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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Summer Sagoonick, et al. v. State of Alaska, et al. (1/28/2022) sp-7583

Summer Sagoonick, et al. v. State of Alaska, et al. (1/28/2022) sp-7583

        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.gov.  



                  THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



SUMMER  SAGOONICK;  LINNEA  L.,  a  )
  

minor,  by  and  through  her  guardian,               )
                            

                                                           Supreme Court No. S-17297  

HANK  LENTFER;  TASHA  ELIZARDE;  )
  

CADE  TERADA;  KAYTLYN  KELLY;                         )
                                                

                                                           Superior Court No. 3AN-17-09910 CI  

BRIAN  CONWELL;  JODE  SPARKS;                         )
  

MARGARET  "SEB"  KURKLAND;                             )
                  

                                                           O P I N I O N  

LEXINE  D.,  a  minor,  by  and  through  her   )
  

guardian,  BERNADETTE                                  )
                                 

                                                          No. 7583 - January 28, 2022  

DEMIENTIEFF;  ELIZABETH                                )
  

BESSENYEY;  VANESSA  DUHRSEN;                          )
  

ANANDA  ROSE  AHTAHKEE  L.,  a                         )
  

minor,  by  and  through  her  guardian,               )
  

GLEN  "DUNE"  LANKARD;  GRIFFIN                        )
  

PLUSH;  CECILY  S.  and  LILA  S.,  minors, )
  

by  and  through  their  guardians,                    )
  

MIRANDA  WEISS  and  BOB                               )
  

SHAVELSON;  and  ESAU  SINNOK,                         )
  

                                                       )
  

                         Appellants,                   )
  

                                                       )
  

        v.                                             )  

                                                       )  

                                                       )  

STATE OF ALASKA; OFFICE OF  

                                                       )  

GOVERNOR and GOVERNOR MIKE  

                                                       )  

DUNLEAVY, in an official capacity;  

                                                       )  

DEPARTMENT OF ENVIRONMENTAL 

                                                       )  

CONSERVATION and  

                                                       )  

COMMISSIONER JASON BRUNE, in an 

                                                       )  

official capacity; DEPARTMENT OF  

                                                       )  

NATURAL RESOURCES; ALASKA  

                                                       )  

OIL & GAS CONSERVATION  

                                                       )  

COMMISSION; ALASKA ENERGY  

                                                       )  


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

AUTHORITY;  and  REGULATORY                                          )
  

COMMISSION  OF  ALASKA,                                              )
  

                                                                     )
  

                                Appellees.                           )
  

                                                                     )
  



                                                                                                              

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

                                                                                                

                     Judicial District, Anchorage, Gregory Miller, Judge.  



                                                                                                          

                     Appearances:   Brad D.  De Noble,  De Noble  Law  Offices  

                                                                                                         

                     LLC, Eagle River, and Andrew L. Welle, Eugene, Oregon,  

                                                                                                       

                     for Appellants.  Anna R. Jay and Laura E. Wolff, Assistant  

                                                                                                      

                     Attorneys  General,  Anchorage,  and  Kevin  G.  Clarkson,  

                                                                                                           

                     Attorney General, Juneau, for Appellees.  Elizaveta Barrett  

                                                                                                         

                     Ristroph, Fairbanks, for Amicus Curiae League of Women  

                                                                                                                 

                     Voters Alaska.  Teresa B. Clemmer, Peter Van Tuyn, and Jen  

                                                                                                             

                     Marlow, Bessenyey & Van Tuyn LLC, Anchorage, for Amici  

                                                                          

                     Curiae Law Professors.  Robert John, Law Office of Robert  

                                                                                                  

                     John,  Fairbanks,  for  Amici   Curiae  Alaska  Inter-Tribal  

                                                                                                  

                     Council, Eyak Preservation Council, andNative Conservancy  

                                        *  

                                

                     Land Trust. 



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

                                                                                                       

                     and Carney, Justices.  

                                           



                     WINFREE, Justice.
  

                                          

                     MAASSEN and CARNEY, Justices, dissenting in part.
  

                                                                                                                



I.         INTRODUCTION  



                     Alaska Constitutional Convention keynote  speaker E.L. "Bob" Bartlett,  

                                                                                                                              



territorial Alaska's delegate to Congress and later one of Alaska's original United States  

                                                                                                                                  



Senators,  spoke  on  November  8,  1955  about  the  importance  of  Alaska's  natural  

                                                                                                                               



resources for future generations: "[F]ifty years from now, the people of Alaska may very  

                                                                                                                                     



           *         We thank amici curiae for their participation in this appeal.                        



                                                                   -2-                                                             7583  


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

well  judge   .   .   .   this   Convention   not   by   the   decisions   taken   upon   issues   like   local  



government,   apportionment,   and   the structure and                                         powers of the three                    branches of   



                                                                                                                                                          1  

government, but rather by the decision taken upon the vital issue of resources policy."                                                                       



                                                                                                                                                      

Bartlett particularly stressed the need to protect Alaska's natural resources from the  

                                                                                                                         2  And a convention  

                                                                                                                                        

"robber baron philosophy" that in the past had damaged the territory. 



consultant later noted:  "[W]hat we say about natural resources is not limited simply to  

                                                                                                                                                         



lands and to fish . . . , but rather being concerned with how we as human beings are  

                                                                                                                                                      



going to utilize those so that they become a part of the continuing future development of  

                                                                                                                                                         

an area like Alaska."3  

                       



                        More than six decades after Alaska's constitution was drafted, we consider  

                                                                                                                                             



its natural resources provisions in a manner likely not contemplated by Bartlett or the  

                                                                                                                                                 



convention delegates.  Concerns about protecting and developing natural resources for  

                                                                                                                                                       



the State's financial support now co-exist with concerns that constitutionally driven  

                                                                                                                                                



resource development creates an existential threat to human life and therefore itself  

                                                                                                                                                   



violates individuals' fundamental rights under Alaska's constitution.  

                                                                                                      



                        A number of young Alaskans - including several Alaska Natives - sued  

                                                                                                                                                    



the State, alleging that its resource development is contributing to climate change and  

                                                                                                                                                      



            1           6 Proceedings of the Alaska Constitutional Convention (PACC) App. II at                                                          



3   (Nov.   8,   1955)   (address   of   Cong.   Del.  E.L.   Bartlett);   see   also   VICTOR   FISCHER,  

   LASKA 'S CONSTITUTIONAL CONVENTION  130 (1975).   

A                                                                             



            2           FISCHER, supra note 1, at 130; see also Mallot v. Stand for Salmon, 431  

                                                                                                                                                     

P.3d 159, 164 (Alaska 2018) ("For more than two centuries, Alaska's economy has been  

                                                                                                                                                    

centered around the development and harnessing of its natural resources, from the fur  

                                                                                                                                                       

trade of the 18th and 19th Centuries and the gold rushes of the 1890s, to the growth of  

                                                                                                                                                        

copper mining and commercial fishing in the early 20th Century and the oil discoveries  

                                                                                                                                        

of the 1950s and 1960s.").  

                                



            3           1 PACC 475 (Dec. 1, 1955) (statement of Vincent Ostrom).  

                                                                                                                    



                                                                           -3-                                                                     7583
  


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

adversely affecting their lives.  They sought declaratory and injunctive relief based on  



allegations that the State has, through existing policies and past actions, violated both the  

                                                                                                                                                           



constitutionalnatural resources provisions and their individual constitutional rights. The  

                                                                                                                                                          



superior  court  dismissed  the  lawsuit,  concluding  that  the  injunctive  relief  claims  

                                                                                                                                                   



presented  non-justiciable  political  questions  better  left  to  the  other  branches  of  

                                                                                                                                                           



government  and  that  the  declaratory  relief  claims  should,  as  a  matter  of  judicial  

                                                                                                                                                 



prudence, be left for actual controversies arising from specific actions by Alaska's  

                                                                                                                                               



legislative and executive branches.   The young Alaskans appeal, raising compelling  

                                                                                                                                           



concerns about climate change, resource development, and Alaska's future.   But we  

                                                                                                                                                          



conclude that the superior court correctly dismissed their lawsuit.  

                                                                                                           



II.	         SEPARATION OF POWERS IN ALASKA'S NATURAL RESOURCES  

                                                                                                                                   

            MANAGEMENT  



            A.	          Constitutional                  Natural             Resource              Policy          And         Framework                   -  

                                                                                                                                                         

                         Article VIII  

                                        



                         It was widely recognized that the Alaska Territory's future success as a  

                                                                                                                                                              

state would depend upon natural resource development.4   Statehood bills pending during  

                                                                                                                                                    



theConstitutionalConventioncontemplated transferring totheproposedstatesubstantial  

                                                                                                                                             

federal land, subsurface mineral rights, and the authority to manage fish and wildlife.5  

                         

                                                                                                                                                                  



            4            GORDON  HARRISON, A                       LASKA  LEGISLATIVE  AFFAIRS  AGENCY, A                                      LASKA 'S  



CONSTITUTION:                        A   CITIZEN'S               GUIDE           129-30           (5th        ed.      2021),          available           at:  

                                                                

http://akleg.gov/docs/pdf/citizens_guide.pdf;  seealso                                           PUBLIC ADMINISTRATION SERVICE,  

   HE ALASKAN  CONSTITUTION AND THE  STATE PATRIMONY :  THE  CONSTITUTION AND  

T                                                                                                                                                       

NATURAL RESOURCES  14 (1955) (stating, in report to convention delegates, that "[f]ew                                                               

                    

will quarrel with the statement that Alaska's greatest single source of potential wealth                                                            

lies below the surface of the land").                 



            5            FISCHER, supra  note 1, at 129-30 ("According to the terms of pending  

                                                                                                                                                 

Alaska statehood bills, more than 100 million acres would be transferred from federal  

                                                                                                                                                   

to state ownership."); HARRISON, supra note 4, at 129; cf. Alaska Statehood Act, Pub.  

                                                                                                                           

                                                                                                                                       (continued...)  



                                                                             -4-	                                                                     7583
  


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

The convention delegates "sought to enshrine in the state constitution the principle that                                                                                                      



the resources of Alaska must be managed for the long-run benefit of the people as a                                                                                                                 



                  6  

                                                                                                                                                                                   

whole."                 Rather than developing a detailed constitutional code governing resource  



                               7  

                                                                                                                                                                                       

management,  the delegates sought to protect the long-term viability of Alaska's natural  



                                                                                                                                                                                      

resources from "the indifference or avarice of future generations" by fixing "the general  



                                                                                                                                                                                                     8  

                                                                                                                                                                                                         

concept of the public interest" in both Alaska law and "the consciousness of Alaskans." 



                                                                                                                                         9                                                   10  

                                                                                                                                                                                                   

The delegates incorporated concepts such as "common use"                                                                                    and "sustained yield"                                 to  



               5               (...continued)  



                                                                                                                                                                                              

L. No. 85-508,  6, 72 Stat. 339, 340-41 (1958) (allowing Alaska to select over 100  

                                                                                                                                                                                                  

million acres of federal public lands and contemplating eventual transfer to Alaska of  

                                                                                                                                                                                                  

authority to manage fish and wildlife); Alaska Land Transfer Acceleration Act, Pub. L.  

                                                                                                                                                                                           

No. 108-452, 118 Stat. 3575 (2004) (facilitating transfer to Alaska of some federal lands  

                                                                                          

selected pursuant to Alaska Statehood Act).  



               6               HARRISON, supra note 4, at 129.  But see William L. Iggiagruk Hensley &  

                                                                                                                                                                                                   

John Sky Starkey, Alaska Native Perspectives on the Alaska Constitution , 35:2 ALASKA  

                                                                                                                                                                                    

L.   REV. 129-37 (2018) (asserting connection between insufficient representation of                                                                                                              

Alaska Natives at Constitutional Convention and insufficient protections for Alaska                                                                                                   

Native rights under article VIII).                                           



               7               See Native Vill. of Elim v. State, 990 P.2d 1, 7 (Alaska 1999) ("The plain  

                                                                                                                    

language of [article VIII, section 4] requires resource managers to apply . . . principles;  

                                                                                                                                                                             

it does not mandate the use of a predetermined formula, quantitative or qualitative.").  

                                                                                                                                                                     



               8               HARRISON, supra note 4, at 129; see West v. State, Bd. of Game, 248 P.3d  

                                                                                                                                                                                             

689, 696 (Alaska 2010) ("The [natural resources] article's primary purpose is to balance  

                                                                                                                                                                                      

maximum  use  of  natural  resources  with  their  continued  availability   to   future  

                                                                                                                                                 

generations."   (alteration                                    in       original)                (quoting                THE           ALASKA                  CONSTITUTIONAL  

                                                                                                                      

CONVENTION, PROPOSED CONSTITUTION FOR THE STATE OF ALASKA: A REPORT TO THE  

                                                                                                                                                                                               

PEOPLE OF ALASKA  (1956))).  

                           



               9               AlaskaConst.art.                         VIII,  3 ("Wherever occurring in their natural state, fish,                                                          



wildlife, and waters are reserved to the people for common use.");                                                                                   see Owsichek v. State,               

Guide Licensing & Control Bd., 763 P.2d 488, 493 (Alaska 1988) ("[The common use  

                                                                                                                                                                                               

                                                                                                                                                                        (continued...)  



                                                                                                -5-                                                                                        7583
  


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

promote "a harmonious balance between consumption, preservation, and expansion of                                                                                       



                                     11  

natural resources."                                                                                                                                             

                                         They further protected the public interest by requiring public notice  



                                                                                                                                        12  

                                                                                                                     

and development of statutory guidelines for state property disposals. 



                                                                                                                                                           

                          Article VIII, sections 1 and 2 of the Alaska Constitution express Alaska's  



                                                                                                                                         

resource development policy and direct the legislature to implement it:  



             9             (...continued)  



                                                                                                                                                            

clause] was a unique provision, not modeled on any other state constitution. Its purpose  

                                                                                                                                                                    

was anti-monopoly.  This purpose was achieved by constitutionalizing common law  

                                                                                                                                                                        

principles imposing upon the state a public trust duty with regard to the management of  

                                        

fish, wildlife[,] and waters.").  



             10           Alaska Const. art. VIII,  4 ("Fish, forests, wildlife, grasslands, and all  

                                                                                                                                                                      

other replenishable resources belonging to the State shall be utilized, developed, and  

                                                                                                                                                                    

maintained on the sustained yield principle, subject to preferences among beneficial  

                                                                                                                                                        

uses.").   The glossary definition of "sustained yield" provided by the Constitutional  

                                                                                                                                               

Convention's Resources Committee is:  "[T]he term 'sustained yield principle' . . . .  

                                                                                                                                                                        

denotes  conscious  application  insofar  as  practicable  of  principles  of  management  

                                                                                                                                                 

intended to sustain the yield of the resource being managed."  RESOURCES  COMMITTEE  

                                                                                                                           

                     ALASKA              CONSTITUTIONAL                         CONVENTION,                     Terms            (1955),           http://www.  

OF       THE                                                                  

akleg.gov/pdf/billfiles/ConstitutionalConvention/Folder%20210.pdf;  seeWest                                                                             ,248P.3d     

at 695-96 (discussing broad meaning of "sustained yield" in wildlife context);                                                                             see also   

AS    38.04.910(12)    (defining    "sustained    yield"    in    public    lands    context    as    "the  

achievement and maintenance in perpetuity of a high level annual or regular periodic                                                                       

output of the various renewable                               resources of the state land consistent with multiple use").                                       



             11           FISCHER, supra note 1, at 130; see also GERALD A.M                                                    CBEATH, THE ALASKA  

                                                                                                      

STATE CONSTITUTION   157-59 (2011); H                                           ARRISON,  supra  note 4, at 130.                    

               



             12  

                                                                                                                                                                  

                          Alaska Const. art. VIII,  10 ("No disposals or leases of state lands . . . shall  

                                                                                                                                

be made without prior public notice and other safeguards of the public interest . . . .");  

id.  at  9-10 (authorizing legislature to regulate state land disposals);                                                                  see  HARRISON,  

supra note 4, at 130 ("With certain exceptions, [article VIII] allows the government to  

                                                                                                                                                                        

sell, lease or give away public land and resources, but it may do so only in accordance  

                                                                                                                                                      

with constitutional and statutory guidelines, and all transactions must be in full public  

                                                                                                                                                               

view.").  



