  to  appropriations  for  community  colleges." 



                                                                                                        

reasoned that the legislature's discretion would be limited only to the extent that the  



legislature could not eliminate all appropriations for community colleges, and we saw  

no realistic danger that the legislature would attempt to do so.26  



                   In  City  of  Fairbanks  v.  Fairbanks  Convention  &  Visitors  Bureau  we  



considered  a  local  ballot  initiative  that  would  have  amended  a  municipal  ordinance  



          21       Id. at 83, 95-96.
  



          22       Id. at 89-90.
  



          23
      Id. at 91.  



          24       Id . at 87.  



          25       Id. at 91.  



          26       Id.  



                                                            -9-                                                      6981
  


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

governing the use of funds from the city's hotel tax by allowing revenue from the tax to                                                              



be used for non-tourist and entertainment purposes and eliminating the requirement that                                          

a certain percentage of the tax go to the Fairbanks Convention and Visitors Bureau.                                                                                 27  



We concluded that the initiative did not repeal an appropriation because the ordinance  

                                                                                           



it   amended   was   not   an   "appropriation"   as   the   legislature   used   the   term   in  



                                                                  

AS 29.35.100 - "that is as an act which accompanies the approval of the annual budget  



                                                            28  

or is supplemental to that act."                                 We further concluded that the initiative was not an  



                                                                                                                           

appropriation in its own right because it would not "reduce the [city] council's control  



over  the  appropriations  process.    Instead,  the  initiative  [would]  allow[]  the  council  

greater discretion in appropriating funds than [did] the current law."29  



                                                                      

                          In Pullen v. Ulmer we considered an initiative that would direct allocation  



of  the  salmon  harvest  among  competing  users  and  would  create  preferences  for  



                                                                                     30 

subsistence, personal, and recreational users.                                            After determining that wild salmon were  

a state asset,31 we held that the initiative would impermissibly appropriate that asset.32  



                                                                                                                          

We concluded that the initiative was a giveaway, both because it was "designed to appeal  



                                                                                                                                

to the self-interests of sport, personal and subsistence fishers" and would "significantly  



                                                                                                        

reduce[]  the  legislature's  and  Board  of  Fisheries'  control  of  and  discretion  over  



allocation  decisions,  particularly  in  the  event  of  stock-specific  or  region-specific  



             27           818 P.2d 1153, 1154-55 (Alaska 1991). 
 



             28           Id. at 1157.
  



             29
          Id. (emphasis added).  



             30           923 P.2d 54, 55 (Alaska 1996).  



             31           Id. at 61.  



             32           Id. at 63-64.  



                                                                               -10-                                                                          6981
  


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

                                                                                                  33  

shortages  of  salmon  between  the  competing  needs  of  users."                                      We  distinguished  



                                                                        

McAlpine by emphasizing that the initiative at issue could significantly limit the Board  



                                                                 

of Fisheries' discretion to make allocation decisions in times of shortages and that "there  

is a very realistic danger that such shortages will occur."34  



                    In Alaska Action Center, Inc. v. Municipality of Anchorage we considered  



                                                                                                                        35  

                                                                                                                              We  

an  initiative  that  would  have  limited  development  on  municipal  property. 



concluded that the initiative was distinguishable from the permissible section of the  



                                                                                                         

initiative in McAlpine because it " 'designat[ed] the use of' specified amounts of public  



                                                  

assets in a way that encroaches on the legislative branch's exclusive 'control over the  



                                                                                   36  

allocation  of  state  assets  among  competing  needs.'  "                              We  rejected  Alaska  Action  



                                             

Center's  argument  that  the  initiative  was  distinguishable  from  the  one  at  issue  in  



McAlpine  because  it  did  not  mandate  a  transfer  of  property:    "McAlpine  did  not  



                                                                                         

rest . . . on the fact that the initiative at issue there would have required a formal land  



                                                

transfer; the ruling focused on the fact that the initiative directed a specific amount of  



                                                                   37  

                                                                                                              

property to be used for a specified purpose."                          We also emphasized that the prohibition  



against  appropriations  is  meant  to  keep  "control  of  the  appropriation  process  in  the  



          33        Id. at 63.  



          34        Compare  id.  at  64  with  McAlpine  v.  Univ.  of  Alaska,  762  P.2d  81,  91  



(Alaska 1988) (upholding limitation on legislature's discretion to eliminate all funding  

                                                                                 

for community colleges because there was "no realistic danger that the legislature would  

                                                                                               

attempt to do so").  



