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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Miners Association v. Holman (6/16/2017) sp-7180

Alaska Miners Association v. Holman (6/16/2017) sp-7180, 397 P3d 312

          Notice:   This opinion is subject to correction before publication in the P                    ACIFIC  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  



ALASKA  MINERS  ASSOCIATION,   )
  

COUNCIL  OF  ALASKA                                        )          Supreme  Court  No.  S-15885
  

PRODUCERS,  and  RICHARD                                   )
  

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

                                                            )  

                    Appellants,                            )                             

                                                                     O P I N I O N  

                                                            )  

          v.                                                )                                        

                                                                     No. 7180 - June 16, 2017  

                                                            )  

                                               

JOHN H. HOLMAN; MARK NIVER; )  

                                        

CHRISTINA SALMON; MEAD                                     )  

                          

TREADWELL, LIEUTENANT                                      )  

                                                 

GOVERNOR OF THE STATE OF                                   )  

                                           

ALASKA; and STATE OF ALASKA,  )  

                        

DIVISION OF ELECTIONS,                                     )  

                                                            )
  

                    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,  

                                                                                                 

                    Holland & Knight LLP, Anchorage, for Appellants. Timothy  

                                                                                                          

                    A.  McKeever  and  Stacey  C.  Stone,  Holmes  Weddle  &  

                                                                                                         

                    Barcott, P.C., Anchorage, for Appellees Holman, Niver, and  

                                                                                                         

                    Salmon.  Notice  of nonparticipation  filed by  Elizabeth M.  

                                                                                                

                    Bakalar, Assistant Attorney General, and Craig W. Richards,  

                                                                                                       

                    Attorney General, Juneau, for Appellees Treadwell and State  

                                                       

                    of Alaska, Division of Elections.  


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

                                      Before:   Stowers, Chief Justice, Winfree, Maassen, Bolger,                                                                                            

                                      and Carney, Justices.                



                                       STOWERS, Chief Justice.                               



I.                 INTRODUCTION  



                                      Richard   Hughes,   Alaska   Miners   Association,   and   Council   of   Alaska  



Producers (Hughes plaintiffs) challenged the certification of a ballot initiative that would                                                                                                                                           



subject large-scale mining operations in the Bristol Bay region to additional legislative                                                                                                                                  



approval. It is undisputed that this initiative, if passed, would impact the Pebble Project,                                                                                                                                       



a potential large-scalemining                                                       project intheBristol                                      Bay region. The                                 initiative's sponsors,  



John H. Holman, Mark Niver, and Christina Salmon (Holman intervenors), intervened                                                                                                                                         



on the side of the State, and the State and intervenors moved for summary judgment to                                                                                                                                                              



establish the legality of the initiative.                                                                       The superior court granted the State's and the                                                                                  

Holman intervenors' motions for summary judgment and we affirmed on the merits.                                                                                                                                                                    1  



                                      The Holman intervenors then moved for full reasonable attorney's fees as  

                                                                                                                                                                                                                                                   

constitutional claimants under AS 09.60.010.2                                                                                          The Hughes plaintiffs opposed, arguing  

                                                                                                                                                                                                                                   



                   1                  Hughes v. Treadwell                                         , 341 P.3d 1121, 1134 (Alaska 2015).                                                      



                   2                  AS 09.60.010(c) states in part,  

                                                                                                                                 



                                                          In          a         civil               action                  or           appeal                    concerning                             the
  

                                                                                                                                                              

                                      establishment, protection, or enforcement of a right under the
  

                                                                                                                                                                                                          

                                      United States Constitution or the Constitution of the State of
  

                                                                                                                                                                                                             

                                      Alaska, the court (1) shall award, subject to (d) and (e) of this
  

                                                                                                                                                                                                         

                                       section, full reasonable attorney fees and costs to a claimant,
  

                                                                                                                                                                                      

                                      who,   as   plaintiff,   counterclaimant,   cross   claimant,   or
  

                                                                                                                                                                                                         

                                      third-party plaintiff in the action or on appeal, has prevailed
  

                                                                                                                                                                                        

                                      in asserting the right.
  