                                                                                   -6-                                                                           7583
  


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

                                      Section 1.           Statement of Policy.                    It is the policy of the           

                         State    to    encourage    the    settlement    of    its    land    and    the  

                         development of its resources by making them available for                                                   

                         maximum use consistent with the public interest.                                             [13]  



                                      Section 2.  General Authority.  The legislature shall  

                                                                                                                                  

                         provide for the utilization, development, and conservation of  

                                                                                                                                       

                         all natural resources belonging to the State, including land  

                                                                                                                                  

                         and waters, for the maximum benefit of its people.[14]  

                                                                                                           



             13          See  HARRISON,  supra  note 4,                        at 131 ("This is an emphatic statement that the                                 



policy of the state is to encourage the development of its land and resources, but in a                                                                           

manner that recognizes the collective interests of the people as the owners of these lands                                                                

                                                           CBEATH,  supra  note  11,  at  159  ("Delegates  to  the  

and   resources.");   see   also   M                                                                                                                         

constitutionalconvention wereuniformin their beliefthat Alaska's natural resources had  

                                                                                                                                                              

been 'locked up' and devalued by the negligent actions of the federal government and  

                                                                                                                

absentee owners . . . . Thus, the delegates were committed to the maximum development  

                                                                                                                                            

of Alaska's resources.  However, they hedged their need to exploit resources with the  

                                                                                                                                                              

requirement that resource use was a public trust.").  

                                                                                   



             14          See  HARRISON, supra  note 4, at 131 ("This section is a broad grant of  

                                                                                                                                                                

legislative authority to implement the policy enunciated in Section 1 . . . . In addition to  

                                                                                                                                                                

utilization  and  development,  conservation  appears  as  an  objective  of  resource  

                                                                                                                                                  

management. The delegates understood the term in its traditional sense of 'wise use.' ");  

                                                                                                                                                               

MCBEATH, supra note 11, at 159 (stating that delegates "were influenced by the modern  

                                                                                                                                                      

principles of resource conservation and use, such as sustained yield and multiple use,  

                                                                                                                                                            

which  they  made  the  constitutional  objectives  for  all  resource  policy  decisions,  as  

                                                                                                                                                               

expressed in the phrase, 'maximum use consistent with the public interest' " (quoting  

                                                                                                                                                   

AlaskaConst. art. VIII, 1)); see also Kenai Peninsula Fisherman'sCoop.Ass'nv. State,  

                                                                                                                                                          

628 P.2d  897,  903  (Alaska 1981)  ("The terms 'conserving'  and  'developing'  both  

                                                                                                                                                           

embody concepts of utilization of resources. 'Conserving' implies controlled utilization  

                                                                                                                                                 

of a resource to prevent its exploitation, destruction or neglect.  'Developing' connotes  

                                                                                                                                                   

management of a resource to make it available for use.").  

                                                                                                 



                                                                               -7-                                                                        7583
  


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

                                                                                                                                 15  

                     Beyond thosesections,                articleVIIIexplicitlyaddresses"commonuse"                                 and  



                             16  

"sustained yield";                                                                                                           

                                the "public domain" available for settlement and certain property  

        17                                                    18                        19                    20 fishing rights;21  

                                                                                                                              

                                                                                                     

                                                                                           water rights; 

                                                                 mineral rights; 

uses;      disposition of property interests; 



           15        See  Alaska  Const.  art.  VIII,    3.  



           16        See  id.    4.  



           17        See  id.    5-7;  State,  Dep't  of  Nat.  Res.  v.  Alaska  Riverways,  Inc.,  232  P.3d  



1203,   1212-14  (Alaska  2010)  (discussing  article  VIII,  section  6  and  "public  domain").  



           18        Alaska  Const.  art.  VIII,     8  (regarding  leasing),  9 (regarding  sales  and  



grants),     10  (regarding  public  notice).  



           19        Id.   11 (regarding mineral rights),  12 (regarding mineral leases).  

                                                                                                                     



           20        Id.    13 (regarding  water  rights),    14 (regarding  access  to  navigable  

                                                                                                                           

waters); see Tulkisarmute Native Cmty. Council v. Heinze, 898 P.2d 935, 940-41 (Alaska  

                                                                                                                               

1995) (acknowledging article VIII,  section  13 constitutionalizes water  appropriation  

                                                                                                                     

doctrine).  



           21        Alaska Const. art. VIII,  15 ("No exclusive right or special privilege of  

                                                                                                                                       

fishery shall be created or authorized in the natural waters of the State. This section does  

                                                                                                                                    

not restrict the power of the State to limit entry into any fishery for purposes of resource  

                                                                                                                             

conservation, to prevent economic distress among fisherman and those dependent upon  

                                                                                                                                   

them for a livelihood and to promote the efficient development of aquaculture in the  

                                                                                                                                     

State."); see McDowell v. State, 785 P.2d 1, 5-10 (Alaska 1989) ("[S]ection 15 . . . was  

                                                                                                                                     

meant  to  ensure  an  equal  right  to  participate  in  fisheries,  regardless  of  where  one  

                                                                                                                                    

resides."); Kenai Peninsula Fisherman's  Coop. Ass'n  v. State, 628 P.2d 897, 903-04  

                                                                                                                               

(Alaska 1981) (interpreting article VIII, section 15).  

                                                                              



                                                                   -8-                                                            7583
  


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

                                                       22                                                                                                                                                  23  

private property rights;                                    equal treatment with respect to the use of natural resources;                                 



                                                                                                                                                                                                           24  

                                                                                                                                                                                    

and the right of eminent domain for the access, extraction, and use of natural resources. 



                                ArticleVIIIwas,whenapproved,themostcomprehensivestateconstitution  

                                                                                                                                                                                   

                                                                                                                                                                                          25    and  it  

provision  addressing  natural  resource  management  policies  and  principles,                                                                                                                           

                                                                                                                                                                



reflects careful consideration of each government branch's role in managing Alaska's  

                                                                                                                                                                                          



                22              Alaska Const. art. VIII,  16 ("No person shall be involuntarily divested of                                                                                              



his right to the use of waters, his interests in lands, or improvements affecting either,                                                                                                      

except   for   a   superior   beneficial   use   or   public   purpose   and   then   only   with   just  

compensation and by operation of law.");                                                           see Alaska Riverways, Inc.                                     , 232 P.3d at 1213-            

 14 (interpreting article VIII, section 16 as applied to shoreland improvements made after                                                                                                           

statehood).  



                23              Alaska Const. art. VIII,  17 ("Laws and regulations governing the use or  

                                                                                                                                                                                                          

disposal of natural resources shall apply equally to all persons similarly situated with  

                                                                                                                                                                                                    

reference to the subject matter and purpose to be served by the law or regulation."); see  

                                                                                                                                                                                                       

McDowell, 785 P.2d at 9-11 ("[A]ny system which closes participation to some, but not  

                                                                                                                                                                                                       

all, [fish and game permit] applicants will necessarily create a tension with article VIII[,  

                                                                                                                                                                                                 

section 17]."); Owsichek v. State, Guide Licensing & Control Bd., 763 P.2d 488, 498  

                                                                                                                                                                                                      

n.17 (Alaska 1988) ("[W]e [have] noted that [article VIII, section 17] may require 'more  

                                                                                                                                                                                                 

stringent review' of a statute than does the equal protection clause in cases involving  

                                                                                                                                                                                        

natural resources." (quoting Gilman v. Martin, 662 P.2d 120, 126 (Alaska 1983))).  

                                                                                                                                                                                   



                24              Alaska Const. art. VIII,  18 (regarding eminent domain for private ways  

                                                                                                                                                                                                   

of necessity to obtain access to natural resources).  

                                                                                              



                25              See HARRISON, supra note 4, at 129 ("In drafting [article VIII], delegates  

                                                                                                                                                                                         

were unable to refer to other state constitutions or the Model State Constitution for ideas  

                                                                                                                                                                                                   

and guidance, as none of them dealt with natural resource policy as broadly as the  

                                                                                                                                                                                               

Alaskans thought necessary. At the time of Alaska's constitutional convention, only the  

                                                                                                                                                                                                        

Hawaii Constitution addressed natural resource policy in a separate article, and that  

                                                                                                                                                                                                     

article was brief." (emphasis omitted)).  But cf. William L. Iggiagruk Hensley & John  

                                                                                                                                                                                                   

 Sky Starkey, Alaska Native Perspectives on the Alaska Constitution , 35:2 ALASKA  L.  

                                                                                                                                                                                    

REV. 129-37 (2018) (asserting connection between insufficient representation of Alaska                                                                                                         

Natives at Constitutional Convention and insufficient protections for Alaska Native                                                                                                           

rights under article VIII).                                    



                                                                                                    -9-                                                                                            7583
  


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

resources and textually establishes the legislature's importance in this policy-making                                                                                                                                                                                                                                                                                                         



 area.   We consider the legislature's ensuing statutory policies and the young Alaskans'                                                                                                                                                                                                                                                                                                                                



claims in light of this constitutional framework.                                                                                                                                               



                                    B.                                  The Political Branches' Roles Under Article VIII                                                                                                                                                                                                             



                                                                        Article   VIII,   section   2,   commands  the   legislature   "to   provide   for   the  



utilization, development, and conservation of all natural resources belonging to the                                                                                                                                                                                                                                                                                                                                                                        



 State."   To satisfy this obligation the legislature has established numerous interrelated                                                                                                                                                                                                                                                                                                                      



 statutory policies and delegated implementation authority to the executive branch.                                                                                                                                                                                                                                                                                                                                                                      We  



briefly describe the legislature's policies, starting with land use policies, continuing with                                                                                                                                                                                                                                                                                                                                                          



 specific relevant policies, and concluding with an environmental protection policy.                                                                                                                                                                                                                                                                                                                                   



                                                                        1.                                  General land use and management policies                                                                                                                                                                 



                                                                        Title 38 of the Alaska Statutes contains the legislature's general public land                                                                                                                                                                                                                                                                                                  



 enactments.    The legislature's overall land management policy mirrors article VIII,                                                                                                                                                                                                                                                                                                                                                            



 section 1:                                           "It is the policy of the state to encourage the settlement of its land and the                                                                                                                                                                                                                                                                                                                          



development of its resources by making them available for the maximum use consistent                                                                                                                                                                                                                                                                                                                                     



                                                                                                                                  26  

with the public interest."                                                                                                                                                                                                                                                                                                                                                                                                                             

                                                                                                                                                On a more detailed level the legislature has directed that state  



                                                                                                                                                                                                                                                                                                                                                                                                                                           

lands be managed to balance both public and private purposes and that land use choice  



                                    26                                  AS 38.05.910;                                                                  see Alaska Survival v. State, Dep't of Nat. Res.                                                                                                                                                                                                                  , 723 P.2d                   



  1281, 1285 (Alaska 1986) ("Alaska's Constitution and the Alaska Land Act, AS 38.05,                                                                                                                                                                                                                                                                                                                                                        

 express a policy of encouraging settlement of the state's lands 'by making themavailable                                                                                                                                                                                                                                                                                                                                       

 for maximum use consistent with the public interest.' " (quoting Alaska Const. art. VIII,                                                                                                                                                                                                                                                                                                                                                           

  1; AS 38.05.910)),  superseded on other grounds by statute                                                                                                                                                                                                                                                                           , ch. 75,  10, SLA 1987,                    

asrecognized                                                              inSullivan                                               v. Resisting Env't Destruction onIndigenousLands                                                                                                                                                                                                                               (REDOIL),  

 311 P.3d 625, 630 (Alaska 2013).                                                                                                                 



                                                                                                                                                                                                                             -10-                                                                                                                                                                                                                     7583
  


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

be determined through inventory, planning, and classification processes established in     



                                        27  

AS 38.04.060-.070.                            



                           The legislature has delegated  to the Department of Natural Resources  

                                                                                                                                                         



(DNR), an executive branch agency, the duty to implement the legislature's general  

                                                                                                                                                               

public lands policies.28                          DNR classifies, and if necessary reclassifies, state lands for  

                                                                                                                                                            

various uses.29                 DNR also has a duty to work with local governments and the public to  

                                                                                                                                                             

adopt, maintain, and revise regional land use plans.30  

                                                                                            



                           The  legislature  has  further  delegated  to  DNR  authority  to  manage  

                                                                                                                                                              

"exploration, development, and mining" of resources on state lands31  and the authority  

                                                                                                                                                            



             27            AS   38.04.005-.015   (stating   general   land   classification   and   use   policy,  



public interest in making land available for private use, and public interest in retaining                                                                   

state land in public ownership).         



             28            AS 38.04.060(a)-(b) (outlining commissioner's duties); AS 38.04.910(1)  

                                                                                                                                                     

(identifying "commissioner" as commissioner of natural resources).  

                                                                                                                   



             29            AS 38.04.065(e); AS 38.05.300; see also State v. Wiedner, 684 P.2d 103,  

                                                                                                                                                                      

 107 (Alaska 1984) (stating that AS 38.04.065 generally requires land use plans prior to  

                                                                                                                                                                           

land  classifications);  cf.  AS  38.05.300(a),  (c)  (establishing  DNR's  discretion  for  

                                                                                                                                                                       

classification but restricting discretion to close large parcels of land to multiple-purpose  

                                                                                                                                             

use and to preclude mineral exploration and mining unless necessary for land disposal  

                                                                                                          

or certain projects).   We previously have discussed Alaska's land use management  

                                                                                                                                                    

procedures in more detail.  See generally State, Dep't of Nat. Res. v. Nondalton Tribal  

                                                                                                                                                                  

Council, 268 P.3d 293, 294-96 (Alaska 2012); Alaska Survival , 723 P.2d at 1289-91.  

                                                                                                                                                          



             30            AS 38.04.065(a), (d), (e); see also Denali Citizens Council v. State, Dep't  

                                                                                                                                                                   

of Nat. Res., 318 P.3d 380, 389 (Alaska 2014) (noting statutory duty to engage in  

                                                                                                                                                                          

regional land use planning does not indicate plan provisions are legally enforceable  

                                                                                                                                                      

against DNR); Nondalton Tribal Council, 268 P.3d at 304 n.93 (stating that although  

                                                                                                                                                             

regional land use plan informs future DNR policy, it likely is not enforceable by public  

                                                                                                                                                                  

against DNR).  

                               



             31            AS 27.05.010; AS 38.05.005-.020, .035, .135-.177.  

                                                                                                                                     



                                                                                   -11-                                                                             7583
  


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

                                                                                               32  

to lease state lands for oil and gas exploration.                                                   But the legislature has delegated to the                                 



Alaska Oil and Gas Conservation Commission, a different executive branch agency, the                                                                                          

authority to regulate oil and gas development for conservation purposes.                                                                              33  



                                                                                          

                            2.            Specific development policies  



                                                                                                                                                          

                            Thelegislaturehas enacted other statutory policies addressing fundamental  



                                                                                                                                                      

aspects of Alaska's natural resources management.   The legislature's long-standing  



                                                                                                                           34  

                                                                                                

economic development policy is found in AS 44.99.100(a): 



                                                                                                                                           

                                         To  further  the  goals  of  a  sound  economy,  stable  

                                                                                                                                  

                            employment, and a desirable quality of life, the legislature  

                                                                                                                                                

                            declares  that  the  state  has  a  commitment  to  foster  the  

                                                                                                                                                  

                            economy of Alaska through purposeful development of the  

                                                                                                                                                         

                            state's abundant natural resources and productive capacity.  

                                                                                                       

                            It is the legislature's intent that this development  



                                                                                                                                   

                                          (1)          offer            long-term                  benefits               and increased  

                                                                                                                      

                            employment to Alaskans by strengthening and diversifying  

                                                                                                                                

                            the state's economic base and encouraging new activities;  



                                                                                                                

                                          (2)          provide  opportunities  for  increased personal  

                                                                                                                                                  

                            income  or  reduced  living  costs  by  creating  activity  in  

                                                  

                            economic sectors;  



                                                                                                                                                 

                                          (3)          have a positive effect on the revenue needs and  

                                                                                                                                         

                            fiscal conditions of the state and local communities; [and]  



                                                                                                                                            

                                          (4)          be undertaken after consideration of the social  

                                                                                                                                              

                            and         economic                 views            of       citizens            impacted                by        the  



              32            AS 38.05.010, .131-.134, .180.                        



              33            AS 31.05.005-.170;                       Alaskan Crude Corp. v. State, Dep't of Nat. Res., Div.                                                



                                                                                                                                                                              

of  Oil  &  Gas,  261  P.3d  412,  414  n.3  (Alaska  2011)  (describing  commission  as  

independent quasi-judicial agency with authority over all state-regulated land to regulate                                                                         

                                                                                                                                                         

to prevent waste, ensure greater recovery, protect correlative rights and underground  

                                                                            

water, and further public health and safety).  