          35        84 P.3d 989, 990-91 (Alaska 2004).  



          36  

                                                                            

                    Id.  at  994  (quoting McAlpine ,  762  P.2d  at  89; Pullen ,  923  P.2d  at  63)  

(footnote omitted).  



          37        Id.  



                                                              -11-                                                         6981
  


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

                         38 

                                                                            

legislative body"           and concluded that the initiative would intrude on legislative control  

by "limiting the mechanism for future change to another initiative process."39  



                                                                                                              

                    In Staudenmaier v. Municipality of Anchorage we considered whether two  



                                   

initiatives  that  would  have  directed  the  municipality  to  sell  utility  assets  would  



                                                   40  

impermissibly  appropriate  assets.                      The  first  initiative  would  have  required  the  



                                                                                                    

municipality to sell Anchorage Municipal Light & Power Utility and its assets and would  



                                                                                              41 

                                                                                                  The second initiative  

have granted Chugach Electric Association a right of first refusal. 



                                                                 

would have required the municipality to sell the Anchorage Municipal Refuse Collection  



                                         42  

                                                                          

Utility to the highest bidder.               We concluded that the municipal clerk properly rejected  



                                                                      

the initiative petitions because, by requiring the sale of public assets, they violated article  

                                                                                    43  We explained that the line  

XI, section 7's prohibition on appropriating by initiative.     



between an unobjectionable initiative that deals with a public asset and one that is an  



impermissible appropriation is crossed "where an initiative controls the use of public  

assets such that the voters essentially usurp the legislature's resource allocation role."44  



          38       Id.  (emphasis  in  original)  (quoting   City  of  Fairbanks   v.  Fairbanks  



Convention & Visitors Bureau, 818 P.2d 1153, 1156 (Alaska 1991)) (internal quotation                 

marks omitted).  



          39       Id. at 994-95.  



          40        139 P.3d 1259, 1260 (Alaska 2006).  



          41       Id. at 1260-61.  



          42       Id. at 1261.  



          43       Id. at 1263.  



          44  

                                                 

                   Id.  (citing  Alaska  Action  Ctr.  v.  Municipality  of  Anchorage ,  84  P.3d  

989, 994 (Alaska 2004)).  



                                                             -12-                                                       6981
  


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

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



considered an initiative that would have regulated large-scale metallic mines for the  

                                                  45  We concluded that the initiative dealt with a public  

purpose of protecting water quality.                                                                

asset - waters of the state - but that the initiative would not appropriate that asset.46  

                            

As in this case, no party argued that the initiative was a "give-away program."47  Instead,  

                                                                                                                 



the primary question was "whether the initiative narrow[ed] the legislature's range of  



freedom to make allocation decisions in a manner sufficient to render the initiative an  



                      48  

appropriation."             We  concluded  that  because  the  initiative  was  properly  read  as  



"preclud[ing]  only  discharges  of  toxic  chemicals  and  other  mine  waste  that  cause  



                                                                                                 

'adverse effects' to humans, salmon, and waters used for human  consumption or as  



                                                                          49  

                                                                              We stated that "the prohibition  

salmon habitat," it did not make an appropriation. 



against initiatives that appropriate public assets does not extend to prohibit initiatives that  



                                 

regulate public assets, so long as the regulations do not result in the allocation of an asset  

                                                                   50  We further observed that the initiative  

entirely to one group at the expense of another."                                                           



left  the  Department  of  Environmental  Conservation  and  Department  of  Natural  

                                                                                  



          45       215 P.3d 1064, 1069-70 (Alaska 2009).
  