                                                                                    



                                      AS 09.60.010(d) states in part,  

                                                                                                                  

                                                                                                                                                                                                                  (continued...)  



                                                                                                                        -2-                                                                                                                7180
  


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

that they themselves were constitutional claimants and that the Holman intervenors were                                                                                                                                                                                                                                                                                                              



notconstitutionalclaimants                                                                                                      becausetheywereintervenor-defendants. Thesuperiorcourt                                                                                                                                                                                                               



determined that the Holman intervenors were constitutional claimants. It also found that                                                                                                                                                                                                                                                                                                                   



because Pebble Limited Partnership (Pebble) financed at least part of the litigation for   



the Hughes plaintiffs, Pebble was the real party in interest; the court further found that                                                                                                                                                                                                                                                                                                                



Pebble did not qualify as a constitutional claimant because it had sufficient economic                                                                                                                                                                                                                                                                                       



incentive to bring the action.                                                                                                             The court therefore awarded the Holman intervenors full                                                                                                                                                                                                         



reasonable attorney's fees. The Hughes plaintiffs appeal. We hold that because this case                                                                                                                                                                                                                                                                                                                



is fundamentally                                                                       about constitutional limits                                                                                                       on   the ballot-initiative process and                                                                                                                                           not  



whether   the   Pebble   Project   should   go   forward,   the   Hughes   plaintiffs  did   not   have  



 sufficient economic incentive to remove them from constitutional-claimant status, and  



we therefore reverse the award of attorney's fees.                                                                                                                                                                   



II.                             FACTS AND PROCEEDINGS                                                 



                                                                This appeal involves an attorney's fees dispute following a superior court                                                                                                                                                                                                                                                         



decision upholding Lt. Governor Mead Treadwell's certification of the "Bristol Bay                                                                                                                                                                                                                                                                                                                     



Forever" ballot initiative.                                                                                                 The initiative was approved to be placed on the November                                                                                                                                                                                     



2014 ballot. It required additional legislative approval for "a large-scale metallic sulfide                                                                                                                                                                                                                                                                                                



mining operation located within the watershed of the Bristol Bay Fisheries Reserve."                                                                                                                                                                                                                                                                                  



                                                                In January 2013 Richard Hughes filed suit against Lt. Governor Treadwell                                                                                                                                                                                                                                    



and the State of Alaska, Division of Elections seeking declaratory and injunctive relief                                                                                                                                                                                                                                                                                                           



and   asserting   that   the   initiative   was   contrary   to   the   subject   matter   restrictions   in  



                                2(...continued)  



                                                                                                                                                                                                                                                                                                                                  

                                                                                                In  calculating  an  award  of  attorney  fees  and  costs  

                                                                                                                                                                                                                                                                                                                                                

                                                                under (c)(1) of this section, . . . (2) the court shall make an  

                                                                                                                                                                                                                                                              

                                                                award only if the claimant did not have sufficient economic  

                                                                                                                                                                                                                                                                                          

                                                                incentive to bring the suit, regardless of the constitutional  

                                                                                                 

                                                                claims involved.  



                                                                                                                                                                                                        -3-                                                                                                                                                                                           7180
  


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

                                                                                                                        3  

article XI, section 7 of the Alaska Constitution.                                                                           Hughes also alleged that the initiative                                   



violated separation of powers.                                                 Hughes's Amended Complaint added as a plaintiff the                                                                                   



Alaska Miners Association, and his Second Amended Complaint added the Council of                                                                                                                                       



AlaskaProducers. Theinitiative's                                                       sponsors, John H. Holman, MarkNiver,                                                                and Christina  

Salmon, moved to intervene as defendants, and the superior court granted that motion.                                                                                                                                     4  



                                  In February 2014 the superior court granted summary judgment in favor of  

                                                                                                                                                                                                                        

the State and the Holman intervenors,5 and on appeal we affirmed the superior court's  

                                                                                                                                                                                    

decision.6  



                                  After the superior court entered final judgment the Holman intervenors  

                                                                                                                                                                                               



moved  for  an  award  of  full  attorney's  fees  and  costs,  claiming  that  they  were  

                                                                                                                                                                                                              



constitutional claimants or in the alternative that they were entitled to attorney's fees and  