              34            Ch. 63,  1, SLA 1985.  

                                                                 



                                                                                     -12-                                                                                7583
  


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

                              development, and only after adequate protection is assured                                                         

                              for Alaska's environment.     



The legislature has made a related finding that Alaskans have an interest in oil and gas                                                                                                



development to "maximize the economic . . . recovery of those resources" and that it is                                                                                                     



in the State's best interests to encourage oil and gas resource assessments allowing                                                                                       



flexibility in leasing and minimizing the adverse impact of exploration, development,                                                                            



                                                                                      35  

production, and transportation activity.                                                    



                              Thelegislature'smorerecentArcticpolicyfocuseson economicand natural  

                                                                                                                                                                                 



resource  development  above  the  Arctic  Circle,  along  with  related  environmental  

                                                                                                                                                              

concerns, and is found in AS 44.99.105(a):36  

                                                                  



                                            It is the policy of the state, as it relates to the Arctic, to  

                                                                                                                                                              

                              . . . uphold the state's commitment to economically vibrant  

                                                                                                                                                  

                              communities sustained by development activities consistent  

                                                                                                                                            

                             with  the  state's  responsibility  for  a  healthy  environment,  

                                                                                                                                    

                              including  efforts  to  .  .  .  ensure  that  Arctic  residents  and  

                                                                                                                                                         

                              communities                       benefit              from             economic                   and           resource  

                                                                                                                                           

                              development activities in the region; . . . sustain current, and  

                                                                                                                                                          

                              develop  new,  approaches  for  responding  to  a  changing  

                                                                                                                                            

                              climate,  and  adapt  to  the  challenges  of  coastal  erosion,  

                                                                                                                                               

                             permafrost melt, and ocean acidification; . . . collaborate with  

                                                                                                                                                        

                              all        levels              of        government,                        tribes,              industry,                 and  

                                                                                                                                                     

                             nongovernmental organizations to achieve transparent and  

                                                                                                                                                         

                              inclusive Arctic decision-making, including efforts to . . .  

                                                                                                                                                             

                             value  and  strengthen  the  resilience  of  communities  and  

                                                                                                                                                        

                             respect and integrate the culture, language, and knowledge of  

                                                                                                                                                              

                             Arctic peoples[;] . . . recognize Arctic indigenous peoples'  

                                                                                                                                               

                              cultures   and   unique   relationship   to   the   environment,  

                                                                                                                                  

                              including traditional reliance on a subsistence way of life for  

                                                                                                                                                            

                              food security, which provides a spiritual connection to the  

                                                                                                                                                           



               35            AS    38.05.180(a)    (concerning    leasing    state    lands    for   oil   and    gas  



development).  



               36             Ch. 10,  2, SLA 2015.  

                                                                     



                                                                                           -13-                                                                                     7583
  


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

                                  land and the sea; . . . [and] safeguard the fish, wildlife, and                                                                                 

                                  environment of the Arctic for the benefit of residents of the                                                                                     

                                  state; . . . .         



The legislature's stated (but uncodified) intent underlying the Arctic policy included                                                                                                                 



recognition that althoughclimatechangepresentsrisks,continuingresourcedevelopment                                                                                                             



in an environmentally and socially responsible manner is essential to Alaska's economy                                                                                                                

and residents.                     37  



                                  The legislature's long-standing mineral policy is found in AS 44.99.110:38  

                                                                                                                                                                                              



                                                   The legislature, acting under art. VIII, sec. 1 of the  

                                                                                                                                                                                   

                                  Constitution of the State of Alaska, in an effort to further the  

                                                                                                                                                                                    

                                  economic  development  of  the  state,  to  maintain  a  sound  

                                                                                                                                                                           

                                  economy                      and            stable              employment,                           and            to        encourage  

                                                                                                                                                              

                                  responsible economic development within the state for the  

                                                                                                                                                                                   

                                  benefit of present and future generations through the proper  

                                                                                                                                                                           

                                  conservation  and  development  of  the  abundant  mineral  

                                                                                                                                                                      

                                  resources . . . , including metals, industrial minerals, and coal,  

                                                                                                                                                                                

                                  declares as the mineral policy of the state that  

                                                                                                                                              



                                                   (1)  mineral  exploration  and  development  be  

                                                                                                                                                                   

                                                   given  fair  and  equitable  consideration  with  

                                                                                                                                                             

                                                   other              resource   uses                            in        the   multiple   use  

                                                                                                                                                               

                                                   management of state land; . . . .  

                                                                                                                              

                                  Thelegislature'srelatively recent energy policy is found in AS44.99.115:39  

                                                                                                                                                                                               



                                                   The  State  of  Alaska  recognizes  that  the  state's  

                                                                                                                                                                         

                                  economic prosperity is dependent on . . . energy to supply the  

                                                                                                                                                                                    

                                  state's . . . needs.  The state also recognizes that worldwide  

                                                                                                                                                                

                                  supply and demand for fossil fuels and concerns about global  

                                                                                                                                                                            



                 37               Id.    1 ("[C]ontinuing development of the state's natural resources in an                                                                                                          



environmentally and socially responsible manner is essential to the development of the                                                                                                                                

state's economy and to the well-being of the residents of the state . . . .").                                                                                                  



                 38               Ch. 138,  1, SLA 1988.  

                                                                                   



                 39               Ch. 82,  2, SLA 2010.  

                                                                                



                                                                                                          -14-                                                                                                   7583
  


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

                                   climate change will affect the price of fossil fuels . . . . [I]t is                                                                                      

                                   the   policy   of   the   state   to  .  .   .  .  encourage   economic  

                                   development by . . . promoting the development of renewable                                                                         

                                    [energy sources] .                               .   .   .   [and] promoting                                  the development,   

                                   transport, and efficient use of nonrenewable and alternative                                                                      

                                   energy    resources,    including    natural    gas,    coal,    oil,    gas  

                                   hydrates, heavy oil, and nuclear energy for use by Alaskans                                                                           

                                   and for export . . . .                        



The legislature's stated (but uncodified) intent underlying the energy policy focused on                                                                                                                                      



energy efficiency, calling for a 15% increase in energy efficiency between 2010 and                                                                                                                                       



2020 and for 50% of electricity generation through renewable resources by 2025, while                                                                                                                                 



emphasizing   "remain[ing]   a   leader   in   petroleum   and   natural   gas   production   and  

becom[ing] a leader in renewable and alternative energy development."                                                                                                                        40  



                                   3.                Environmental protection and public trust policy  

                                                                                                                                                                               



                                   The legislature's long-standing environmental protection and public trust  

                                                                                                                                                                                                                         

policy is found in AS 46.03.010:41  

                                                           



                                                     (a) It is the policy of the state to conserve, improve,  

                                                                                                                                                                         

                                   and protect its natural resources and environment and control  

                                                                                                                                                                               

                                   water, land, and air pollution, in order to enhance the health,  

                                                                                                                                                                                

                                   safety, and welfare of the people of the state and their overall  

                                                                                                                                                                               

                                   economic and social well-being.  

                                                                                           



                                                     (b)  It is the policy of the state to . . . develop and  

                                                                                                                                                                                       

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

                                                                                                                                                                                        



                  40               Id.   1.   



                  41  

                                                                                                                                                                                                                            

                                   Ch. 120,  3, SLA 1971.   This policy is part of legislation creating the  

                                                                                                                                                                                                               

Alaska Department of Environmental Conservation and granting authority to regulate  

                                         

pollution.  Id.   1-3.  



                                                                                                             -15-                                                                                                      7583
  


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

                                         that   the   state  may   fulfill   its  responsibility   as   trustee   of   the  

                                         environment  for  the  present  and  future  generations.[42]  



                     C.	                 The  Judiciary's  Role  Under  Article  VIII  



                                         Article VIII  effectively limits the judiciary's  role in  implementing  Alaska's  



natural  resources  policies.   In  Sullivan  v.  REDOIL  we  quoted  article  VIII,  sections  1  and  



2,  and  then  stated  that  it  is  the  legislature's  "duty  to  determine  the  procedures  necessary  



for   ensuring   .   .   .   the   State's   resources   are   used   'for   the   maximum   benefit   of   its  

people.'  "43  

                                     We  clarified  that  we  do  not  "provide  instruction  on  how  the  State  should  

determine  what  action  would  be  for  the  maximum  benefit  of  the  Alaskan  people."44  

                                                                                                                                                                                                                                                              We  



 said  our  role  instead  is  ensuring  that  constitutional  principles  are  followed,  particularly  



the   mandate   that   "natural   resources   are   to   be   made   'available   for   maximum   use  



                     42                  Article VIII of the Alaska Constitution also gives rise to some public trust                                                                                                                                       



obligations.   See Brooks v. Wright                                                                          , 971 P.2d 1025, 1031 (Alaska 1999) ("Instead of                                                                                                     

recognizing the creation of a public trust in [individual article VIII] clauses per se, we                                                                                                                                                

have noted that 'the common use clause was intended to engraft in our constitution                                                                                                                                                  

certain trust principles . . . .' " (quoting                                                                              Owsichek v. State, Guide Licensing & Control   

Bd., 763 P.2d 488, 496 (Alaska 1988))).                                                                                      Alaska's constitutional public trust principles                                                               

have been discussed and applied in various contexts, including:                                                                                                                                           subsistence hunting   

regulations,   McDowell   v.   State,   785   P.2d  1,   16-19   (Alaska   1989)   (Rabinowitz,   J.,  

dissenting);   hunting   licensing,   Owsichek,   763   P.2d   at  494-97;   fishing   regulations,  

 Tongass Sport Fishing Ass'n v. State                                                                             , 866 P.2d 1314, 1317-18 (Alaska 1994); riparian                                                                               

land ownership,                                      State, Dep't of Nat. Res. v. Alaska Riverways, Inc.                                                                                                             , 232 P.3d 1203,                  

 1211-12 (Alaska 2010); and wildlife management,                                                                                                              Brooks, 971 P.2d at 1030-33.                                                                  We  

previously have contemplated the possibility that the State's constitutional public trust                                                                                                                                                                   

obligations may be implicated by harm to the atmosphere insofar as it is "inextricably                                                                                                                                           

linked" to "recognized public trust resources such as water, shorelines, wildlife, and                                                                                                                                                                       

fish."   Kanuk ex rel. Kanuk v. State, Dep't of Nat. Res.                                                                                                                  , 335 P.3d 1088, 1103 (Alaska                                         

2014).  



                     43                  311 P.3d. 625, 634-35 (Alaska 2013) (quoting Alaska Const. art. VIII,  2).  

                                                                                                                                                                                                                                                                



                     44                  Id. at 635 (emphasis in original).  

                                                                                                                 



                                                                                                                               -16-	                                                                                                                      7583
  


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

                                                                   45  

consistent with the public interest.' "                                 When an executive agency decision about natural                               



resources is challenged under article VIII, our role thus is limited to ensuring that the                                                            



agency   has   "taken   a   'hard   look'   at   all   factors   material   and   relevant  to  the   public  

interest."46  



                         As we explained in Sullivan:  

                                                               



                         The "hard look" doctrine for reviewing DNR's decisions first  

                                                                                                                                   

                         appeared in Hammond v. North Slope Borough, when we  

                                                                                                                                    

                         referenced a United States Supreme Court statement that the  

                                                                                                                                    

                         "court cannot substitute its judgment as to environmental  

                                                                                                              

                         consequences, but should only ensure that the agency has  

                                                                                                                                   

                         taken  a 'hard  look.'  "                      A year  later,  in  Southeast Alaska  

                                                                                                                             

                         Conservation Council, Inc. v. State, we stated that our role is  

                                                                                                                                       

                         to  



                                                                                               

                                      ensure  that  the  agency  "has  given  reasoned  

                                                                                                                               

                                      discretion to all the material facts and issues."  

                                                                                                                      

                                      The        court         exercises             this       aspect          of       its  

                                                                                                                           

                                      supervisory role with particular vigilance if it  

                                                                                                      

                                      "becomesaware,especially fromacombination  

                                                                                                                   

                                      of danger signals, that the agency has not really  

                                                                                                                       

                                      taken a 'hard look' at the salient problems and  

                                                                                                              

                                      has not genuinely engaged in reasoned decision  

                                                          

                                      making."  



                                                                                                                               

                         Since then, we have used the "hard look" standard when  

                                                                                                               [47]  

                                                                                                      

                         reviewing agency decisions on resource uses. 



             45          Id.  



             46          Id.  (quoting  Kachemak Bay Conservation Soc'y v. State, Dep't of Nat. Res.                                                             ,  



6 P.3d 270, 294 (Alaska 2000)).                 



             47          Id.  at 635 n.46 (emphasis in original) (citations omitted) (first quoting  

                                                                                                                                                    

Hammond v. North Slope Borough, 645 P.2d 750, 759 (Alaska 1982); and then quoting  

                                                                                                                                                     

Se. Alaska Conservation Council v. State, 665 P.2d 544, 549 (Alaska 1983)).  

                                                                                                                                    



                                                                             -17-                                                                        7583
  


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

 This is in stark contrast to how we review claims about individual constitutional rights                                                                                                                                                                                                                                                               

violations.48  



                             48                          See, e.g.                           ,  Larson v. Dep't of Corr., Bd. of Parole                                                                                                                                  , 476 P.3d 293, 301 n.55                                                             



 (Alaska 2020) (" 'The right to privacy is not absolute' but is balanced against conflicting                                                                                                                                                                                                                                       

rights and interests." (quoting                                                                                                   Jones v. Jennings                                                              , 788 P.2d 732, 738 (Alaska 1990)));                                                                                        

Planned Parenthood of the Great Nw. v. State                                                                                                                                                                 , 375 P.3d 1122, 1153 (Alaska 2016)                                                                                                       

 ("Where a compelling state interest is shown, the right [to privacy] may be held to be                                                                                                                                                                                                                                                                               

 subordinate to express constitutional powers such as the authorization of the legislature                                                                                                                                                                                                                                           

to promote and protect public health and provide for the general welfare." (quoting                                                                                                                                                                                                                                                                        Gray  

 v.  State, 525 P.2d 524, 528 (Alaska 1974))).                                                                                                           



                                                         For substantive due process violation claims, we have employed three                                                                                                                                                                                                                             

review levels - strict scrutiny, intermediate scrutiny, and rational basis review:                                                                                                                                                                                                                                                                      



                                                         Under  strict scrutiny, when a law substantially burdens a                                                                                                                                                                                               

                                                          fundamental right, the Statemustarticulate a                                                                                                                                         compelling  state  

                                                          interest                                that                     justifies                                 infringing                                          the                   right                        and                     must  

                                                          demonstrate that no less restrictive means of advancing the                                                                                                                                      

                                                          state interest exists.                                                              Under intermediate scrutiny, when state                                                                                                                

                                                          action interferes with an individual's liberty interest that is                                                                                                                                                                                       

                                                         not   characterized   as   fundamental,   the   State   must   show   a  

                                                          legitimate    state    interest    and    a    "close    and   substantial  

                                                         relationship" between that interest and the chosen means of   

                                                          achieving it.                                         Under rational basis review, the party claiming                                                                                                                    

                                                          asubstantive due process violation has the                                                                                                                                      burden ofshowing                           

                                                         that there is no rational basis for the challenged legislation.                                                                                                                                                                                                   

                                                          "This burden is a heavy one, for if any conceivable legitimate                                                                                                                                                       

                                                         public policy for the enactment is apparent on its face or is                                                                                                                                                                                          

                                                          offered by those defending the enactment, the opponents of                                                                                                                                                                                           

                                                         the   measure   must   disprove   the   factual   basis   for   such   a  

                                                        justification."  



                                                                                                                                                                                                                                                                                                                                            

Doe v. Dep't of Pub. Safety, 444 P.3d 116, 125-26 (Alaska 2019) (emphasis in original)  

                                                                                                                                                                                                                                                                                                                                              

 (first  quoting  Sampson  v.  State,  31  P.3d  88,  91  (Alaska  2001);  and  then  quoting  

                                                                                                                                                                                                                                                                                                                                                              

 Concerned Citizens of S. Kenai Peninsula v. Kenai Peninsula Borough, 527 P.2d 447,  

                                                      

 452 (Alaska 1974)).  

                                                                                                                                                                                                                                                                                                                         (continued...)  