          46       Id. at 1074-77.
  



          47
      Id. at 1075.  



          48       Id. (citing Pullen v. Ulmer , 923 P.2d 54, 64 n.15 (Alaska 1996)).  



          49       Id. at 1077.  



          50       Id.   



                                                           -13-                                                      6981
  


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

Resources the discretion to determine specific amounts of toxic pollutants that may be                      

discharged and did not exhibit any "explicit preference among potential users."51  



                   In Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough we  



considered  a  ballot  initiative  passed  by  voters  that  required  voter  approval  for  all  

                                                                                                                  52   We  

Borough  capital  projects  with  a  total  cost  in  excess  of  one  million  dollars. 



concluded that requiring voter approval for a specific class of Borough expenditures was  

                                                                                        



                                                                                      53  

an appropriation, and, therefore, the initiative was invalid.                             We  explained that "an  



initiative may make an impermissible appropriation not only when it designates public  



assets  for  some  particular  use,  but  also  when  it  allocates  those  assets  away  from  a  



                          54  

particular group."            We concluded that the voters would not invariably approve all  



capital projects placed on the ballot as a result of the initiative, and thus the initiative  

                                                                                                           



would  allocate  assets  away  from  those  capital  projects  meeting  the  voter-approval  

threshold.55  



                   Most recently in Municipality of Anchorage v. Holleman we considered,  



among  other  things,  whether  a  referendum  to  repeal  a  municipal  ordinance  was  an  

                                                                                                   



                    56  

appropriation.          The ordinance at issue made a number of changes to the employee  

                                                    



relations  chapter  of  the  Anchorage  Municipal  Code,  including  limiting  overtime  



compensation,           prohibiting        strikes,    and     placing       new     restrictions       on    collective  



          51       Id.
  



          52       273 P.3d 1128, 1130 (Alaska 2012).
  



          53       Id. at 1137-38.
  



          54       Id.  at 1138 (emphasis added) (citing Pullen v. Ulmer , 923 P.2d 54, 64  



(Alaska 1996)).  



          55       Id .  



          56       321 P.3d 378, 380 (Alaska 2014).  



                                                           -14-                                                      6981
  


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

                 57  

bargaining.          The municipality argued that by repealing an ordinance intended to save  

                                                                                                         



money on labor costs, the referendum would effectively appropriate public assets that the  

                                                                                                                       

                                                                           58   We rejected that argument, noting  

municipal assembly could direct to other priorities.  

                                                                                     



that "we have never held that any effect on public resources triggers the prohibition on  

                               

direct legislation; nearly all legislation involves public assets to some degree."59                                       We  

                                                                                    



observed that "the referendum [did] not compel or restrict the expenditure of public  



funds,   the   approval   of   labor   contracts,   or   any   particular   level   of   employee  



compensation," and that "the economic effects of the ordinance are indirect and presently  

                               

                     60   Thus, we concluded that the referendum  was not an "  'executable,  

unknowable."                                                                                           



mandatory, and reasonably definite' set-aside [of money or property] that our case law  

                                                                           

requires before we will find that an initiative or referendum makes an appropriation."61  

              



                    Read together, these cases create a relatively detailed outline of when an  



initiative or referendum impermissibly limits legislative discretion to allocate state assets  

                   



in violation of article XI, section 7.  An initiative or referendum may:  (1) mandate a non- 

                                      



appropriative allocation of property - including a transfer of property from a specific  

                                                                                         



                                                                                                          62  

government  entity  -  sufficient  to  accomplish  a  particular  purpose;                                    (2)  repeal  a  



          57        Id. at 380-81.
  



          58        Id. at 384.
  



          59        Id.
  



          60        Id. at 385.
  



          61        Id.  (quoting Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula
  



Borough , 273 P.3d 1128, 1136 (Alaska 2012)).  



          62        See   McAlpine  v.  Univ.  of  Alaska,  762  P.2d  81,  87,  96  (Alaska  1988)  



(approving  initiative's  requirement  that  the  University  of  Alaska  transfer  to  an  

independent community college system "such real and personal property as is necessary  

                                                                                               

                                                                                                            (continued...)  



                                                             -15-                                                        6981
  


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

                                                                                                                        

legislative enactment that designates the use of government funds, as long as the statute  



                                                                                                                                                   63  

                                                                             

or ordinance is not an "appropriation" as the legislature used the term in AS 29.35.100; 



(3)  increase  the  legislative  body's  discretion  in  making  appropriations  by  changing  

                                                                                       



                      64                                                              65 

existing law;            (4) regulate the use of public assets;                          or (5) repeal a legislative enactment  

                                                     

intended to reduce government expenditures in a particular area of the budget.66  



                       But an initiative or referendum may not:  (1) require the allocation of "an  

                                                                                                                   

ascertainable and definite amount of state assets";67 (2) set aside specified property for  

                                                                                                       



a particular use, especially where the initiative "limit[s] the mechanism for future change  

                                                                                                                                

to another initiative process";68 (3) set preferences among user groups of a particular  



            62(...continued)  



to the independent operation and maintenance of the Community College System").  