                                                                                                                                                                                                                   

                                                                                                                              7                       8     The Holman intervenors  

                                                                                                                                  and 82.                                                      

costs under Alaska Rules of Civil Procedure 79                                                                                               

                                                                                                                       



                 3                See Hughes                    , 341 P.3d at 1124.                               Article XI, section 7 provides,                      



                                                   The initiative shall not be used to dedicate revenues,
                                                        

                                  make   or   repeal   appropriations,   create   courts,   define   the
  

                                 jurisdiction of courts or prescribe their rules, or enact local or
                                                                                  

                                  special legislation. The referendum shall not be applied to
                                                                                       

                                  dedications of revenue, to appropriations, to local or special
                                                                        

                                  legislation,                      or        to        laws             necessary                    for          the          immediate
  

                                  preservation of the public peace, health, or safety.
                                                          



                 4                Hughes, 341 P.3d at 1124.  

                                                                                        



                 5                Id .  

                                           



                 6                Id . at 1134.  

                                                 



                 7                Alaska R. Civ. P. 79(a) provides,  

                                                                                               



                                                   Unless the court otherwise directs, the prevailing party  

                                                                                                                                                                              

                                  is entitled to recover costs allowable under paragraph (f) that  

                                                                                                                                                                                 

                                                                                                                                                                                          (continued...)  



                                                                                                           -4-                                                                                                  7180
  


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

supported their motion with affidavits from Holman, Niver, and Salmon.                                                                         All claimed   



that they did not have an economic incentive for pursuing litigation; rather, they asserted                                                             



that they were primarily concerned with protecting their rights to get the initiative on the                                                                     

ballot.9  



                          The  Hughes  plaintiffs  opposed  the  motion  and  raised  two  primary  

                                                                                                                                                      



arguments: (1) they were constitutional claimants and thus immune from attorney's fees  

                                                                                                                                                               



under AS 09.60.010(c); and (2) the statute was intended to protect persons who raised  

                                                                                    



constitutional claims against the State but not to protect intervenor-defendants against  

                                                                                                                                                         



             7(...continued)
  



                                                                                                                             

                          were necessarily incurred in the action. The amount awarded
  

                                                                                                                                         

                          for each item will be the amount specified in this rule or, if no
  

                                                                                                                                          

                          amount is specified, the cost actually incurred by the party to
  

                                                                    

                          the extent this cost is reasonable.
  



             8            Alaska R. Civ. P. 82(b)(2) provides,  

                                                                              



                                       In  cases  in  which  the  prevailing  party  recovers  no  

                                                                                                                                        

                          money judgment, the court shall award the prevailing party  

                                                                                                                                   

                          in a case which goes to  trial 30 percent of the prevailing  

                                                                                                                         

                          party's   reasonable   actual   attorney's   fees   which   were  

                                                                                                                                  

                          necessarily incurred, and shall award the prevailing party in  

                                                                                                                                          

                          a case resolved without trial 20 percent of its actual attorney's  

                                                                                                                          

                          fees which were necessarily incurred.  The actual fees shall  

                                                                                                                                    

                          include  fees  for  legal  work  customarily  performed  by  an  

                                                                                                                                        

                          attorney but which was delegated to and performed by an  

                                                                                                                                        

                          investigator, paralegal or law clerk.  

                                                                                    



             9            Niver  declared  that  he  worked  for  part  of  the  year  as  a  commercial  

                                                                                                                                               

fisherman in Bristol Bay.  Holman declared that he owned a sport-fishing lodge in the  

                                                                                                                                                                 

Lake Clark area but that his lodge was about 60 miles from the proposed Pebble Mine  

                                                                                                                    

and that the mine therefore would not impact his business.  Salmon declared that she  

                                                                                                                                      

engages in subsistence gathering, fishing, and hunting in the Bristol Bay region.  