                                                                                                                                                                                 -18-                                                                                                                                                                        7583
  


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

III.        FACTS AND PROCEEDINGS IN THIS CASE                                            

                        In August 2017 over a dozen young Alaskans (plaintiffs                                            49                       

                                                                                                                             ) petitioned the  



                                                                                                                                         

Alaska Department of Environmental Conservation to adopt an agency rule ensuring  

                          50                                                       51 (collectively carbon emissions) have  

carbon dioxide                and greenhouse gas emissions 



            48          (...continued)  



                                                                                                                                          

                       When evaluating equal protection claims, we apply a "flexible 'sliding  

                                                             

scale' test" involving a three-step analysis:  



                                                                                                          

                        First,  we  determine  what  weight  should  be  afforded  the  

                                                                                                                                  

                        constitutional interest impaired by the challenged enactment.  

                                                                                                                             

                        The nature of the interest is the most important variable in  

                                                                                                                  

                        fixing the appropriate level of review.  Second, we examine  

                                                                                                        

                       the purposes served by a challenged statute.  Depending on  

                                             

                       the level of review determined, the state may be required to  

                                                                                                                           

                        show only that its objectives were legitimate, at the low end  

                                                                                                                           

                        of the continuum, or, at the high end of the scale, that the  

                                                                                                                                  

                        legislation  was  motivated  by  a  compelling  state  interest.  

                                                                                                                

                        Third, an evaluation of the state's interest in the particular  

                                                                                                     

                       means employed to further its goals mut be undertaken.  



                                                                                                                                                     

Jones v. State, Dep't of Revenue, 441 P.3d 966, 978 (Alaska 2019) (quoting Ross v.  

                                                                                                  

State, Dep't of Revenue, 292 P.3d 906, 909-10 (Alaska 2012)).  



            49          Plaintiffs - some of whom are expressly stated to be Alaska Natives -  

                                                                                                                                                    

and their ages when suit was filed are:  Summer Sagoonick of Unalakleet, 17; Esau  

                                                                                                                                               

Sinnok of Shishmaref, 20; Linnea L. of Gustavus, 14; Tasha Elizarde of Juneau, 19;  

                                                                                                                                                  

Cade Terada of Dutch Harbor, 19; Kaytlyn Kelly of Palmer, 18; Brian Conwell of Dutch  

                                                                                                                                              

Harbor,  19;  Jode  Sparks  of  Sterling,  18;  Margaret  "Seb"  Kurland  of  Juneau,  18;  

                                                                                                                                                  

Lexine D. of Fort Yukon, 9; Elizabeth Bessenyey of Anchorage, 18; Vanessa Duhrsen  

                                                                                                                                         

of Anchorage, 18; Ananda Rose Ahtahkee L. of Anchorage, 8; Griffin Plush of Seward,  

                                                                                                                                          

21; and Cecily and Lila S. of Homer, 8 and 6, respectively.  

                                                                                                         



            50         See Gökçe Günel, What Is Carbon Dioxide? When Is Carbon Dioxide?, 39  

                                                                                                                                                    

POL.&L         EGAL ANTHROPOLOGY REV. 33 (2016) ("The                                       Oxford English Dictionary                      defines  

carbon   dioxide   as   'a   colorless,   odorless   gas   produced   by   the   burning   of   organic  

compounds and fossil fuels, by the processes of respiration and decomposition, and by                                                               

                                                                                                                                (continued...)  



                                                                        -19-                                                                   7583
  


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

                                                                                                                                                                                                                 52  

a "reduction trajectory that is based on best climate science."                                                                                                                                                         The proposed rule called                                          



for the Department to "regulate stationary and mobile sources of [carbon] emissions and                                                                                                                                                                                                           



the extraction of fossil fuels" in Alaska to reduce carbon emissions to "at least 85%                                                                                                                                                                                                        



below 1990 levels by 2050" - an estimated global reduction necessary to slow climate                                                                                                                                                                                                 



changeand                               lower global                                atmospheric carbon emission levels to a                                                                                               specified level by 2100.                                                                



The proposed rule also required the Department to publish an annual accounting of the                                                                                                                                                                                                               



 State's progress in addressing carbon emissions and to "adopt a Climate Action Plan to                                                                                                                                                                                                                 



meet the reduction requirements specified."                                                                        



                                               The Department responded in September, denying the petition but assuring                                                                                                                                                           



plaintiffs that addressing climate change was a State priority. The Department explained                                                                                                                                                                                     



that the proposed rule - by "establish[ing] broad policy goals" rather than directly                                                                                                                                                                                               



affecting the public or regulating the agency's interactions with the public - did not                                                                                                                                                                                                             

                                                                                                                                                              53  likely exceeded the Department's rule- 

meet the statutory definition of "regulation";                                                                                                                                                                                                                                                



                        50                     (...continued)  



                                                                                                                                                                                                                                                                                             

volcanic activity, and absorbed by plants during photosynthesis.' . . . . In smaller type,  

                                                                                                                                                                                                                                                                              

the OED concludes[:] 'The increasing quantity of atmospheric carbon dioxide produced  

                                                                                                                                                                                                                                                                                                 

by the burning of fossil fuels is widely believed to augment the greenhouse effect and  

                                                                                                                                                                                            XFORD  ENGLISH  DICTIONARY  (3d  

lead to global warming.' " (quoting Carbon Dioxide, O 

ed. 2008))).   



                        51                     Plaintiffs described greenhouse gas emissions in their rule-making petition  

                                                                                                                                                                                                                                                                                     

as "any gas that has contributed to anthropogenic global warming."  See also id.  

                                                                                                                                                                                                                                                                                



                        52                     See AS 44.62.220 ("Unless the right to petition for adoption of a regulation  

                                                                                                                                                                                                                                                                        

is  restricted  by  statute  to  a  designated  group  or  the  procedure  for  the  petition  is  

                                                                                                                                                                                                                                                                                                       

prescribed by statute, an interested person may petition an agency for the adoption or  

                                                                                                                                                                                                                                                                                                       

repeal of a regulation . . . .").  

                                                                                   



                        53                     See AS 44.62.640(a)(3) (defining "regulation" as "every rule, regulation,  

                                                                                                                                                                                                                                                                         

order, or standard of general application or the amendment, supplement, or revision of  

                                                                                                                                                                                                                                                                                                       

a rule, regulation, order, or standard adopted by a state agency to implement, interpret,  

                                                                                                                                                                                                                                                                               

                                                                                                                                                                                                                                                                (continued...)  



                                                                                                                                                 -20-                                                                                                                                         7583
  


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

                                                                                           54  

making authority granted by statute;                                                            and was "inconsistent with practical and fiscal                                                        



constraints" on the Department and the State.                                                                      The Department advised plaintiffs that                                                  



resource   development   and   environmental   policy   questions   are   "best   addressed   in  



partnership with the Legislature" and encouraged them "to continue to engage" with the                                                                                                                       



executive and legislative branches "in seeking creative solutions to addressing climate                                                                                                            



change in Alaska."                                



                                 A month later plaintiffs filed a superior court lawsuit against the State and                                                                                              



various agencies and officers. Plaintiffs challenged the Department's denial of the rule-                                                                                                                



making   petition   as   a   violation   of   their   constitutional   rights   and   made   additional  



constitutionally based claims for declaratory and injunctive relief regarding what they                                                                                                                   



described as the State's "Climate and Energy Policy."                                                                                The State later moved to dismiss                              

                            55   In April 2018 the superior court heard arguments on the dismissal motion.  

the lawsuit.                                                                                                                                                                                      



                                 In August plaintiffs amended their complaint, adding specificity to their  

                                                                                                                                                                                                         



allegations about Alaska climate change and expressly referring to the legislature's  

                                                                                                                                                                                      



                53               (...continued)  



                                                                                                                                                                                                                  

or make specific the law enforced or administered by it").  " '[R]egulation' includes . . .  

                                                                                                                                                                                                           

 'guides to enforcement,' 'interpretative bulletins,' 'interpretations,' and the like, that  

                                                                                                                                                                                                             

have the effect of rules, orders, regulations, or standards of general application," id., but  

                                                                                                                                                                                                                

"not every agency action or decision constitutes a regulation," Chevron, U.S.A., Inc. v.  

                                                                                                                                                                                                                 

State, Dep't of Revenue, 387 P.3d 25, 35-36 (Alaska 2016).   An agency action is a  

                                                                                                                                                                                                               

regulation if it meets two criteria:  First, the action must "implement[], interpret[], or  

                                                                                                                                                                                                         

make[] specific the law enforced or administered by the agency"; second, the action must  

                                                                                                                                                                                                              

"affect[] the public" or be "used by the agency in dealing with the public."  Id.  at 36  

                                                                                                                                                                                                   

(quoting State, Dep't of Nat. Res. v. Nondalton Tribal Council, 268 P.3d 293, 300-01  

                     

(Alaska 2012)).  



                54               Cf.   AS   46.03.020(10)(A)   (authorizing   Department   to   promulgate  

                                                                                                                                                                                      

regulations regarding "control, prevention, and abatement of air . . . pollution").  

                                                                                                                                                                     



                55               See Alaska R. Civ. P. 12(b)(6) (allowing dismissal for failure to state claim  

                                                                                                                                                                                                        

upon which relief can be granted).  

                                                               



                                                                                                     -21-                                                                                               7583
  


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

                                                        56  

energy policy             in AS 44.99.115.                   The amended complaint detailed each plaintiff's                     



                                                                                                                    [57]  

alleged harms and sought to "enforce sections 1, 7, and 21 of Article I                                                                

                                                                                                                         . . . and Article  



       [58]  

                                                              

VIII         of the Alaska Constitution."  



                                                                                             

                       The first plaintiff named in the amended complaint, for example, alleged  



                                                                                                                                             

that climate change is having a devastating effect on his home, subsistence lifestyle, and  



                                                                                                                                            

cultural traditions.  This is manifested, he alleged, in erosion of inhabited seacoast due  



                                                                                                                                            

to loss of sea ice that "has historically been a buffer against storms, storm surges, and  



                                                                                                                            

flooding"; "accelerating thaw of the permafrost underlying [his home] community,"  



                                                                                

causing both erosion and food-cellar flooding; damage to traditional hunting practices  



           56         See  supra    II.B.  



           57         Providing,  in  relevant  part:  



                          1.  Inherent  Rights.   This   constitution  is  dedicated  to  the  

                      principles  that  all  persons  have  a  natural  right  to  life,  liberty,  

                      the  pursuit  of  happiness,  and  the  enjoyment  of  the  rewards  of  

                      their  own industry; that all  persons are equal and entitled to  

                      equal  rights,  opportunities,  and  protection  under  the  law;  and  

                      that  all  persons  have  corresponding  obligations  to  the  people  

                      and  to  the  State.  



                                  . . . .  



                          7.     Due   Process.     No   person   shall   be   deprived   of   life,  

                      liberty,  or  property,  without  due  process  of  law.  The  right  of  

                      all   persons   to   fair   and  just  treatment   in   the   course   of  

                      legislative and executive investigations  shall not  be infringed.  



                                  . . . .  



                          21.     Construction.     The   enumeration   of   rights   in   this  

                      constitution  shall  not  impair  or  deny others  retained  by  the  

                      people.  



           58         See supra  II.A.  

                                            



                                                                     -22-                                                                7583
  


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

                                                                                                                           

and loss of game due to thinning sea ice; inadequate snow cover for necessary winter  



                                                                                                                         

travel; harm to prey animals such as walrus, seal, and caribou, both directly and through  



                                                                                                                                

damage to their food supply; increased wildfires damaging the air quality necessary for  



                                                                                                                          

outdoor recreation; and feelings of "anxiety, stress and loss."  Other plaintiffs alleged  



                                                                                                                               

specific harm to their recreational opportunities, diet, physical and mental health, and  



                              

traditional cultural activities.  



                                                                                                                                  

                    Plaintiffs also made specific factual allegations about State actors' roles in  



                                                                                                                                

"causing, contributing to,and exacerbating climate change," primarily by permitting and  



                                                                                                                                  

promoting fossil fuel extraction and other activities contributing to dangerous levels of  



                                                                                                                             

atmospheric carbon emissions.   Plaintiffs set out factual allegations underlying their  



                                                                                                                                  

assertions that the State has long been aware of climate change's harmful effects and of  



                                                                                                                           

the role the State's policies play in exacerbating the problem. They also detailed carbon  



                                                                                                                          

emissions produced in Alaska over several relevant time spans and identified the sources  



                               

of these emissions.  



                                                                                                               

                    Plaintiffs described"overwhelmingscientificconsensusthathuman-caused  



                                                                                                         

climate change is occurring"; sources of human-caused increase in carbon emissions;  



                                                                                                                      

impact on sea levels, ocean acidification, human disease, and mental health disorders;  



                                                                                                                         

and extreme weather events such as floods and hurricanes. Plaintiffs focused on climate- 



                                                                                                                               

change impacts in Alaska, detailing increased temperatures, effects on Arctic sea ice and  



                                                                                                                    

effects on marine mammals and coastal communities, glacial melt and its "profound  



                                                                                                                             

impacts on freshwater and marine aquatic resources," and permafrost thawing.  They  



                                                                                                                         

described wildfires, sprucebeetle infestations, ocean acidification, and threats to salmon,  



                                                                                                                             

other fish species, and a variety of land-based plants and mammals.  They detailed these  



                                                                                                                           

changes'  effects  on  Alaskans,  amplifying  individual  plaintiffs'  allegations  about  



                                                                                                                       

damagedcommunities, subsistencehunting and fishing, traditionalandculturalactivities,  



                                                                                                                          

and health. Plaintiffs also alleged "[e]conomic and financial losses from climate change  



                                                               -23-                                                         7583
  


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

                                                                                                                 

[related to] healthcare, wildlife and fisheries management, disaster relief, infrastructure  



                                                                                          

construction and repair, and energy development, among others."  



                                                                                                                                   

                     Plaintiffs  sought  a  declaratory  judgment  stating  that:                           (1)  they  have  a  



                                                                                                                                

"fundamental and inalienable constitutional right[] to . . . a stable climate system that  



                                                                                                                         

sustains human life and liberty"; (2) the State has a duty under the public trust doctrine  



                                                                                                                                   

to protect Alaska's natural resources; (3) the State has exacerbated climate change in  



                                                                                                                                   

violation of plaintiffs' individual constitutional rights; (4) the State has put plaintiffs in  



                                                                                                           

danger by failing to reduce Alaska's carbon emissions; (5) the State has discriminated  



                                                                                                                           

against plaintiffs as members of a protected age-based class who will suffer from climate  



                                                                                                                                

change effects for a longer period of time than will older people; (6) the State has  



                                                                                                                            

violated its duty to protect Alaska's natural resources; and (7) the Department's denial  



                                                                                                                        

of the rule-making petition violated plaintiffs' individual constitutional rights. Plaintiffs  



                                                                                                                           

also requested injunctive relief requiring the State to:  (1) stop implementing its energy  



                                                                                                                                  

policy in violation of their rights; (2) "prepare a complete and accurate accounting of  



                                                                                                                     

Alaska's [carbon] emissions," including "in-boundary and extraction-based emissions"  



                                                                                                                               

and  "emissions  attributable  to  fossil  fuels  extracted  in  Alaska  and  transported  and  



                                                                       

combusted out of state"; and (3) develop and submit to the court "an enforceable state  



                                                                                                                                   

climate recovery plan . . . consistent with global emissions reductions rates necessary to  



                                 

stabilize the climate system."  



                                                                                                                                

                    After  plaintiffs  filed  their  amended  complaint,  the  parties  notified  the  



                                                                                                                                 

superior court that they had agreed no further briefing or arguments were necessary for  



                                                                                                                          

the court to rule on the State's pending dismissal motion.  In October the court granted  



                                                                                                                      

the State's motion, dismissing plaintiffs' injunctive relief claims because they implicated  



                                                                                                      

non-justiciable political questions, dismissing plaintiffs' requests for declaratory relief  



                                                                                                                              

on prudential grounds, and concluding that the Department's denial of plaintiffs' rule- 



                                                                                                        

making petition complied with statutory requirements and was not arbitrary.  



                                                               -24-                                                          7583
  


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

                   Plaintiffs  appeal.  