            63         See City of Fairbanks v. Fairbanks Visitors & Convention Bureau, 818 P.2d  



1153, 1157 (Alaska 1991) (concluding that initiative amending a city ordinance that  

designated the use of the city's hotel tax did not repeal an appropriation).  



            64         See  id.  (concluding  that  initiative  could  not  be  an  appropriation  if  it  



expanded the legislature's authority to allocate funds).  



            65         Pebble  Ltd.  P'ship  ex   rel.  Pebble  Mines  Corp.  v.  Parnell ,  215  P.3d  



1064, 1077 (Alaska 2009) (concluding that an initiative precluding discharge of mining         

waste that causes " 'adverse effects' to humans, salmon, and waters used for human  

consumption or as salmon habitat" was not an appropriation).  



            66  

                                                                                                  

                       Holleman , 321 P.3d at 381-85 (upholding referendum that would repeal  

municipal ordinance intended to reduce the Municipality of Anchorage's labor costs).  



            67         See  McAlpine,  762  P.2d  at  87-91  (striking  from  initiative  a  provision  



requiring the University of Alaska to transfer the amount of property "commensurate  

with that occupied and operated by the Community Colleges on November 1, 1986").  



            68         See Alaska Action Ctr., v. Municipality of Anchorage, 84 P.3d 989, 994-95  



(Alaska 2004) (invalidating initiative limiting the use of a particular area of municipal  

                                                                                                                               (continued...)  



                                                                       -16-                                                                  6981
  


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

                         69                                                                         70 

public resource;   (4) require the sale of specified public assets;                                    or (5) require voter  



                                                                                                             71  

approval for any public expenditure of funds within a particular class.                                          Additionally,  



                                                         

an initiative that regulates the use of public assets may not "result in the allocation of an  



                                                                                   72  

                                                                                       These cases also suggest that a  

asset entirely to one group at the expense of another."  



limitation on legislative discretion is only an "appropriation" where the limitation would  

restrict a plausible legislative choice.73  



                                      

                     The effect of 12BBAY is similar to that of the initiative at issue in City of  



                                                                                                                      

Fairbanks in that it ultimately gives the legislature more discretion whether to approve  



                                            

a particular mining project.  In City of Fairbanks an existing ordinance allocated the use  



          68(...continued)  



land).  



          69         See Pullen v. Ulmer, 923 P.2d 54, 64 (Alaska 1996) (invalidating initiative       



establishing  preferences  for  subsistence,  personal,  and  recreational  users  in  salmon  

fishery).  



          70  

                                                   

                     See Staudenmaier v. Municipality of Anchorage, 139 P.3d 1259, 1260-63  

(Alaska 2006) (upholding municipality's rejection of initiative requiring the municipality  

to sell specified public utility assets).  



          71  

                            

                     See Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough ,  

                                                                                   

273 P.3d 1128, 1137-38 (Alaska 2012) (invalidating initiative requiring voter approval  

for all Borough capital expenditures in excess of one million dollars).  



          72         Pebble  Ltd.  P'ship  ex  rel.  Pebble  Mines  Corp.  v.  Parnell ,  215  P.3d  



 1064, 1077 (Alaska 2009).  



          73  

                                                                                    

                     See Pullen, 923 P.2d at 64 (holding that initiative setting user preferences  

                                                                                                         

in salmon fishery was an appropriation because it would limit the Board of Fisheries'  

                                                                                                   

discretion to make allocation decisions in times of shortage and "there is a very realistic  

                                                                                                                     

danger that such shortages will occur"); McAlpine v. Univ. of Alaska, 762 P.2d 81, 91  

(Alaska  1988)  (concluding  that  limiting  legislature's  discretion  to  eliminate  all  

appropriations for community colleges was permissible because there was no realistic  

                                                                                                                      

danger that the legislature would attempt to do so).  