                                                                                                                                             



                                                                                 -5-                                                                         7180
  


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

                                                                                                      10  

private parties.                                                                                                 In support of their argument that they were constitutional claimants,                                                                                                                                                                                                                                                                                                                                            



they filed affidavits from Hughes; Deantha Crockett, Executive Director of the Alaska                                                                                                                                                                                                                                                                                                                                                                                                                                                                   



Miners Association; and Karen Matthias, Managing Consultant of the Council of Alaska                                                                                                                                                                                                                                                                                                                                                                                                                                                                     



Producers.    Each disclaimed any economic interest in the litigation.                                                                                                                                                                                                                                                                                                                                                                                                                          Notably, their   



 opposition did not allege that the Holman intervenors had an economic incentive to                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                      



 litigate and were therefore not constitutional claimants.                                                                                                                                                                                                                                                                                                                                   They also contended that the                                                                                                                                                         



Holman intervenors' fees were excessive.                                                                                                                                                                            



                                                                                           In their reply brief in superior court, the Holman intervenors asserted that                                                                                                                                                                                                                                                                                                                                                                                                       



the Hughes plaintiffs had economic incentive to bring the action and suggested that                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         



Pebble was actually the entity paying for the litigation. The Holman intervenors attached                                                                                                                                                                                                                                                                                                                                                                                                                                                        



 an affidavit from Scott Kendall, an attorney working for them.                                                                                                                                                                                                                                                                                                                                                                                               Kendall attached a                                                                                                              



number of publications to his affidavit connecting the Hughes plaintiffs to Pebble.                                                                                                                                                                                                                                                                                                                                                                                                                                                                



                                                                                          At oral argument counsel for the Hughes plaintiffs conceded that plaintiffs'                                                                                                                                                                                                                                                                                                                                                                 



 litigation fees had been paid for by the Alaska Miners Association, the Council of Alaska                                                                                                                                                                                                                                                                                                                                                                                                                                                                



Producers, and Pebble.                                                                                                                                      He also conceded that Pebble had agreed to indemnify all of the                                                                                                                                                                                                                                                                                                                                                        



named plaintiffs in the event of an adverse attorney's fees ruling.                                                                                                                                                                                                                                                                                                                                                                                       But he argued that if                                                                                                              



the   Hughes   plaintiffs'   interests   in   mining   could   exclude   them   from   constitutional- 



 claimant status, then the Holman intervenors' interests in commercial fishing should                                                                                                                                                                                                                                                                                                                                                                                                                                                                    



 likewise disqualify them from constitutional-claimant status.                                                                                                                                                                                                                                                                                                                



                                                                                           The superior court awarded full fees to the Holman intervenors in the                                                                                                                                                                                                                                                                                                         



 amount of $63,944. The court first concluded that the intervenors were claimants under                                                                                                                                                                                                                                                                                                                                                                                                                                                                          



AS 09.06.010(c) because "[their] summary judgment motions sought declarations that                                                                                                                                                                                                                                                                                         



 [the initiative] was constitutional and [they] sought dismissal of [the Hughes plaintiffs']                                                                                                                                                                                                                                                                                                                                                                                                                                    



                                              10                                           The   Hughes   plaintiffs   claimed   that   the   Holman   intervenors   were   not  



 "plaintiff[s],   counterclaimant[s],   cross   claimant[s],   or   third-party   plaintiff[s]"   under  

AS 09.60.010(c)(1).   



                                                                                                                                                                                                                                                                                            -6-                                                                                                                                                                                                                                                                          7180
  


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

 complaint. [Their] claims were, therefore, in substance, counterclaims to [the plaintiffs']                                                                                                                                                                                        



 claims:   [they] sought the exact opposite result [the plaintiffs] sought."                                                                                                                                                                                   The court found                       



that this was true even though the Holman intervenors failed to raise counterclaims in                                                                                                                                                                                                                             



their answer.   



                                                 The court next sought to determine whether the Hughes plaintiffs were                                                                                                                                                                                  



 constitutional claimants and therefore exempt from paying fees.                                                                                                                                                                        The court decided that                                               



 "[t]hey filed non-frivolous constitutional claims on which they                                                                                                                                                               didnot prevail and [were]                                           



 subject to paying full, reasonable attorney's fees and costs only if they had an economic                                                                                                                                                                                             



 incentive to bring the action." The court then found that they had an economic incentive                                                                                                                                                                                                



to bring the claim because "[t]he only entity actually paying the intervenors' fees[,                                                                                                                                                                                                                



Pebble,] will be the entity with an undeniably 'sufficient economic incentive to file suit                                                                                                                                                                                                                   

                                                                                                                                                                                                                                                                                11  The court  

 even if the action involved only narrow issues lacking general importance.' "                                                                                                                                                                                                                          



 did  not  make  findings  whether  the  Holman  intervenors  had  a  sufficient  economic  

                                                                                                                                                                                                                                                                                     



 incentive to preclude constitutional-claimant status.  