IV.	     DISCUSSION  



         A.	       Dismissal  Of  Plaintiffs'  Declaratory  Judgment  And  Injunctive  Relief  

                   Claims  



                   1.	      Standard  of  review  



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



and  accepting  as  true  all  factual  allegations,"  and  we  generally  "do  not  consider  materials  



                                                             59                                                         60  

outside  the  complaint a   nd  its  attachments."               "[M]otions  to  dismiss  are  disfavored," 



and  it  must  be  "beyond  doubt  that  the  plaintiff  can  prove  no  set  of  facts  that  would  entitle  

[the  plaintiff]  to  relief"  before  dismissal  will  be  granted.61  

                                                                                  "Even  if  the  relief  demanded  



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



                                                              62  

available   on  the  basis   of  the   alleged   facts."           "[W]e  review   de  novo  the   question   of  

whether  a  case  should  be  dismissed  on  prudential  grounds."63  



         59        Pedersen  v.  Blythe,  292  P.3d  182,  184  (Alaska  2012).   Plaintiffs'  102-page  



amended  complaint  is  replete  with  factual  allegations,  ranging  from  the  very  local  to  the  

global  and  stating  very  specific  harms  claimed  by  individual  plaintiffs.   For  purposes  of  

the  discussion  that  follows,  we  must  presume  as  true  and  provable  at  trial  that  the  State  

knows   its   actions have   exacerbated   and   will   continue   to   exacerbate   climate   change,  

causing   serious   harms   to   the   individual   plaintiffs   and   contributing   to   statewide,  

nationwide, and global damage that is accelerating toward climate catastrophe.   Plaintiffs  

assert  that  the  superior  court  erred  by  failing  to  consider  their  factual  allegations  in  this  

light,  but  because  we  independently  review  plaintiffs'  complaint  in  our  consideration  of  

its  dismissal,  we  do  not  address  that  assertion  of  error.  



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

                                                                                        



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

                                                                                                                  



         62        Adkins , 204 P.3d at 1033.  

                                                



         63        Kanuk  ex rel. Kanuk  v. State, Dep't  of Nat. Res., 335 P.3d  1088, 1092  

                                                                                                                   

                                                                                                       (continued...)  



                                                          -25-	                                                    7583
  


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

                       2.        Kanuk ex rel. Kanuk v. State, Department of Natural Resources                                  



                      Plaintiffs' factual           allegations and           legalclaimsaresimilar to                  thoseaddressed   



                                                                                                                                               64  

in our 2014         Kanuk ex rel. Kanuk v. State, Department of Natural Resources                                               decision.           



In that case, like this one, the plaintiffs sought a court mandate for substantive State  

                                                                                                                                          



action in response to potentially catastrophic climate change.  Because we affirmed the  

                                                                                                                                             



superior court's denial of any relief in Kanuk, many arguments in this appeal focus on  

                                                                  



factual and procedural comparisons of the two cases.  

                                                                                



                       The Kanuk plaintiffs were a diverse group of young Alaskans who claimed  

                                                                                                                                      



the State had violated duties under the Alaska Constitution and the public trust doctrine  

                                                                                                                                     

by failing to take steps to protect the atmosphere and curb carbon emissions.65                                                            The  

                                                                                                                                           



superior court dismissed their complaint, holding that their requests for declaratory and  

                                                                                                                                            



                                                                                                                                               66  

injunctive relief were non-justiciable political questions; the Kanuk plaintiffs appealed.                                                          

                                                                                                                                



We affirmed the dismissal, but for slightly different reasons.  

                                                                                         

                                                                                                            67  and that their claims  

                      We first held that the Kanuk plaintiffs had standing                                                              

                                                                                               

                                                                    68  We held that three claims - asking that the  

were not barred by sovereign immunity.                                                                                                       

                                                   



           63          (...continued)  



(Alaska  2014).  



           64         Id.  at   1090-91.  



           65         Id.  



           66         Id.  at   1091.  



           67         Id.  at   1092-95  (concluding  plaintiffs  had  interest-injury  standing  because  



"the complaint shows direct  injury  to  a  range  of  recognizable  interests[, e]specially  in  

light  of  our  broad  interpretation  of  standing  and  our  policy  of  promoting  citizen  access  

to  the  courts").  



           68         Id. at 1095-96 (rejecting sovereign immunity defense because "[t]he duty  

                                                                                                                                           

                                                                                                                           (continued...)  



                                                                     -26-                                                                7583
  


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

court order the State to use the best available science, lower carbon emissions, and                                                                              



prepare a carbon emission accounting - were properly dismissed as non-justiciable                                                           



because they involved policy questions within other government branches' particular                                                                    

                         69  We disagreed with the superior court's decision that the remaining claims  

competence.                                                                                                                                                  



also presented non-justiciable political questions, holding that declaratory judgment  

                                                                                                                                                       



claims on the nature of the public trust doctrine were justiciable because whether the  

                                                                                                                                                                    



State has breached a legal duty is a question we can answer, assuming we first can  

                                                                                                                                                                   

identify the duty at issue.70  But despite the claims' justiciability, we held dismissal on  

                                                                                                                                                                     



prudential grounds was proper because the declaratory relief sought would not "clarify  

                                                                                                                                                           



and settle [the] legal relations" between the parties and thus ultimately would "fail to  

                                                                                                                                                                      

serve the principal prudential goals of declaratory relief."71  

                                                                                                                     



                          3.           Justiciability and prudential considerations in this matter  

                                                                                                                                                  



                          We apply Kanuk 's analytical framework to determine whether plaintiffs'  

                                               



claims are justiciable.  This requires answering two questions:  

                                                                                                       



                          (1) [W]hether deciding the claim would require us to answer  

                                                                                                                                  

                          questions  that  are  better  directed  to  the  legislative  or  

                                                                                                                                          

                          executive branches of government (the "political question"  

                                                                                                                             

                          doctrine), and (2) whether there are other reasons - such as  

                                                                                                                                            

                          ripeness,  mootness,  or  standing  -  that  persuade  us  that,  

                                                                                                                                      



             68           (...continued)  



the  State  is  alleged  to  have  breached  .  .  .  is  a  fiduciary  duty  based  on  article  VIII  of  the  

Constitution  and  the  public  trust  doctrine,  not  tort  law").  



             69           Id.  at   1097-99.  



             70           Id.  at   1100.  



             71           Id.  at  1101-02  (quoting  Lowell  v.  Hayes,  117  P.3d  745,  755  (Alaska  2005)).  



                                                                                 -27-                                                                           7583
  


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

                       though   the   case   is   one   we   are   institutionally   capable   of  

                       deciding, prudence counsels that we not do so.                                   [72]  



                       As  we  explain  below,  plaintiffs'  injunctive  relief  claims  present  non- 

                                                                                                                                              



justiciable political questions.  And although plaintiffs' declaratory relief claims do not  

                                                                                                                                                 



necessarily  present  non-justiciable  political  questions,  the  superior  court  properly  

                                                                                                                                      



dismissed them on prudential grounds after correctly determining that it could not grant  

                                                                                                                                              



injunctive relief.  

                               



                                   a.	        Plaintiffs' injunctive relief claims and our non-justiciable  

                                                                                                                           

                                              political questions analysis  

                                                                                  



                       We  previously  have  explained  that  the  separation  of  powers  doctrine  

                                                                                                                                       

prohibits  Alaska  courts  from  resolving  purely  political  questions.73  

                                                                                                                                       

                                                                                                                               But  "merely  



                                                                                                                                         

characterizing a case as political in nature will [not] render it immune from judicial  

                 74   There are no "exact boundaries between the political and the justiciable,"  

 scrutiny."                                                                                                                



but we identify political questions "by applying the test announced by the United States  

                                                                                                                                            

 Supreme Court in Baker v. Carr."75                               Baker  lists six factors, at least one of which is  

                                                                                                                                                   



"[p]rominent  on  the  surface"  of  any  case  involving  a  political  question:  



                        [1] a textually demonstrable constitutional commitment of the  

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

                       judicially          discoverable             and       manageable              standards           for  

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



            72	        Id.  at 1096 (footnote omitted).       



            73  

                                                                                                                                         

                       Id. ; seealsoAbood v. Gorsuch, 703P.2d 1158, 1160 (Alaska1985) ("There  

                                                                                                                                   

are  certain  questions  involving  coordinate  branches  of  the  government,  sometimes  

unhelpfully called political questions, that the judiciary will decline to adjudicate.");                                      

                                                                                                                                              

Malone v. Meekins, 650 P.2d 351, 356 (Alaska 1982) (citing Baker v. Carr, 369 U.S.  

                                 

 186, 210 (1962)).  



            74         Malone, 650 P.2d at 356.  

                                                            



            75         Kanuk, 335 P.3d at 1096 (citing 369 U.S. at 217).  

                                                                                                     



                                                                        -28-	                                                                7583
  


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

                             initial policy determination of a kind clearly for nonjudicial                                     

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

                             independent resolution without expressing lack of the respect                                                        

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

                             need   for   unquestioning   adherence   to   a   political   decision  

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

                             multifarious pronouncements by various departments on one                                                                    

                             question.[76]  



"Unless one of these formulations is inextricable from the case . . . there should be no  

                                                                                                                                                                                         

dismissal for non-justiciability on the ground of a political question's presence."77  

                                                                                                                                                          



                             Plaintiffs sought an injunction requiring theStateto: (1) stop implementing  

                                                                                                                                                                



its statutory energy policy in violation of their asserted constitutional rights; (2) "prepare  

                                                                                                                                                                            



a complete and accurate accounting of Alaska's [carbon] emissions"; and (3) work with  

                                                                                                                                                                                     



the Department to develop and submit to the superior court "an enforceable [S]tate  

                                                                                                                                                                               



climate recovery plan . . . consistent with global emissions reductions rates necessary to  

                                                                                                                                                                                          



stabilize the climate system."  

                                                                  



                             These closely resemble the requests in Kanuk. The Kanuk plaintiffs sought  

                                                                                                                                                                                



declaratory and injunctive relief, requesting that the court:  (1) "declare that the State[]"  

                                                                                                                                                                             



has a public trust "obligation to protect the atmosphere" by implementing the "best  

                                                                                                                                                                                  



available science"; (2) "order the State 'to prepare a full and accurate accounting of  

                                                                                                                                                               



Alaska's  current  carbon  dioxide  emissions'  ";  and  (3)  "order  the  State  to  reduce  

                                                                                                                                                                              

emissions 'by at least 6% [annually]' " until 2050.78  We held that the injunctive relief  

                                                                                    



claims  presented  non-justiciable  political  questions  "under  several  of  the  Baker  

                                                                                                                                                                               



               76            369 U.S. at 217.           



               77            Id.   



               78            Kanuk, 335 P.3d at 1097.                    



                                                                                           -29-                                                                                    7583
  


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

               79  

factors."          We said the claims most obviously implicated the third factor by requiring                                        

the court to make an "initial policy determination."                                    80          

                                                                                            We explained that "[t]he limited  



                                                                                                                               

institutional role of the judiciary supports a conclusion that the science- and policy-based  



                                                                                                                                               

inquiry [at issue in Kanuk  was] better reserved for executive-branch agencies or the  

legislature."81  



                       The superior court in this case concluded that plaintiffs' injunctive relief  

                                                                                                                                           



claims  were  "materially  indistinguishable"  from  those  in  Kanuk  and  denied  relief.  

                                                                                                                                                      



Plaintiffs contend the court made two errors.  They first argue that the court (and our  

                                                                                                                                              



Kanuk decision) should not have focused on the requested relief to determine whether  

                                                                                    



the "claims [themselves] present a political question." (Emphasis in original.) And they  

                                                                                                                                             



argue that, unlike the Kanuk plaintiffs, they point to an initial State legislative policy  

                                                                                                                                         



determination and affirmativeStateactions allegedly violating their constitutional rights.  

                                                                                                                                                      



Plaintiffs contend that these differences render their claims justiciable. We consider and  

                                                                                                                                              



reject these arguments in turn.  

                                             



                                              i.	        The superior court did not err by considering the  

                                                                                                                                               

                                                         injunctive relief requested by the plaintiffs.  

                                                                                                                                         



                       Plaintiffs argue that the superior court "obfuscate[d] the proper [political  

                                                                 



question] inquiry" by focusing on the requested relief instead of the claims presented.  

                                                                                                                                                      

                                                                                 82  and a review of our case law reveals  

But we took the very same approach in Kanuk,  

                                                                                                                                        



            79         Id.  at 1097-99.   



            80  

                                  

                       Id. at 1097.  



            81  

                                  

                       Id. at 1099.  



            82  

                                        

                       See id. at 1097-98.  



                                                                      -30-	                                                                7583
  


----------------------- Page 31-----------------------

                                                                                                                                                                                                            83  

that the remedy is a relevant consideration in the political question analysis.                                                                                                                                   Although  



plaintiffs   call   this   approach   "an   anomaly,"   several   federal   circuit   courts   of   appeal  



decisions demonstrate that relief is routinely considered during the political question                                                                                                                              

                        84        Categorizing past State actions as a single energy policy "implemented  

analysis.                                                                                                                                                                                            



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



28 P.3d 904, 913-14 (Alaska 2001) (rejecting argument that political question doctrine                                                                                                                                 

barredjudicialconsideration                                                  becausestriking                              regulation, which                               would requirelegislature                

to alter appropriations, is precisely type of remedy judiciary is competent to give);                                                                                                                                      Abood  

v. League of Women Voters, 743 P.2d 333, 336 (Alaska 1987) (holding claim alleging   

violation of rules of legislative procedure was non-justiciable because Constitution                                                                                                                      

permits legislature to make its own procedural rules and noting "to hold that these claims                                                                                                                                  

are justiciable places the judiciary in direct conflict with the legislature's constitutionally                                                                                                    

authorized rulemaking prerogative");                                                                    Malone v. Meekins                                     , 650 P.2d 351, 356 (Alaska                  

 1982) (concluding that declaring legislative house speaker election invalid would be                                                                                                                                                 

"improper"even ifprevious speaker's removal                                                                                   wasunconstitutionalandillegal                                                        as argued  

on appeal).                      



                   84                Schroder v. Bush, 263 F.3d 1169, 1174-76 (10th Cir. 2001) ("[I]t is clear  

                                                                                                                                                                                                                                

to us that Appellants' request that courts maintain market conditions, oversee trade  

                                                                                                                                                                                                                               

agreements,  and control currency  . .  .  would  require courts to  make  'initial policy  

                                                                                                                                                                                                                           

determinations'  in  an  area  devoid  of  'judicially  discoverable  and  manageable  

                                                                                                                                                                                                          

standards' . . . ."); Brown v. Hansen, 973 F.2d 1118, 1121 (3d Cir. 1992) ("[The political  

                                                                                                                                                                                                                       

question doctrine] precludes courts fromgranting relief that would violate the separation  

                                                                                                                                                                                                                  

of powers mandated by the United States Constitution."); Koohi v. United States, 976  

                                                                                                                                                                                                                                   

F.2d 1328, 1332 (9th Cir. 1992) (noting injunctive relief claims "may require the courts  

                                                                                                                                                                                                                            

to engage in the type of operational decision-making beyond their competence . . . [and]  

                                                                                                                                                                                                                            

are far more likely to implicate political questions"); Gordon v. Texas, 153 F.3d 190,  

                                                                                                                                                                                                                                 

 193-95 (5th Cir. 1998) (analyzing claims' justiciability based on relief sought); see also  

                                                                                                                                                                                                                                  

Republic of Marshall Islands v. United States, 79 F. Supp. 3d 1068, 1074 (N.D. Cal.  

                                                                                                                                                                                                                                  

2015), aff'd sub nom. Republic of Marsh. Islands v. United States, 865 F.3d 1187 (9th  

                                                                                                                                                                    

Cir. 2017) (dismissing case as political question because court "lack[ed] the standards  

                                                                                                                                                                              

necessary to fashion the type of injunctive relief" sought); Barasich v. Columbia Gulf  

                                                                                                                                                                                                                                 

 Transmission Co., 467 F. Supp. 2d 676, 685 (E.D. La. 2006) ("[T]he nature of the relief  

                                                                                                                                                                                                                               

 sought by the plaintiffs in this action supports a determination that this suit does not fall  

                                                                                                                                                                                                                                    

under the second prong of the political question test."); Ibrahim v. Titan Corp., 391 F.  

                                                                                                                                                                                                                                        

                                                                                                                                                                                                         (continued...)  