                                                                -17-                                                          6981
  


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

of hotel tax revenue and the initiative would have returned complete control of that  



                                           74  

                                                                                                            

revenue  to  the  City  Council.                 In  the  present  case  an  extensive  set  of  statutes  and  



regulations governs mining, and the legislature has delegated permitting decisions to  



                                                                  

DNR.  12BBAY would alter that scheme by returning final decision-making authority  



to the legislature for proposed "large-scale metallic sulfide mining operation[s] located  



within the watershed of the Bristol Bay Fisheries Reserve."  



                                                                                                                

                    12BBAY  is  also  distinguishable  from  each  case  where  this  court  has  



                                                                             

invalidated an initiative on the basis that it interferes with the legislature's control over  



                                                                                         

resource allocation.  Unlike the initiative at issue in McAlpine , 12BBAY would not direct  



                                                                                                 75  

                                                                                                     While 12BBAY  

the use of "an ascertainable and definite amount of state assets." 



                                                                                                                 

would regulate resource use in an identified geographic area, it does not set that area  

aside  for  a  particular  use  as  the  initiative  in  Alaska  Action  Center  would  have.76  



12BBAY  does  not  require  the  sale  of  any  public  assets  and  does  not  require  voter  

                                                                 77   Finally, contrary to Hughes's assertion,  

                                                                                  

approval for any expenditure of public funds.  



12BBAY does not attempt to allocate any state assets to one user group to the exclusion  



                78  

                                                    

of another.         Adding an additional regulatory step for large-scale mining projects may  



                                                                                                 

or may not benefit the fishing industry and burden a segment of the mining industry, but  



          74       818 P.2d 1153, 1154-55 (Alaska 1991).  



          75       762 P.2d at 89.  



          76       84 P.3d 989, 995-96 (Alaska 2004).  



          77       See   Staudenmaier  v.  Municipality  of  Anchorage,  139  P.3d  1259,  1263  



(Alaska 2006); Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough,  

273 P.3d 1128, 1137-38 (Alaska 2012).  



          78       See  Pullen,  923  P.2d  at  64  (invalidating  initiative  that  would  have  



established  preferences  for  subsistence,  personal,  and  recreational  users  in  salmon  

                                                                                                      

fishery).  



                                                            -18-                                                      6981
  


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

                                                                                                                           

it certainly does not "result in the allocation of an asset entirely to one group at the  

expense of another."79  And, ultimately, the legislature retains the discretion to make the  



necessary findings and decisions.  



                     12BBAY  undeniably  would  alter  the  legislature's  existing  scheme  for  



allocating  and  regulating  the  use  of  the  state's  mineral  resources.    But  this  court  



concluded  in  Pebble  Limited  Partnership  that  there  is  no  prohibition  on  initiatives  



                                                                         80  

                                                                                  An   initiative   violates   the   anti- 

altering   existing   public   resource   regulations. 



                                                                      

appropriation clause of article XI, section 7 only when it "controls the use of public  

assets such that the voters essentially usurp the legislature's resource allocation role."81  



                                                     

12BBAY does not cross that line.  Because the legislature would retain ultimate control  



over allocation of state assets, 12BBAY is not an appropriation.  



                                                                                                                

          B.	       12BBAY Does Not Violate Article XI, Section 7's Local And Special  

                    Legislation Clause.  



                    Hughes  argues  that  12BBAY  violates  the  local  and  special  legislation  



                                                                                                                   

clause of article XI, section 7 of the Alaska Constitution.  He asserts that there is no  



legitimate  basis  for  12BBAY's  narrow  geographic  scope.    The  State  responds  that  



                                                                                                                   

12BBAY is not unconstitutional under this court's interpretation of article XI, section  



       

7's local and special legislation prohibition as articulated in Pebble Limited Partnership .  



                    Both article XI, section 7 of the Alaska Constitution and AS 15.45.010  



                                                                                                                   

prohibit enacting local or special legislation by initiative.  This prohibition is absolute.  



                                                                                                            

Article XI, section 7 provides that "[t]he initiative shall not be used to . . . enact local or  



          79        See  Pebble Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell                                  , 215 P.3d  



1064, 1077 (Alaska 2009) (citing Pullen , 923 P.2d at 63-64).  