                                                                                                                                                                    



                                                 The court provided an alternate ruling in the event that on appeal this court  

                                                                                                                                                                                                                                                                                                        



 determined the court was not permitted to consider Pebble's funding of the litigation.  

                                                                                                                                                                                                                                                                                                                              



 The court found that "[the Alaska Miners Association's] and [the Council of Alaska  

                                                                                                                                                                                                                                                                                                



Producers'] affidavits fail to make a prima facie showing of the interests of their typical  

                                                                                                                                                                                                                                                                                                  



members so that the court can assess the organizational economic incentives."   The  

                                                                                                                                                                                                                                                                                                         



 Council noted only that it was a trade group "representing Alaska's large metal mining  

                                                                                                                                                                                                                                                                                                



 industry";  the court found that the Council therefore failed to provide it with sufficient  

                                                                                                                                                                                                                                                                                        



 evidence                                 to              determine                                    the                  Council's                                    constitutional-claimant                                                                        status                        under  

                                                                                                                                                                                                                                                                                              



AS 09.60.010(c)(1).   Similarly, the court found that the Alaska Miners Association  

                                                                                                                                                                                                                                                                              



                         11                      (The superior court quoted                                                                             Citizens Coalition for Tort                                                                                Reform, Inc. v.                                 



McAlpine, 810 P.2d 162, 171 (Alaska 1991) (discussing economic incentive under                                                                                                                                                                                                                      

 former public-interest-litigant doctrine).                                                                    



                                                                                                                                                         -7-                                                                                                                                             7180
  


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

 identified   classes   of   members,   but   it   failed   to   provide   information   concerning  its  



members' typical economic interests.                                                                                                                                                    The court concluded that the two organizations                                                                                                    



therefore waived their claims to constitutional-claimant status.                                                                                                                                                                                                               



                                                                 The court next analyzed whether Hughes was a constitutional claimant.                                                                                                                                                                                                                                                                                                



 The court noted that his affidavit disclaimed any economic interest in the litigation and                                                                                                                                                                                                                                                                                                                       



that he therefore had made a prima facie showing that he had no financial interest in the                                                                                                                                                                                                                                                                                                                           



 litigation.   But the court concluded that the Holman intervenors "submitted evidence                                                                                                                                                                                                                                                                                                 



tending to rebut [this] prima facie showing." Because the ongoing relationship between                                                                                                                                                                                                                                                                                                     



 Hughes and Pebble was unclear, the court stated that the Holman intervenors would be                                                                                                                                                                                                                                                                                                                                  



permitted discovery on that issue if this court disagreed with the superior court's primary                                                                                                                                                                                                                                                                                                  



ruling. Finally, the superior court found that most of the Holman intervenors' fees were                                                                                                                                                                                                                                                                                                                   



reasonable.  



                                                                 The Hughes plaintiffs appeal.                                                                               



 III.                            STANDARD OF REVIEW                                                                       



                                                                 "Interpretation of AS 09.60.010 is a question of law to which we apply our                                                                                                                                                                                                                                                                        



 independent judgment.                                                                                               When interpreting statutes, '[w]e look to "the meaning of the                                                                                                                                                                                                                                 



 language, the legislative history, and the purpose of the statute in question" ' and 'adopt                                                                                                                                                                                                                                                                                                        

 "the rule of law that is most persuasive in light of precedent, reason, and policy." ' "                                                                                                                                                                                                                                                                                                                      12  



 IV.                             DISCUSSION  



                                                                 In 2003the AlaskaLegislaturepassedAS09.60.010(c), whichprovides for  

                                                                                                                                                                                                                                                                                                                                                                                                                      



 an award of reasonable attorney's fees to successful constitutional claimants and an  