                                                                                                                 -31-                                                                                                           7583
  


----------------------- Page 32-----------------------

through [its] historical and ongoing affirmative aggregate and systemic actions" rather                                                                                                                       



than contemporaneously challenging proposed agency action is an unusual argument.                                                                                                                                              



To the extent our focus on the requested relief could be considered unusual, it is in                                                                                                                                  



keeping with the nature of plaintiffs' argument.                                                                           



                                  Contrary to plaintiffs' argument,                                                    Baker  does not foreclose our approach.                                                                 



After explaining that the claims in                                                       Baker  were justiciable, the United States Supreme                                                          



Court cursorily wrote:                                      "[I]t is improper now to consider what remedy would be most                                                                                         

                                                                                                               85  But the Court was not excluding from the  

appropriate if appellants prevail at the trial."                                                                                                                                                                     



political question analysis all consideration of remedies; it was acknowledging that an  

                                                                            



appellate  court  generally  should  not  speculate  about  hypothetical  remedies  after  

                                                                                                                                                                                                               



determining that a trial court improperly dismissed claims as non-justiciable. That is not  

                                                                                                                                                                                                                     



the posture of this case.  The superior court thus did not err by considering plaintiffs'  

                                                                                                                                                                                                   



requested relief as part of its political question analysis.  

                                                                                                                        



                                                                    ii.	             Plaintiffs'  injunctive  relief  claims  present  non- 

                                                                                                                                                                                                               

                                                                                     justiciable political questions.  

                                                                                                                                          



                                  "[T]he relationship between the judiciary and the coordinate branches of  

                                                                                                                                                                                                                       

the . . . Government . . . gives rise to the 'political question.' "86                                                                                               The political question  

                                                                                                                                                                                                       



doctrine maintains the separation of powers by "exclud[ing] from judicial review those  

                                                                                                                                                                                                               



                 84               (...continued)  



                                                                                                                                                                                                           

Supp. 2d 10, 15 (D.D.C. 2005) ("An action for damages arising from the acts of private  

                                                                                                                                                                                                    

contractors                       and           not          seeking                  injunctive                    relief             does             not          involve                 [a        political  

                                

question] . . . .").  



                 85               369 U.S. 186, 198 (1962).  

                                                                                   



                 86               Malone, 650 P.2d at 356 (quoting Baker, 369 U.S. at 210).  

                                                                                                                                                                                          



                                                                                                         -32-	                                                                                                  7583
  


----------------------- Page 33-----------------------

controversies    which    revolve    around    policy    choices   and   value    determinations  

constitutionally committed for resolution to" the political branches of government.                                                                  87  



                        We conclude that plaintiffs' injunctive relief claims present non-justiciable  

                                                                                                                                  

                                                                                 88  We do not reach this conclusion lightly;  

political questions, as did the claims in Kanuk.                                                                                               

                                                                      

Alaska courts have a duty to decide cases properly before them.89  But respect for, not  

                                                                                                          



dereliction of, our constitutional duty warrants this conclusion. The Constitution's text,  

                                                                                                                                                     



the separation of powers doctrine, and Kanuk 's sound precedent prevent us making the  

                                                                                                                                                       



legislative policy judgments necessary to grant the requested injunctive relief.  

                                                                                                                                  



                        As explained earlier, article VIII enshrines an overarching constitutional  

                                                                                                                                    



policy of making natural public resources available for maximumuse consistent with the  

                                                                                                                                                       

public interest.90  It explicitly directs the legislature (and not the judiciary) to manage and  

                                                                                                                                                      



develop the State's natural resources for the maximum common use and benefit of all  

                                                                                                                                                        

Alaskans.91            We have long recognized that, in light of this constitutional delegation of  

                                                                                                                                                        



authority,ourrolein reviewing legislativedecisions about management anddevelopment  

                                                                                                                                      



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



            88          See Kanuk ex rel. Kanuk v. State, Dep't of Nat. Res.                                       , 335 P.3d 1088, 1097-         



99 (Alaska 2014).  

                      



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

                                                                                                                                               

Inc.,  28  P.3d  904,  913  (Alaska  2001)  ("Under  Alaska's  constitutional  structure  of  

                                                                                                                                                        

government, 'the judicial branch . . . has the constitutionally mandated duty to ensure  

                                                                                                                                                

compliance with the provisions of the Alaska Constitution, including compliance by the  

                                                                                                                                                       

legislature.' " (alteration in original) (quoting Malone, 650 P.2d at 356)).  

                                                                                                                         



            90          Alaska Const. art VIII,  1; see supra  II.A.  

                                                                                                          



            91          Alaska Const. art VIII,  2; see supra  II.A; see also Sullivan v. REDOIL,  

                                                                                                                                           

311 P.3d 625, 635 (Alaska 2013) ("The legislature is tasked with the duty to determine  

                                                                                                                                          

the procedures necessary for ensuring the State's resources are used 'for the maximum  

                                                                                                                                          

benefit of its people.' " (quoting Alaska Const. art VIII,  2)).  

                                                                                                                 



                                                                          -33-                                                                     7583
  


----------------------- Page 34-----------------------

 of natural resources is necessarily limited. Our "hard look" approach to cases involving                                                                                           



 the proper balance between development and environmental concerns derived from a                                                                                                                      



 recognition that we cannot, and should not, substitute our judgment for that of the                                                                                                              



                                           92  

political branches.                              



                                We recognize that article VIII is not a complete delegation of power to the  

                                                                                                                                                                                                   

 legislature;93  we have a duty to ensure compliance with constitutional principles,94  and  

                                                                                                                                                                                                  

 we have a duty to redress constitutional rights violations.95                                                                             But the nature of plaintiffs'  

                                                                                                                                                                                   



                92             See   Sullivan,   311   P.3d   at   635   ("We   have   said   that   to   ensure   these  



 [constitutional] principles are followed, it is necessary for the State to take a 'hard look'                                                                                                

 at all factors material and relevant to the public interest . . . .");                                                                                    see also Se. Alaska            

 Conservation Council, Inc. v. State                                                , 665 P.2d 544, 549 (Alaska 1983);                                                    Hammond v.  

North Slope Borough                                , 645 P.2d 750, 759 (Alaska 1982).                                                 



                93             See  Brooks  v.  Wright,  971  P.2d  1025,  1033  (Alaska  1999)  ("[T]he  

                                                                                                                                                                                       

 legislature does not have exclusive law-making powers over natural resource issues  

                                                                                                                                                                                           

 merely because of the state's management role over wildlife set forth in Article VIII of  

                                                                                                                                                                                                     

 the Alaska Constitution . . . ." (emphasis in original));  cf. Malone, 650 P.2d at 356, 359  

                                                                                                                                                                                                 

 (holdingthatlegislature's internal rules ofprocedureweretextually committed by Alaska  

                                                                                                                                                                                          

 Constitution and that "except in extraordinary circumstances, as where the rights of  

                                                                                                                                                                                                     

persons who are not members of the legislature are involved, it is not the function of the  

                                                                                                                                                                                                   

judiciary to require that the legislature follow its own rules").  

                                                                                                                                                 



                94             See, e.g., McDowell v. State, 785 P.2d 1, 8-9 (Alaska 1989) (striking down  

                                                                                                                                                                                             

 statutoryprovision establishing rural residency requirementsfor subsistencehunting and  

                                                                                                                                                                                                  

 fishingas violating articleVIIIequal useprovisions); Owsichekv. State, GuideLicensing  

                                                                                                                                                                                    

 &Control Bd., 763 P.2d 488, 496 (Alaska 1988) (holding "minimumrequirement of [the  

                                                                                                                                                                                                  

public trust] duty [constitutionalized in the common use clause] is a prohibition against  

                                                                                                                                                                                          

 any monopolistic grants or special privileges," and noting "we are compelled to strike  

 down any statutes or regulations that violate this principle").  

                                                                                                                   



                95              Valley Hosp. Ass'n v. Mat-Su Coalition for Choice, 948 P.2d 963, 971-72  

                                                                                                                                                                                          

 (Alaska  1997)  ("[W]e  cannot  defer  to  the  legislature  when  infringement  of  a  

                                                                                                                                                                                                     

 constitutional right results from legislative action.").  

                                                                                                     



                                                                                                -34-                                                                                          7583
  


----------------------- Page 35-----------------------

                                                                                                                                                                                                                                           96  

as-applied   claims   upsets   our   usual   approach  to   reviewing   State   agency   action.                                                                                                                                                  



                                                                                                                                                                                                                     

Plaintiffs  asserted  that  the  State  has  contributed  to  climate  change  and  resulting  



                                                                                                                                                                                                                            

violations of their individual constitutional rights "by and through [the statutory energy  



                                                                                                                                                                                                                                    

policy], implemented through [its] historical and ongoing affirmative aggregate and  



                                                                                                                                                                                                                                

systemic actions."  Plaintiffs' requested remedy thus involves more than striking down  



                                                                                                                                                                                                                                      

a specific statute or regulation or reversing an agency's specific decision.  Plaintiffs ask  



                                                                                                                                                                                                                                

the judicial branch to establish constitutional common law controlling State policy about  



                                                                                                                                                                                                                                                  

the appropriate balancing of resource development against environmental protection.  



                                                                                                                                                                                                                         

And plaintiffs ask us to jettison the constitutional mandate that the legislature manage  



                                                                                                                                                                                     

natural  resources  in  the  public  interest  and  for  the  maximum  benefit  to  Alaskans  



                                     

collectively.  



                                                                                                                                                                                                                    

                                     Plaintiffs  essentially  seek  to  impose  ad  hoc  judicial  natural  resources  



                                                                                                                                                                                                                                                  

management  based  on  case-by-case  adjudications  of individual  fundamental  rights.  



                                                                                                                                                                                                                                 

Judges would be deciding the extent of individual Alaskans' constitutional right to some  



                                                                                                                                                                                                                  

level  of  development  or  conservation  under  article  VIII  based  on  those  individual  



                                                                                                                                                                                                                                       

Alaskans' arguments about what would provide them "a natural right to life, liberty, the  



                                                                                                                                                                                                                               

pursuit of happiness, and the enjoyment of the rewards of their own industry" under  



                                                                                                                                                                                                                          

article I.  But the Constitution expressly delegated to the legislature the duty to balance  



                   96                A litigant may challenge the constitutionality of a statute or government                                                                                                



policy  in  two different ways.                                                         A facial challenge alleges that a statute or policy is                                                                                            

unconstitutional "as enacted"; we will uphold a facially challenged statute or policy                                                                                                                                        

"even if it might occasionally create constitutional problems in its application, as long                                                                                        

as it 'has a plainly legitimate sweep.' "                                                                  State v. Planned Parenthood of the Great Nw.                                                                                      ,  

436 P.3d 984, 1000 (Alaska 2019) (quoting                                                                                   Planned Parenthood of the Great Nw. v.                                                                        

State, 375 P.3d 1122, 1133 (Alaska 2016)). An as-applied challenge alleges that "under                                                                                                                                      

the facts of the case[,] application of the statute [or policy] is unconstitutional.                                                                                                                                        Under  

other facts, however, the same statute [or policy] may be applied without violating the                                                                                                                                                

constitution."   State v. ACLU of Alaska                                                                     , 204 P.3d 364, 372 (Alaska 2009).                                             



                                                                                                                  -35-                                                                                                           7583
  


----------------------- Page 36-----------------------

competing priorities for the collective benefit of all Alaskans.                                                          It thus is impossible to                  



grant    plaintiffs'    requested    injunctive    relief    without    also    infringing    on    an    area  



constitutionally committed to the legislature, abandoning our "hard look" standard of                                                                               



review for natural resource decisions, and disrespecting our coordinate branches of                                                             



government by supplanting their policy judgments with our own normative musings                                                                        



about theproper balanceofdevelopment,management,                                                         conservation, andenvironmental     

protection.97  



                          Because  we  cannot  grant  the  requested  relief  using  factual  and  legal  

                                                                                                                                                             



analyses alone, plaintiffs' claims are not meaningfully distinguishable from the claims  

                                                                                                                                                           

                                    98   We rejected the Kanuk plaintiffs' attempt to obtain an injunction  

brought in Kanuk.                                                                                                                                   



requiring the State to account for and reduce its emissions based on the "best available  

                                                                                                                                                      



science" because it would have involved "underlying policy choices [that were] not ours  

                                                                                                                                                                



             97           Baker v. Carr, 369 U.S. 186, 217 (1962) (noting political question exists  



                                                                                                                                                                     

if  there  is  "a  textually  demonstrable  constitutional  commitment  of  the  issue  to  a  

                                                                                                                                                 

coordinate political department, . . . a lack of judicially discoverable and manageable  

                                                                                                                                                           

standards for resolving it; . . . the impossibility of deciding without an initial policy  

                                                                                                                                                                     

determination of a kind clearly for nonjudicial discretion; [or] the impossibility of a  

                                                                                                                                                                 

court's undertaking independent resolution without expressing lack of the respect due  

                                                                                                                                                               

coordinate branches of government"); see also Alperin v. Vatican Bank, 410 F.3d 532,  

                                                                                                                                                          

544 (9th Cir. 2005) (noting Baker factors often "collaps[e] into one another").  



             98           Kanuk ex rel. Kanuk v. State, Dep't of Nat. Res., 335 P.3d 1088, 1097  

                                                                                                                                                              

(Alaska 2014)  (noting political question doctrine is implicated "when, to resolve a  

                                                                                                                                                                     

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

                                                                                                                                                               

resolving  the  dispute  through  legal  and  factual  analysis"  (quoting  Equal  Emp't  

                                                                                                                                                           

Opportunity Comm'n v. Peabody W. Coal Co., 400 F.3d 774, 784 (9th Cir. 2005))); see  

                                                                                                                                                                  

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

                                                                                                                                                          

"courts are fundamentally underequipped to formulate [large scale] policies or develop  

                                                                                                                                                         

standards  for  matters  not  legal  in  nature"  (quoting  United  States  ex  rel.  Joseph  v.  

                                                                                                                                                                    

Cannon, 642 F.2d 1373, 1379 (D.C. Cir. 1981))).  

                                                                                 



                                                                                -36-                                                                          7583
  


----------------------- Page 37-----------------------

                                                 99  

to make in the first instance."                      The underlying policy choices were legislative because                         



                                                                                                                         100  

they:     (1)   required  an   "informed   assessment   of   competing   interests";                                                 

                                                                                                                              (2)  largely  



                                                                                                                                             101  

                                                                                                                          

depended on the application of "scientific, economic, and technological resources"; 



                                                                                                                                             

and  (3)  would  be  best  made  with  the  input  of  various  stakeholders  outside  of  an  

                                              102   We stated:  

                                                            

inflexible trial court record. 



                       [Although] the science of anthropogenic climate change is  

                                                                                                                        

                      compelling, government reaction to the problem implicates  

                                                                                                          

                      realms ofpublicpolicy besides the objectively scientific. The  

                                                                                                                      

                      legislature - or an executive agency entrusted with rule- 

                                                                                                                   

                      making authority in this area -maydecidethatemployment,  

                                                                                                      

                      resource development, power generation, health, culture, or  

                                                                                                          

                      other        economic           and       social       interests         militate        against  

                                                                                                             

                      implementing  what  the plaintiffs  term the  "best  available  

                                                                                                            

                       science" in order to combat climate change.[103]  

                                                                                    



Kanuk 's core holding on this issue is that the "science- and policy-based inquiry" and  

                                                                                                                                           



policy choices necessary to implement resource development are "better reserved" for  

the political branches.104                 That holding applies to this case.  

                                                                                           



                       Granting injunctive relief would require making the very same legislative- 

                                                                                                                               



like policy choices that in Kanuk we said courts could not make.  Plaintiffs primarily  

                                                                                                                                  



           99         Kanuk, 335 P.3d at 1098.
         



           100  

                                                                                                                                 

                      Id.  (quoting Am.  Elec.  Power  Co.  v.  Connecticut ,  564  U.S.  410,  427
  

(2011)).  



           101        Id. at 1099 (quoting Am. Elec. Power Co. , 564 U.S. at 428).  

                                                                                                                   



           102        See id. (noting that courts may not commission scientific studies, convene  

                                                                                                                                    

groups of experts, seek public input under notice-and-comment procedures, or look  

                                                                                                               

beyond record).  