          80        Id .  



          81        Staudenmaier,  139  P.3d  at  1263  (citing  Alaska  Action  Ctr. ,  84  P.3d  



at 994-95).  



                                                              -19-	                                                        6981
  


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

                              82 

special legislation."     We apply a "two-stage analysis for determining whether proposed  



                                                                                                                 83  

legislation is 'local or special legislation' barred by article XI, section 7."                                      We first  



                                                                                                                           84  

                                                                                                                               If  

consider "whether the proposed legislation is of general, statewide applicability." 



the  initiative  is  generally  applicable,  the  initiative  will  not  enact  local  or  special  



                                                85  

                                                    If the initiative is not generally applicable, we move  

legislation and the inquiry ends. 



                                                                                               

on  to  consider  whether  the  initiative  nevertheless  "bears  a  fair  and  substantial  



                                                      86 

                                                                        

relationship to legitimate purposes."                     We have explained that this standard is analogous  

to our most deferential standard of equal protection review.87  



                                                                                                               

                    The parties agree that 12BBAY is not generally applicable.  We agree and  



therefore next consider whether 12BBAY "bears a fair and substantial relationship to  



          82        This contrasts with article II, section 19, under which a legislative act that  



is "local or special" may still be constitutional, so long as a general act could not have  

been  made  applicable.    Hughes  argues  that  12BBAY  is  local  or  special  legislation  

because the initiative could have been drafted to apply statewide.  But neither article XI,  

                                                                                                   

section 7, nor any other source of authority in Alaska, suggests that an initiative would  

                                     

enact local or special legislation simply because it could have been drafted to apply  

statewide.         Article  II,  section  19  implies  that  local  or  special  legislation  may  be  

                   

permissible where a general act could not have been made applicable, but that provision  

                                                                       

does not apply to initiatives. While the substantive provisions of these two constitutional  

                                            

provisions differ, the analysis they use to determine whether particular legislation is  

"local or special" is the same.  



          83        Pebble Ltd. P'ship , 215 P.3d at 1078.  



          84  

                                                                                           

                    Id.  (citing  Boucher  v.  Engstrom ,  528  P.2d  456,  461  (Alaska  1974),  

overruled on other grounds by McAlpine v. Univ. of Alaska, 762 P.2d 81, 85 (Alaska  

1988)).  



          85        Id.  



          86  

                                                                                            

                    Id.  at 1079 (quoting State v. Lewis, 559 P.2d 630, 643 & n.44 (Alaska  

1977)) (internal quotation marks omitted).  



          87        Id. (citing Boucher , 528 P.2d at 461).  



                                                              -20-                                                         6981
  


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

                               88  

legitimate purposes."              12BBAY's purpose is to protect "Bristol Bay wild salmon and  



                      

waters within or flowing into the existing 1972 Bristol Bay Fisheries Reserve."  We  



conclude there is no serious question that requiring legislative approval of large-scale  



metallic  sulfide  mining  operations  in  the  Bristol  Bay  watershed  bears  a  fair  and  



                                                              89  

substantial  relationship  to  that  purpose.                       Thus,  we  must  consider  only  whether  



                                                                       

protecting "Bristol Bay wild salmon and waters within or flowing into the existing 1972  



Bristol Bay Fisheries Reserve" comprises a legitimate purpose.  We conclude that it  



does.  



                    The superior court determined that protecting the Bristol Bay fishery is  



legitimate because the legislation creating the Bristol Bay Fisheries Reserve had the same  



                                                                           

purpose and applied to the same geographic area as 12BBAY.  The court stated that "[i]n  



effect . . . , [Hughes's] attack on 12BBAY as local and special legislation is really a  



                                                                           

misdirected attack on the creation of the fisheries reserve in 1972" and that "[t]here is  



                                                                            

nothing in Alaska constitutional jurisprudence that authorizes a collateral constitutional  



                                                                                     

attack on an existing statute in the guise of a pre-election challenge to an initiative that  



does not seek to revise the existing statute."  