                                                                                                                                                                                                                                                                                                                                                                                                                      



                                 12                             Alaska Conservation Found. v. Pebble Ltd. P'ship                                                                                                                                                                                                               , 350 P.3d 273, 279                                                             



 (Alaska 2015) (alterations in original)                                                                                                                                                             (first quoting                                                     Fancyboy v. Alaska Vill. Elec.                                                                                                  

 Coop., Inc.                                           , 984 P.2d 1128, 1132 (Alaska 1999); then quoting                                                                                                                                                                                                      Krone v. State, Dep't of                                                                                   

Health & Soc. Servs.                                                                                  , 222 P.3d 250, 252 (Alaska 2009)).                                                                                                                                             



                                                                                                                                                                                                            -8-                                                                                                                                                                                             7180
  


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

                                                                                                                                           13  

exemption from paying attorney's fees for unsuccessful constitutional claimants.                                                                This  

statute abrogated and replaced Alaska's common-law public-interest-litigant doctrine.                                                                14  



In  crafting  the  constitutional-claimant  provision,  the  legislature  incorporated  the  

                                                                                                                                                  



"sufficient economic incentive" exception that we had earlier developed in our public- 

                                                                                                                                            



                                     15 

interest-litigant cases                 :  

                             



                                   In      a     civil       action         or     appeal          concerning              the  

                                                                                                 

                       establishment, protection, or enforcement of a right under the  

                                                                                                                            

                       United States Constitution or the Constitution of the State of  

                                                                                                                             

                       Alaska, the court . . . may not order a claimant to pay the  

                                                                                                                           

                       attorney  fees  of  the  opposing  party  devoted  to  claims  

                                                                                                              

                       concerning constitutional rights if the claimant as plaintiff,  

                                                                                                                  

                       counterclaimant, cross claimant, or third-party plaintiff in the  

                                                                                                                            

                       action or appeal did not prevail in asserting the right, the  

                                                                                                                

                       action or appeal asserting the right was not frivolous, and the  

                                                                                                                            

                       claimant did not have sufficient economic incentive to bring  

                                                                                                                        

                       the action or appeal regardless of the constitutional claims  

                                                                                                                     

                       involved.[16]  



The parties agree that the Hughes plaintiffs sought "the establishment, protection, or  

                                                                                                                                                    



enforcement of a right under . . . the Constitution of the State of Alaska"; the only  

                                                                                                                                                



disagreement concerns the question of "sufficient economic incentive."  The superior  

                                                                                                                                          



court ruled that Pebble, and not the named plaintiffs, was the real party in interest and  

                                                                



that Pebble had "sufficient economic incentive to bring the action."  

                                                                                                         



                       The superior court's determination that Pebble was the real party in interest  

                                                                                                                                            



may have been based on our comment in Alaska Conservation Foundation v. Pebble  

                                                                                                                                            



            13         Id.  at 280.   



            14         Id.  



            15  

                                  

                       Id. at 281.  



            16  

                               

                       AS 09.60.010(c)(2).  



                                                                         -9-                                                                   7180
  


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

Limited Partnership                       where we said, "We do not suggest that there never could be a third                                                       



party    seeking    some    direct    economic    benefit    by    funding    a    nominal    plaintiff's  



constitutional litigation, and we agree that in such an instance the third party's direct                                                                          



                                                                                                                                                                           17  

economic incentive might be relevant to an attorney's feesaward under AS 09.60.010."                                                                                            



But we have never actually held that a third party could be the real party in interest for  

                                                                                                                                                                         



the purposes of this statute.  We do not reach this question today because we hold that  

                                                                                                                                                             



this case is fundamentally about constitutional limits on the ballot-initiative process and  

                                                                                                                                                                        



that therefore the Hughes plaintiffs did not have "sufficient economic incentive" to  

                                                                                                                                                                          



remove them from constitutional-claimant status.  