               



           103        Id. at 1098-99 (footnote omitted).  

                                                                



           104        Id. at 1099.  

                                 



                                                                     -37-                                                               7583
  


----------------------- Page 38-----------------------

 seek an injunction mandating that the State develop a "climate recovery plan" that is                                                                                                                          



 "consistent with                          global emissions reduction                                            rates   necessary   to   stabilize the climate                                  



 system."   Plaintiffs further seek to have the court "[r]etain continuing jurisdiction [to]                                                                                                                



 enforc[e]" that order.                                Granting an injunction necessarily would impose a court-made                                                                    



policy judgment on the other political branches that no                                                                                         competing interest is more                             



 important than                        implementing   the best available science, the plaintiffs'                                                                                     presumptive  

                                                                      105     But this is beyond the "limited institutional role of the  

 source of the reduction rate.                                                                                                                                                                               

judiciary" because it requires a legislative policy judgment. 106  

                                                                                                                          



                                 Plaintiffs pleaded their claims differently than the Kanuk plaintiffs, but that  

                                                                                                                                                                                                            



 does not change our analysis.  We said in Kanuk that the "underlying policy choices"  

                                                                                                                                                                                               



 were not the courts' to make "in the first instance," perhaps unintentionally suggesting  

                                                                                                                                                                                          



 that  future  plaintiffs  could  resolve  the  Kanuk  complaint's  shortcomings  merely  by  

                                                                                                                                                                                                              

 identifyingsomerelevant initial legislativepolicychoice.107  Plaintiffs identify theState's  

                                                                                                                                                                                                     



 codified energy policy as the initial policy determination, although, as we noted above,  

                                                                                                                                                                                                     



plaintiffs really are challenging how the policy is being applied rather than the policy  

                                                                                                                                                                                                     



 itself.               But   plaintiffs  interpret  the  political  question  doctrine  too  rigidly  and  

                                                                                                                                                                                                         



 formalistically.                          The  barrier  in Kanuk  was  not  merely  absence  of  an  initial  policy  

                                                                                                                                                                                   



judgment;  the  Kanuk  plaintiffs  asked  the  courts  to  make  and  enforce  a  particular  

                                                                                                                                                                                            



 legislative-like policy judgment and impose it on the other political branches.   They  

                                                                                                                                                                                                       



 sought to have courts impose the policy judgment that, when undertaking resource  

                                                                                                                                                                                               



                 105             See id.           at 1098-99 (explaining judgment would be legislative because it                                                                                               



 would require informed assessment of competing interests, depend on application of                                                                                                                            

 scientific, economic, and technological resources, and best be made with access to                                                                                                                            

 information beyond limited trial court record).                                                                    



                 106             Id.  



                 107             Id. at 1098.  

                                                



                                                                                                      -38-                                                                                              7583
  


----------------------- Page 39-----------------------

development   under   Alaska's   constitutional   directive   and   various   statutory   policy  



pronouncements, the State must prioritize at all costs the best available science or the                                                                                     



least   climate-damaging   activities.     This   proposed   policy   judgment   would   require  



continuing jurisdiction                           to ensure that the political branches implement what courts                                                         



conclude is the appropriate balancing of interests in developing Alaska's "resources . . .                                                                                        

                                                                                                                108    Asking courts to impose and  

for maximum use consistent with the public interest."                                                                                                                       



enforce such a policy judgment presents a non-justiciable political question.  

                                                                                                                                           



                            Plaintiffs point to Plata v. Brown, a United States Supreme Court decision  

                                                                                                                                                                   



upholding an injunction requiring California to reduce its prison population to 137.5%  

                                                                                                                                                                    

of building design capacity to cure Eighth Amendment violations,109 and they suggest  

                                                                                                                                                                    



that  we  likewise  should  "set  the  constitutional  floor  necessary  for  preservation  of  

                                                                                                                                                                              



[p]laintiffs' rights and leave to [the State] the specifics of developing and implementing  

                                                                                                                                                       



a compliance plan."  But Plata 's remedy was granted in accordance with the Prison  

                                                                                                                                                                      



Litigation ReformAct, which authorized federal courts to require the release of prisoners  

                                                                                                                                                                 

                                                                                                                                             110  Any separation  

as a remedy to cure federal rights violations under certain conditions.                                                                                        

                                                                                                                       



of powers concerns therefore were less salient because Congress had authorized the  

                                                                                                                                                                             

requested remedy.111                         By contrast, the remedy plaintiffs seek in this case would require  

                                                                                                                                                                     



courts to make decisions that article VIII has committed to the legislature, and separation  

                                                                                                                                                               

of powers considerations therefore are clearly implicated.112  

                                                                                                 



              108           Alaska Const. art. VIII, 1.
                     



              109           563 U.S. 493, 509-10, 533 (2011).
                       



              110          Id. at 511; see also  18 U.S.C.  3626(a).
  

                                                                                             



              111           See Plata, 563 U.S. at 511.
  

                                                                           



              112           Plaintiffs  also  cite  several  United  States  Supreme  Court  opinions
  

                                                                                                                                                                

                                                                                                                                                       (continued...)  



                                                                                     -39-                                                                                7583
  


----------------------- Page 40-----------------------

                      TheAlaskaConstitutionandrelevant                            statutes do       not leaveplaintiffs without     



recourse. They            may challengediscreteactionsimplementingStateresourcedevelopment                                 

                                              113                                                                        114   They also  

                                                   They may attempt to legislate by initiative.                                          

and environmental policies.                                                                               



may continue advocating their position to the public and working to generate enough  

                                                                                                                                   



legislative political will to enact their preferred policies and implementations into law.  

                                                                                                                                                 



But having a majority of elected legislators disagree with or lack the political will to  

                                                                                                                                            



           112        (...continued)  



concerning  unconstitutional  racial  discrimination  in  public  schools  and  housing:   Hills  

v.  Gautreaux,  425  U.S.  284  (1976);  Brown  v.  Bd.  of  Educ.,  349  U.S.  294  (1955);  Bolling  

v.  Sharpe,  347  U.S.  497  (1954).   Plaintiffs  do  not  explain  how  these  cases  are  legally  

significant  to   the   issue   before   us.     We   note   that   the   issues   are   dissimilar   and   that,  

although  the  remedies  granted  in  the  cited  cases  may  have  been  complex  or  broad-based,  

granting   the   necessary   remedies   did   not   require   the   Court   to   make   policy   decisions  

explicitly  constitutionally  committed  to  Congress.  



           113        See, e.g., Nunamta Aulukestai v. State, Dep't of Nat. Res., 351 P.3d 1041,  

                                                                                                                                      

                                                       

 1064 (Alaska 2015) (determining certain mineral exploration permits constitute interest  

                                                                                                                                    

in land and requiring public notice); Sullivan v. REDOIL, 311 P.3d 625, 637 (Alaska  

                                                                                                                                  

2013) (interpreting Alaska Constitution to require consideration of cumulative impacts  

                                                                                                                                   

throughout course of oil and gas projects); Cook Inlet Keeper v. State, Off. of Mgmt. &  

                                                                                                                                            

Budget,  Div.  of  Governmental  Coordination,  46  P.3d  957,  962-66  (Alaska  2002)  

                                                                                                                                     

(requiring State to review proposed offshore exploratory drilling site waste discharge for  

                                                                                                                                           

compliance with coastal water protection program); N. Alaska Env't Ctr. v. State, Dep't  

                                                                                                                                      

of Nat. Res., 2 P.3d 629, 639 (Alaska 2000) (requiring best interests finding to grant  

                                                                                                                                       

utility-related right-of-way); Trs. for Alaska v. State, Dep't of Nat. Res., 795 P.2d 805,  

                                                                                                                                        

812  (Alaska  1990)  (finding  oil  and  gas  lease  sale  deficient  for  failing  to  review  

                                                                                                                                   

associated environmental problems).  

                                            



           114        Alaska Const. art. XI,  1; Pebble Ltd. P'ship ex rel. Pebble Mines Corp.v.  

                                                                                                                                   

Parnell, 215 P.3d 1064, 1085 (Alaska 2009) (upholding ballot initiative intended to  

                                                                                                                                            

regulate large-scale mining).  

                                  



                                                                    -40-                                                              7583
  


----------------------- Page 41-----------------------

 enact or implement plaintiffs' preferred policies does not justify an unconstitutional                                                                                                                                                                             

judicial remedy.                                              115  



                                                                                                                                                                                                                                                                                                               

                                                                           b.	                      Plaintiffs' declaratory relief claims and prudential non- 

                                                                                                                                                       

                                                                                                   justiciability analysis  



                                                                                                                                                                                                                                                                                                                

                                                   Plaintiffs also sought adeclaratoryjudgmentstating that: (1) plaintiffs have  



                                                                                                                                                                                                                                                                                                       

 "fundamental and inalienable constitutional rights to life, liberty, and property . . . and  



                                                                                                                                                                                                                                                                                                    

 other unenumerated rights, including the right[] to a stable climate system that sustains  



                                                                                                                                                                                                                                                                                                       

 human life and liberty"; (2) the State has a public trust duty to protect Alaska's natural  



                                                                                                                                                                                                                                                                                                                     

 resources;  (3)  the  State  has  violated  plaintiffs'  various  constitutional  rights  by  



                                                                                                                                                                                                                                                                                                                     

 exacerbating climate change through its statutory energy policy; (4) the State has put  



                                                                                                                                                                                                                                                                                                                   

 plaintiffs  in  danger  by  not  reducing  Alaska's  carbon  emissions;  (5)  the  State  has  



                                                                                                                                                                                                                                                                                                                        

 discriminated against plaintiffs as members of a protected age-based class through its  



                          115                     See Clinton v. City of New York, 524 U.S. 417, 449 (1998) (Kennedy, J.,   



 concurring) ("Failure of political will does not justify unconstitutional remedies.").                                                                                                                                                                                                                                              

 Appellate courts in other states also have concluded that claims requiring the judiciary                                                                                                                                                                                                       

 to evaluate state energy-related policies may present political questions.                                                                                                                                                                                                      Aji P. ex rel.                     

 Piper v. Washington                                                         , 480 P.3d 438, 447 (Wash. App. 2021) (concluding claims asking                                                                                                                                                             

 court   to   "address   whether   [Washington's]   current   [carbon   emission]   statutes   and  

 regulations sufficiently address climate change" presented "political questions" because                                                                                                                                                                                                           

 they "inevitably involve resolution of questions reserved for the" political branches),                                                                                                                                                                                                  

petition for review filed                                                                 , Petition for Discretionary Review,                                                                                                  Aji P. v. Washington                                                           , No.   

  80007-8-I (Wash. Mar. 10, 2021);                                                                                              Sanders-Reed ex rel. Sanders-Reed v. Martinez                                                                                                                                  , 350   

 P.3d    1221,    1227    (N.M.  App.    2015)    (concluding    New    Mexico    "courts    cannot  

 independently regulate greenhouse gas emissions in the atmosphere . . . based solely                                                                                                                                                                                                                     

 upon a common law duty established under the public trust doctrine");                                                                                                                                                                                                        Svitak ex rel.                        

 Svitak v. Washington                                                           , 178 Wash. App. 1020, 1-2                                                                               (2013) (concluding claim presented                                                                  

 "political question" on grounds that plaintiff asked "court to compel [Washington] to                                                                                                                                                                                                                                   

 create an economy-wide regulatory program to address climate pollution" that "would                                                                                                                                                                                                                  

 necessarily involve resolution of complex social, economic, and environmental issues").                                                                                                                                                                                                                                             



                                                                                                                                                          -41-	                                                                                                                                                7583
  


----------------------- Page 42-----------------------

 statutory energy policy; and (6) the State has violated its public trust duty to protect                                                                                      



 Alaska's natural resources.               



                                 As we stated in                        Kanuk :   



                                 The  Baker   factors for identifying non-justiciable issues do                                                                              

                                 not   apply   to   judicial   interpretations   of   the   constitution.   

                                 Indeed,                 "[u]nder                  Alaska's                   constitutional                        structure                  of  

                                 government, 'the judicial branch . . . has the constitutionally                                              

                                 mandated duty to ensure compliance with the provisions of                                                                                     

                                 the Alaska Constitution.' " . . . [C]laims seeking primarily an                                                                               

                                 interpretation of[theAlaskaConstitution]andthepublictrust                                                                                

                                 doctrinedo not present non-justiciablepolitical questions.                                                                                 [116]  



                                 Plaintiffs' declaratory relief claims, like those in Kanuk, do not necessarily  

                                                                                                                                                                                          



present non-justiciable political questions. Plaintiffs seek an interpretation of the Alaska  

                                                                                                                                                                                                    



 Constitution.  They correctly note that we have a "constitutionally mandated duty to  

                                                                                                                                                                                                               



 ensure [executive and legislative branch] compliance with the provisions of the Alaska  

                                                                                                                                                                                                    

 Constitution."117                          But even if plaintiffs' declaratory relief claims do not present non- 

                                                                                                                                                                                                         

justiciable political questions, justiciability is not guaranteed. 118  

                                                                                                                           



                 116             335 P.3d 1088, 1099-100 (Alaska 2014) (first and second alterations in                                                                             



 original) (footnotes omitted) (quoting                                                       State, Dep't of Health & Soc. Servs. v. Planned                                                   

Parenthood of Alaska, Inc.                                         , 28 P.3d 904, 913 (Alaska 2001)).                                 



                 117             Malone v. Meekins, 650 P.2d 351, 356 (Alaska 1982).  

                                                                                                                                                      



                 118             The nature of prudential doctrines allows for case-by-case determination  

                                                                                                                                                                                   

 rather than adherence to bright-line rules.  See, e.g., Johnson v. State, 328 P.3d 77, 82  

                                                                                                                                                             

 (Alaska 2014) ("[T]he general preservation rule [for appealable error] is not absolute,  

                                                                                                                                                                                               

 and it is subject to prudential exceptions."); Alaskans for Efficient Gov't, Inc. v. State ,  

                                                                                                              

 153 P.3d 296, 298 (Alaska 2007) (noting that "rule against pre-election review [of  

                                                                                                                                                                                                             

 initiative's  constitutionality]  is  a  prudential  one"  and  "has  never  been  absolute");  

                                                                                                                                                                                         

Matanuska  Elec.  Ass'n  v.  Chugach  Elec.  Ass'n,  99  P.3d  553,  559  (Alaska  2004)  

                                                                                                                                                                                                     

 (observing that "the primary agency jurisdiction doctrine is one of prudence, and not an  

                                                                                                                                                                                                               

 absolute jurisdictional limitation").  

                                                         



                                                                                                      -42-                                                                                              7583
  


----------------------- Page 43-----------------------

                                       A claim also must present an "actual controversy" that "is appropriate for                                                                                                                               



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



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



 admitting of specific relief through a decree of a conclusive character, as distinguished                                                                                                                        



                                                                                                                                                                                                                                                 119  

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



 As in Kanuk we must determine whether plaintiffs' declaratory relief claims - absent  

                                                                                                                                                                                                                             



 the prospect of any concrete injunctive relief - present an actual controversy.  The  

                                                                                                                                                                                                                                           



 superior court concluded they do not.  We agree.  

                                                                                                                           



                                       We have discussed Alaska's declaratory judgment framework in light of  

                                                                                                                                                                                                                                                  

 its federal counterpart elsewhere and only briefly review it here.120                                                                                                                                 Although Alaska  

                                                                                                                                                                                                                                    



 courts may issue declaratory judgment when there is "an actual controversy," courts are  

                                                                                                                                                                                                                                               



                                                                                                                                                                                                                                                 121  

 not required to grant declaratory relief because it "is a 'nonobligatory remedy.' "                                                                                                                                                                       

                                                                                                                                                                                                                                             



 "[P]racticality and wise judicial administration" thus guide the discretionary decision to  

                                                                                                                                                                                                                                                   

                                                                                           122       And if a court declines to grant declaratory relief, it  

 grant or deny declaratory relief.                                                                                                                                                                                                                  

                                                                          



                    119               Kanuk,   335   P.3d   at   1100   (alteration   in   original)   (quoting   Jefferson   v.  



Asplund ,                       458             P.2d              995,              998-99                   (Alaska                     1969));                    Declaratory                            Judgment                         Act,  

 AS 22.10.020(g) ("In case of an actual controversy in the state, the superior court, upon                                                                                                                                                

 the filing of an appropriate pleading, may declare the rights and legal relations of an                                                                                                                                                         

 interested party seeking the declaration, whether or not further relief is or could be                                                                                                                                                         

 sought.").  



                    120               Kanuk, 335 P.3d at 1100-03 (stating AS 22.10.020(g) was "intended to  

                                                                                                                                                                                                                                                  

 parallel [its] federal counterpart[], and we therefore interpret [it] in light of pertinent  

                                                                                                                                                                                                                              

 federal authority," and discussing framework for reviewing decisions to grant or deny  

 declaratory judgment).  

                                   



                    121               Lowell v. Hayes, 117 P.3d 745, 755 (Alaska 2005) (quoting Wilton v. Seven  

                                                                                                                                                                                                                                        

Falls Co., 515 U.S. 277, 288 (1995)).  