                    Hughes   argues   that   the   superior   court   erred   by   concluding   that  



                                                                   

AS 38.05.140(f) justified 12BBAY's special treatment of the Bristol Bay watershed.  He  



                                                                                       

suggests that the correct question is "whether the narrow classification drawn by the  



legislation that is actually at issue is fairly and substantially justified."  As discussed  



                                                               

above, the issue here is whether protecting the Bristol Bay fishery comprises a legitimate  



                                                        

purpose, not whether it is "fairly and substantially justified."  While we  conclude that  



          88       Id. (internal quotation marks omitted).  



          89        The  record  indicates  that  large-scale  metallic  sulfide  mining  has  real  



potential to affect water quality and fisheries.  



                                                             -21-                                                          6981  


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

AS 38.05.140 is relevant to whether 12BBAY's purpose is legitimate, we reject the   



superior court's conclusion that AS 38.05.140 is dispositive of that question.  Under the                    



court's  reasoning,  the  purpose   of  any  initiative  that  relies  on  the  unchallenged  



classification or geographic scope of an existing and unchallenged statute with a similar  



                                                                           

purpose would be per se legitimate.  Nothing in our jurisprudence supports such a rule.  



                      Hughes  argues  there  is  no  legitimate  economic  or  biological  basis  for  



limiting  12BBAY  to  the  Bristol  Bay  watershed.    His  argument  suggests  that  the  



initiative's  geographic  scope  must  be  justified  by  detailed  economic  or  scientific  



                                                                                                          

findings.  But such a requirement would not be consistent with our deferential "legitimate  



                                                                                      

purpose" test.  In State v. Lewis it was sufficient that legislation allowing a specific land  



                                                                                                                        

transfer was "designed to facilitate statewide land use management and to resolve a host  



of pressing legal issues arising in the context of [the Alaska Native Claims Settlement  



          90  

               In Baxley  v. State it was sufficient that the oil and gas leases singled out for  

Act]."                                                                                              



modification had unique characteristics that could incentivize lessees to abandon the  



                                                                                              

fields before extracting all of the oil, thus implicating the state's interest in maximizing  



                        91  

oil production.               



                      As the superior court discussed in its decision in this case, the legislature  

                                                                                                   



recognized the importance of the Bristol Bay fishery by establishing the Bristol Bay  

                                                                                                                          



Fisheries Reserve in AS 38.05.140(f).  This statute mandates that oil and gas leases or  



                                                                                                                            

exploration licenses may "not be issued on state owned or controlled land [within the  



reserve] until the legislature by appropriate resolution specifically finds that the entry  



           90         559 P.2d 630, 643-44 (Alaska 1977).  



           91         958 P.2d 422, 430-31 (Alaska 1998).  



                                                                   -22-                                                                  6981  


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

                                                              92  

                                                                                         

will not constitute danger to the fishery."                       The record in this case also indisputably  



establishes  that  the  Bristol  Bay  watershed  has  unique  ecological,  geographic,  and  



                                                                    

economic characteristics; that the fishery has significant statewide importance; and that  



metallic sulfide mining poses potential water quality risks.  For example, the initiative  



sponsors provided a report extensively documenting the economic importance of the  



                   

Bristol Bay salmon industry, which concluded that Bristol Bay has the world's most  



                                                                   

valuable wild salmon fishery.  The initiative sponsors also provided a report discussing  



                                                                                        

the potentially significant impacts of a proposed large-scale mining project on the Bristol  



Bay wild salmon ecosystem.  



                                                                                                       

                    Hughes's argument and the expert reports that he relies on paint a picture  



                     

of the Bristol Bay fishery as comparatively less economically and biologically important  



than several other fisheries in the state.  But even if this were correct, the Bristol Bay  



fishery does not need to be the most important or best fishery in the state to justify  



targeted legislation. Rather, it merely needs to have some unique statewide importance  

that justifies geographically limited legislation.93  Even Hughes's economist, Dr. Michael  



                                                                                  

Taylor,  points  to  factors  that  distinguish  Bristol  Bay  from  the  state's  other  salmon- 



                                                                                                              

producing regions and also show its significance to the state as a whole.  For example,  



                                  

Bristol Bay possesses a particularly high incidence of sockeye salmon relative to other  

salmon species.94  Its salmon enter the supply chain through different markets than other  



state fisheries - particularly Japan, China, and Russia - thus contributing to Alaska's  



          92        AS 38.05.140(f).  



          93        See Baxley,  958 P.2d at 430-31.  



          94  

                                                                                 

                    Bristol Bay also has the vast majority of sockeye (red) salmon statewide;  

                                                                                                     

chum and pink salmon represent the majority of the harvest in Prince William Sound and  

                                                                                    

Southeast  Alaska.    A  significant  loss  of  salmon  in  Bristol  Bay  would  therefore  

particularly affect the state's sockeye salmon population.  