                                                                                       



                           This case is the mirror image of Alaska Conservation Foundation .  In that  

                                                                                                                                                                       



case  individual  Alaskans  and  a  non-profit  organization  sued  the  State  for  alleged  

                                                                                                                                                               

                                                                                                                                                         18     Pebble  

constitutional violations in issuing land and water use permits to Pebble.                                                                                      

                                                                                                                                          

intervened on the side of the State, and the State and Pebble were ultimately victorious.19  

                                                                                                                                                                                



The plaintiffs in that case sought to prove constitutional-claimant status to avoid an  

                                                                                                                                                                         

                                                   20    Pebble sought and the superior court granted discovery to  

award of attorney's fees.                                                                                                                                                  

                    

determine the plaintiffs' funding sources.21                                             We reversed that discovery order.22  

                                                                                                                                                  



              17           Alaska Conservation Found.                                , 350 P.3d at 285.
         



              18           Id.  at 275.
   



              19           Id.
  



              20           Id.
  



              21           Id.  at 276-78.   



              22           Id. at 275.  

                                       



                                                                                   -10-                                                                             7180
  


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

                      We   explained   that   "[e]conomic   interest   need   not   take   the   form   of  



                 23  

damages,"                                                                                                                        

                     but "courts must 'look to the facts of the case to determine the litigant's  

                                                                  24  We concluded that there was not "sufficient  

                                                                                                                              

                                                                 

primary motivation for filing the suit.' " 



economic incentive" because the "case [was] only about constitutional limitations on the  

                                                                                                                                           



State's issuance of land and water use permits to Pebble and not about whether the  

                                                                                                                                          



Pebble Project should proceed or whether the Pebble Project may harm Bristol Bay  

                                                                                                                                        

fisheries."25   "We reiterate[d] and emphasize[d] the necessity of direct economic benefit  

                                                                                                                                    



from constitutional litigation for 'sufficient economic incentive' " and cautioned that  

                                                                                                                                         



"[f]ocusing on the funding of constitutional litigation rather than on the litigation itself  

                                                                                                                                       

to determine primary purpose . . . can lead easily to the wrong result."26                                              Regardless of  

                                                                                                                                            



the sources of their funding, the plaintiffs in Alaska Conservation Foundation qualified  

                                                                                                                                 



as constitutional claimants.  

                             



                      Thesameanalysis applies here. Thiscaseisabout constitutional limitations  

                                                                                                                              



on the ballot-initiative process and not about whether the Pebble Project should proceed.  

                                                                                                                                                 



The Holman intervenors argue that Pebble had a direct economic incentive to bring the  

                                                                                                                                           



action because the initiative "injects uncertainty on the question of whether the Pebble  

                                                                                                                                    



Project will ultimately be approved by the legislature." They note that uncertainty alone  

                                                                                                                                       



"can scare off financing and derail the [P]roject at very early stages" and "have an  

                                                                                                                                           



immediate impact in the form of lowering the stock prices of companies associated with  

                                                                                                                                        



the Project, such as [Pebble]."  But we held in Alaska Conservation Foundation that "it  

                                                                                                                                           



           23         Id.   at 282 (quoting            Matanuska-Susitna Borough Sch. Dist. v. State                                  , 931   



P.2d 391, 403 (Alaska 1997)).          



           24         Id.  (quoting  O'Callaghan  v.  State,  920  P.2d   1387,   1390  (Alaska   1996)).  



           25         Id.  at  284.  



           26         Id.  at  285.  



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was error for the superior court to look at future possibilities and contingencies well                                                                            



                                                                           27  

outside the contours of the litigation."                                                                                                                   

                                                                                The same is true here:  uncertainty or possible  



                                                                                                                                                                     

future gains or losses do not  constitute "sufficient economic incentive to bring the  



                                                                                                                                                       

action" where the primary purpose of the litigation was to bring constitutional challenges  



                      

to a ballot initiative.  