                                                             -23-                                                        6981
  


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

Asian-Russian  export  market.    Bristol  Bay  has  a  significantly  compressed  harvest  



             95  

window,          with  correspondingly  low  employment  stability.    Dr.  Taylor  states  that  



                                                                                  

"[c]ompared to other regions in Alaska, the Bristol Bay salmon fishery is an economic  



engine," even though much of the economic benefit favors non-residents.  The total  



annual   average   (2008-2012)   of   gross   earnings   by   salmon   permit   holders   was  



approximately $143,000,000 for Bristol Bay, $94,000,000 for Southeast Alaska, and  



$93,000,000 for Prince William Sound.  Excluding gross earnings by non-resident permit  



holders, the annual averages for these three regions were approximately $61,000,000  



(Bristol  Bay),  $56,000,000  (Southeast  Alaska),  and  $71,000,000  (Prince  William  



Sound).  



                                        

                   According to a report prepared by the University of Alaska Anchorage's  



Institute  of  Social  and  Economic  Research  titled  "The  Economic  Importance  of  the  



                   

Bristol Bay  Salmon Industry," the Bristol Bay sockeye fishery "is the world's most  



valuable wild salmon fishery, and typically supplies almost half of the world's wild  



                                                            

sockeye salmon."  The report states that in 2010 "harvesting, processing, and retailing  



                                          

Bristol Bay salmon and the multiplier effects of these activities created $1.5 billion in  



                                          

output or sales value across the United States."  "Between 2005 and 2010, Bristol Bay  



                                  

averaged 67% of total sockeye salmon harvests (by volume) . . . ."  In 2010, Bristol Bay  



salmon fishing and processing employed an estimated 4,369 Alaska residents.  



                                                                                                        

                   We  conclude  that  Bristol  Bay's  unique  and  significant  biological  and  



                                              

economic characteristics are of great interest not just to the Bristol Bay region but to the  



          95       The commercial fishing season is six to eight weeks in Bristol Bay, but  



most of the run occurs in just two weeks.  This contrasts with fisheries in Prince William  

             

Sound and Southeast Alaska, where the harvest windows are longer by a month or more.  

                                                                                        

Other fisheries that have higher incidence of coho or chum salmon may have several  

                                                                                         

months more of harvest as well.  



                                                            -24-                                                      6981
  


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

state as a whole.  We also conclude that 12BBAY's purpose - to protect "Bristol Bay  



wild salmon and waters" - is legitimate.  And we conclude that 12BBAY bears a fair  



and substantial relationship to the initiative's legitimate purpose.  



                   The sponsors of 12BBAY certainly could have proposed an initiative of  



statewide application, but instead they chose to focus on a very important fishery in a  



                           

single region.  As we explained in Pebble Limited Partnership , however, "legislatures  



                                                                             96  

routinely  must  draw  lines  and  create  classifications."                       As  in  the  equal  protection  



                                                                             

context, "we are guided by the familiar principles that a statute is not invalid under the  



Constitution because it might have gone farther than it did, that a legislature need not  



                                                           

strike at all evils at the same time, and that reform may take one step at a time, addressing  



                                                                                                                      97  

                                                 

itself to the phase of the problem which seems most acute to the legislative mind." 



Applying  these  principles,  we  conclude  that  12BBAY  permissibly  distinguishes  the  



                                                                                             

Bristol  Bay  watershed  and  its  salmon  fishery  and  does  not  violate  the  Alaska  



Constitution's prohibition on local or special legislation.  



V.        CONCLUSION  



                   For the reasons discussed above, we AFFIRM the superior court's summary  



judgment order in favor of the State and the initiative sponsors.  



          96       Pebble  Ltd.  P'ship  ex  rel.  Pebble   Mines  Corp.  v.  Parnell ,  215  P.3d  



 1064, 1081 (Alaska 2009) (internal quotation marks omitted).  



          97       Id. (internal quotation marks omitted).  



                                                         -25-                                                       6981  

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