                                                                                                                                                              

                           It is undoubtedly true that requiring legislative approval for the Pebble  



                                                                                                                                                                 

Project will add to the level of uncertainty around the Pebble Project. But we have never  



                                                                                                                               

required that parties seeking constitutional-claimant status - or public-interest-litigant  

                                                                                                                                                         28    Doing  

                                                                                                                                                               

status under our former framework - be completely disinterested in the case. 



 so  would  likely  eliminate  the  constitutional-claimant  rule  altogether.                                                                    This  case  is  

                                                                                                                                                                       



fundamentally about the ballot-initiative process and not a case about whether the Pebble  

                                                                                                                                                               



Project should go forward.  We have repeatedly underscored the public-interest nature  

                                                                                                                                                               

of suits involving elections.29  

                                     



             27           Id.  at 284.   



             28            See, e.g.       ,  Ninilchik Traditional Council v. Noah                                      , 928 P.2d 1206, 1218-19          



(Alaska 1996) (holding that a marginal economic incentive for the litigants did not  

                                                                                                                                                                     

preclude themfromasserting public-interest-litigant status);                                                          KodiakSeafoodProcessors         

Ass'n v.  State , 900 P.2d 1191, 1193, 1198-99 (Alaska 1995) (holding that seafood                                                                          

producers   were   public   interest   litigants   because   they   would   only   benefit  from   the  

litigation if other administrative barriers were overcome).  

                                                                                            



             29            See,  e.g.,  Municipality  of  Anchorage  v.  Citizens  for  Representative  

                                                                                                                                             

 Governance, 880 P.2d 1058, 1062 (Alaska 1994) ("The proposition that our democratic  

                                                                                                                                                      

 society has a strong public interest in fair elections is tautological."); id. at 1061-63  

                                                                                                                                                           

(reviewing past public-interest-litigant cases and noting that "a number of cases stand for  

                                                                                                                                                                      

the proposition that normal compensation of an elected office is not sufficient economic  

                                                                                                                                                         

incentive to defeat the public interest status of an officeholder or candidate seeking to  

                                                                                                                                                                        

vindicate a public interest").  

                                     



                                                                                  -12-                                                                           7180
  


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

                                                                       We reiterate and emphasize - again - that                                                                                                                                                                                                             direct   economic benefit is                                                                                                          



needed for there to be "sufficient economic incentive to bring the action."  Possible or                                                                                                                                                                                                                                                     



 speculated   impact   is  not   enough.     We   hold   that   because   this   case   concerns   the  



 constitutionality of a ballot initiative, Hughes, the Alaska Miners Association, and the                                                                                                                                                                                                                                                                                                                                                                   



 Council of Alaska Producers did not have a "sufficient economic incentive to bring the                                                                                                                                                                                                                                                                                                                                                                      



 action."    Therefore, they are protected from an award of attorney's fees pursuant to                                                                                                                                                                                                                                                                                                                                                                          



AS 09.60.010(c) regardless of the real party in interest and regardless of the economic                                                                                                                                                                                                                                                                                                                                  



 interests of the Alaska Miners                                                                                                                                              Association's and the Council of Alaska Producers'                                                                                                                                                                                  

typical members.                                                                            30  



V.                                  CONCLUSION  



                                                                       WeREVERSEthesuperior court's award offullattorney's fees to Holman,  

                                                                                                                                                                                                                                                                                                                                                                                                                                



Niver, and Salmon.  

                                                           



                                    30                                 We do not reach the superior court's ruling that it would permit discovery                                                                                                                                                                                                                                                                        



 into Hughes's relationship with Pebble.  But we again reiterate that "[f]ocusing on the                                                                                                                                                                                                                                                                                                                                                                    

 funding ofconstitutional litigation                                                                                                                                                 rather than                                               on thelitigation itselftodetermineprimary                                                                                                                                            

purpose . . . can lead easily to the wrong results" and that discovery orders of this nature                                                                                                                                                                                                                                                                                                                                                

 could raise constitutional concerns.                                                                                                                                                        Alaska Conservation Found.                                                                                                                                    , 350 P.3d at 285.                                                                           We  

 also do not address whether intervenor-defendants can be constitutional claimants under                                                                                                                                                                                                                                                                                                                                                       

AS 09.60.010. It is sufficient for purposes of this case to hold that because the plaintiffs                                                                                                                                                                                                                                                                                                                                 

were unsuccessful constitutional claimants who did not have a "sufficient economic                                                                                                                                                                                                                                                                                                                                     

 incentive to bring the action," they are protected from an award of attorney's fees.                                                                                                                                                                                                                                                                                                                                        



                                                                                                                                                                                                                             -13-                                                                                                                                                                                                                   7180
  

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