                                                                                     



                    122               Id. (quoting Wilton, 515 U.S. at 288).  

                                                                                                                                   



                                                                                                                       -43-                                                                                                               7583
  


----------------------- Page 44-----------------------

need not undertake a "wasteful expenditure of judicial resources" in "the futile exercise                                                     

of hearing a case on the merits first."                            123  



                                                                                                                                               124  "We  

                        Prudentialconcerns often caution againstissuingdeclaratoryrelief.                                                             

                                                                                                                                     



have  explained  that  declaratory  judgments  are  rendered  to  clarify  and  settle  legal  

                                                                                                                                                   



relations,  and  to  'terminate  and  afford  relief  from  the  uncertainty,  insecurity,  and  

                                                                                                                                                      

controversy giving rise to the proceeding.' "125                                       Prudence therefore dictates that courts  

                                                                                                                                          

should not grant declaratory relief unless it will meaningfully accomplish these goals.126  

                                                                                                                                                               



Consideration of these goals counsels against granting declaratory relief in this case, as  

                                                                                                                                                          



                            127  

it did in Kanuk.  

                



                        In Kanuk we concluded that declaratory relief "could serve to clarify the  

                                                                                                                                                        

legal relations at issue, [but] it would certainly not 'settle' them."128                                                         We listed five  

                                                                                                                                                      



reasons the parties' legal relations would have remained unsettled, because declaratory  

                                                                                                                                         



relief would:   (1) have had "no immediate impact on greenhouse gas emissions in  

                                                                                                                                                         



Alaska"; (2) not have compelled "the State to take any particular action"; (3) not have  

                  



protected "the plaintiffs from the injuries they allege[d] in their complaint"; (4) "not tell  

                                                                                                                                                        



the State what it need[ed] to do . . . to satisfy its trust duties and thus avoid future  

                                                                                                                                                  



litigation"; (5) conversely . . . not provide the plaintiffs any certain basis on which to  

                                                                                                                                                         



            123          Wilton,  515  U.S.  at  287-88.
  



            124         See,  e.g.,  Kanuk,  335  P.3d  at   1101.
  



            125         Lowell,  117  P.3d  at  755  (quoting  Jefferson  v.  Asplund ,  485  P.2d  995,  997- 



98  (Alaska   1969)).  



            126         Id. ;  see  also  Kanuk,  335  P.3d  at   1100-03.  



            127         See  Kanuk,  335  P.3d  at   1100-03.  



            128         Id.  at   1102.  



                                                                           -44-                                                                    7583
  


----------------------- Page 45-----------------------

                                                                                                                                                                               129  

determine in the future whether the State has breached its duties as trustee."                                                                                                         We  



concluded that declaratory relief would not have advanced "the goals of 'terminat[ing]                                                                           



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



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

                130   Declaratory relief in this case thus should be granted only if it settled the legal  

relief."                                                                                                                                                                              



relations between the parties more fully than it would have in Kanuk.  

                                                                                                                                          



                              Plaintiffs argue that the prudential analysis in Kanuk does not apply in this  

                                                                                                                                                                                         



case "given the distinct factual circumstances underlying the present case, including the  

                                                                                                                                                                                          



. . . acceleration of climate change."  But our prudential analysis in Kanuk did not turn  

                                                                                                                                                                                       



on climate change acceleration; it turned on our inability to "provide the plaintiffs any  

                                                                                                                                                           



certain basis on which to determine in the future whether the State has breached its  

                                                                                                                                                                                           

                 131  Plaintiffs do not explain howthis case's "distinctfactual circumstances"make  

duties."                                                                                                                                                                             



it  more  likely  that  declaratory  relief  would  achieve  this  goal.                                                                            In  truth  a  dynamic  

                                                                                                                                                                            



acceleration of climate change would reinforce the reality that the judiciary is the least  

                                                                                                                                                                                      



competent  branch  to  address  climate  challenges  because  we  "lack  .  .  .  scientific,  

                                                                                                                                                                       



economic, and technological resources" and "may not commission scientific studies or  

                                                                                                                                                                                            

convene groups of experts" essential to understanding evolving complexities.132  

                                                                                                                                               



               129           Id.  



               130           Id.  (alterations in original) (quoting                                         Lowell, 117 P.3d at 755).                     



               131           Id.  



               132  

                                                                                                                                                                                       

                              See id. at 1099 (quoting Am. Elec. Power Co. v. Connecticut , 564 U.S. 410,  

428 (2011)).   



                                                                                            -45-                                                                                     7583
  


----------------------- Page 46-----------------------

                         We see two relevant differences between this case and                                                Kanuk.   The  Kanuk  



                                                                                                                      133  

plaintiffs asserted a single right under the public trust doctrine;                                                                               

                                                                                                                           in this case plaintiffs  



                                                                                                                                                       

assert additional constitutional rights beyond the public trust doctrine.  And the Kanuk  

                                                                                                                                        134  in this case  

                                                                                                                                                           

                                                                                                                         

plaintiffs alleged that the State had violated their rights through inaction; 



plaintiffs allege that the State has violated their rights through past actions implementing  

                                                                                                                                         



the State's energy policy. But neither distinction suggests that granting declaratory relief  

                                                                                                                                                          



(absent injunctive relief) would settle the parties' legal relations more fully than it would  

                                                                                                                                                       



have in Kanuk.   Declaratory relief alone still would "have no immediate impact on  

                                                                                                                                                              



[carbon] emissions," "would not compel the State to take any particular action," and  

                                                                                                                                                            

would not "protect the plaintiffs from the injuries they allege."135                                                        It also would not tell  

                                                                                                                                                             



the State how to fulfill its constitutional obligations or help plaintiffs determine when  

                                                                                                                                                         

                                                                                            136       Without  judicially  enforceable  

their  constitutional  rights  have  been  violated.                                                                                        

                                                                           



standards, which the political question doctrine prevents us from developing, declaring  

                                                                                                                                                  



theexistenceor evenviolationofplaintiffs'various purported constitutional rights would  

                                                                                                                                                        



not settle the parties' legal relations any more than it would have in Kanuk.  

                                                                                                                                

                         The dissent concedes that this is the correct result if Kanuk is followed.137  

                                                                                                                                                                    

But the dissent concludes that our Kanuk  analysis no longer is sound.138                                                                   The dissent  

                                                                                                                                                      



agrees  with  plaintiffs  that  article  VIII  and  its  implied  public  trust  doctrine  create  

                                                                                                                                                       



             133         Id .  



             134         Id.  at 1090-91.
   



             135         See id      . at 1102 (explaining that declaratory relief would not settle parties'
                                        



legal relations).   



             136         See id.  

                                        



             137         Dissent at 59.  

                                              



             138         Id. at 59-60.  

                                     



                                                                             -46-                                                                        7583
  


----------------------- Page 47-----------------------

individual fundamental constitutional "rights in the development, conservation, and use                                                                



                                                                             139  

 of our natural resources and environment."                                                                                                            

                                                                                   And the dissent agrees with plaintiffs that  



                                                                                                                                                           

 article VIII grants each Alaskan an individual fundamental constitutional "right to a  



                                                                                                                                                        140  

                                                                                                                                                               

                                                                                                                                                       

 climate system that is healthy enough to 'sustain human life, liberty, and dignity.' " 



Finally, the dissent agrees with plaintiffs that we should effectively enter declaratory  

                                                                                                                                        



judgment in their favor by holding that they have individual fundamental constitutional  

                                                                                                                                     



rights to Alaska's natural resources under article VIII, which includes a right to a stable  

                                                                                                                                                   

 climate system.141  

                



                         The dissent describes this as "an admittedly small step in the daunting  

                                                                                                                                             

project of focusing governmental response to" climate change.142  But the dissent says  

                                                                                                                                 



nothing about the next step it would take in this case.  The plaintiffs' ultimate goal in  

                                                                                                                                                         



having us recognize a new fundamental constitutional right - and requiring a State  

                                                                                                                                                   



response to global climate change - can be realized only if plaintiffs are allowed to  

                                                                                                                                                         



pursue a remedy for the claimed violations of their fundamental constitutional rights.  

                                                                                                                                                               



Would  the  dissent  remand  for  further  proceedings  to  allow  plaintiffs  to  seek  their  

                                                                                                                                                    



injunctive remedies? Or does the dissent continue to agree with Kanuk 's proposition that  

                                                                                                                                                       



the political question doctrine prevents plaintiffs from seeking relief in this context?  If  

                                                                                                                                                          



the  latter,  what  point  is  there  in  the  dissent's  proposed  creation  of  unenforceable  

                                                                                                                                   

 fundamental constitutional rights under article VIII?143  

                                                                                      



             139        Id.  at 63, 65.
     



             140        Id.  at 61.
   



             141        Id. at 61-62.
  

                                    



             142        Id. at 68.
  

                                    



             143         TheNewMexico experienceis instructive. In1971, after aspecial election,
  

                                                                                                                                              

                                                                                                                                    (continued...)  



                                                                           -47-                                                                    7583
  


----------------------- Page 48-----------------------

                                                                  If the dissent envisions allowing plaintiffs to seek to establish violations of                                                                                                                                                                                                                                                                          



their constitutional rights, that would entirely disregard, and indeed effectively would                                                                                                                                                                                                                                                                                                              



 overrule, our precedent about the judiciary's limited role in determining whether, in a                                                                                                                                                                                                                                                                                                                                       



 challenge to agency action regarding natural resource development and environmental                                                                                                                                                                                                                                                                          



                                 143                              (...continued)  



                                                                                                                                                                                                                                                                                                                                                                                                    

New Mexico added an explicit constitutional provision requiring its legislature to protect  

                                                                                                                                                                                                                                                                                                                                                                                                                       

the environment.  See Craig T. Othmer & Henry M. Rivera, On Building Better Laws for  

                                                                                                                                                                                                        EV. 105, 105 n.1 (1973).                                                                                                 

New Mexico's Environment, 4 N.M. L. R 



                                                                 Article XX, section 21 of the New Mexico Constitution provides:                                                                                                                                                                                                                  



                                                                  The    protection    of    the    state's    beautiful    and    healthful  

                                                                  environment    is    hereby  declared    to    be    of    fundamental  

                                                                  importance   to   the   public   interest,   health,   safety   and   the  

                                                                  general welfare.                                                                The legislature shall provide for control of                                                                                                                                                            

                                                                 pollution and control of despoilment of the air, water and                                                                                                                                                                                      

                                                                  other natural resources of this state, consistent with the use                                                                                                                                                                                                                   

                                                                  and development of these resources for the maximum benefit                                                                                                                                                                                                       

                                                                  of the people.               



                                                                  In  Sanders-Reed v. Martinez                                                                                                             the plaintiffs sought a                                                                            judgment declaring that                                                                              

the public trust doctrine imposes a state duty to regulate greenhouse gas emissions in                                                                                                                                                                                                                                                                                                                                     

New Mexico.                                                           350 P.3d 1221, 1222 (N.M. App. 2015).                                                                                                                                                                               The New Mexico Court of                                                                                                        

Appeals   agreed   with   the   plaintiffs   that   New   Mexico's  constitutional   provision  

 "recognizes that a public trust duty exists for the protection of New Mexico's natural                                                                                                                                                                                                                                                                                                           

resources, including the atmosphere, for the benefit of the people of this state."                                                                                                                                                                                                                                                                                                                     Id.  at  

  1225.     But   the   court   also  noted   that   the   constitutional   provision   "delegates   the  

 implementation   of   that   specific   duty  to   the   Legislature."     Id.   at   1226.     The   court  

 concluded that whatever common law power the judicial branch may have had under the                                                                                                                                                                                                                                                                                                                                   

public trust doctrine to "independently establish the best way to implement protections                                                                                                                                                                                                                                                                                        

 for the atmosphere, apart from its judicial review [of agency] actions" was superseded                                                                                                                                                                                                                                                                                       

by the constitutional delegation to the legislature and the legislature's corresponding                                                                                                                                                                                                                                                                      

 "statutory   scheme."     Id.     The   court   further  explained   that   issuing   a   decision   that  

 "independently ignores and supplants the [adjudicative] procedures established" by the                                                                                                                                                                                                                                                                                                                               

 legislature in its environmental laws would violate separation-of-powers principles.                                                                                                                                                                                                                                                                                                                                Id.  

 at 1227.   



                                                                                                                                                                                                         -48-                                                                                                                                                                                                 7583
  


----------------------- Page 49-----------------------

protection, the agency has followed regulatory procedures and taken a "hard look" at all                                                                                              



                                                    144  

relevant considerations.                                                                                                                                                        

                                                           The judiciary's formerly limited role would change to case- 



                                                                                                                                                                        

by-case  judicial  determinations  about  the  State's  compelling  interests  in  resource  



                                                                                                                                                                                

development, an individual's fundamental right to a particular atmospheric carbon level,  



                                                                                                                                                                             

and whether the State's proposed action is sufficiently tailored or tethered to the State's  

                    145  Judges would decide, as a matter of constitutional law, questions such as:  

interests.                                                                                                                                                                                   



what comprises a stable climate system; is a stable climate systemmeasured by Alaskans  

                                                                                                                                                                        



uniquely susceptible to environmental harms or is there some arbitrary climate stability  

                                                                                                                                                                          



level for most, but not all, Alaskans; and should a court ultimately order that the State  

                                                                                                                                                                        



deny all permit applications for oil and gas drilling?  

                                                                                               



                             Declaratory judgment about the legislature's article VIII duties would do  

                                                                                                                                                                                      



little more than restate the constitutional provisions while leaving the legislature to  

                                                                                                                                                                                       



resolve how the State should fulfill those duties for the maximum benefit of Alaskans  

                                                                                                                                                                 

                           146      And  a  declaratory  judgment  about  putative  individual  fundamental  

collectively.                                                                                                                                                   



constitutional  rights  to  a  stable  climate  system  would  provide  no  guidance  to  the  

                                                                                                                                                                                    



               144           Cf. supra            section II. C. (discussing limited judicial role in natural resource                                                   



policies due to                    "hard look" doctrine                             of ensuring                that legislature has considered all                                   

relevant factors when making natural resource decisions);                                                                      supra  note 143 (discussing         

New Mexico court's deferral to regulatory framework for constitutionally mandated                                                                                     

legislative decision-making on resource development and environmental protection).                                                                             



               145           See  supra  note  48  (discussing  various  constitutional  frameworks  for  

                                                                                                                                                                                    

resolving fundamental constitutional rights violation claims).  

                                                                                                                    



               146             See  supra  note  143  (discussing  New  Mexico  deferral  to  regulatory  

                                                                                                                                                                    

framework  for  constitutionally  mandated  legislative  decision-making  on  resource  

                                                                                                                                                                        

development and environmental protection).  

                                                                        



                                                                                         -49-                                                                                   7583
  


----------------------- Page 50-----------------------

legislature about undertaking its article VIII duties.                                                    We thus affirm the superior court's                       

dismissal of plaintiffs' declaratory relief claims on prudential grounds.                                                                         147  



                                                                                                                                

                                         c.	           Plaintiffs' other argument about dismissal  



                                                                                                                                                                         

                           Plaintiffs also argue that the superior court should not have dismissed their  



                                                                                                                                                                             

case  because  a  "claim  should  not  be  dismissed  as  long  as  some  relief  might  be  



                      148  

available."                                                                                                                                                                   

                              But plaintiffs identify no viable relief, and we do not require courts to  



                                                                                                                                                                             

conduct trials based on the suggestion that some unidentified relief possibly could be  



                                                                                                                      

available.  Plaintiffs ultimately face the same barrier the Kanuk plaintiffs faced:  Their  



                                                                                                                                                                

claims  for  injunctive  relief present  non-justiciable  political  questions,  and  granting  



                                                                                                                                                                            

declaratory relief alone would not meaningfully settle the legal relations between the  

parties.149  



                                                                                                                                                                      

              B.	          Dismissal  Of                     Plaintiffs'  Claims  About  The  Denial  Of  The  Rule- 

                                                                 

                            making Petition  



                                                                     

                            1.	          Standard of review  



                                                                                                                                                                        

                           We  apply  the  "reasonable  and  not  arbitrary"  standard  to  agency  rule- 



                                                                                             150  

                                                                                                                                                                    

making decisions about adopting regulations.                                                        For questions of law involving agency  



                                                                                                                                                                                

expertise, we apply the reasonable basis standard and "must confirm that the agency '. . .  



                                                                                                                                                                            

has genuinely engaged in reasoned decision making' and must verify that the agency has  



              147           Contrary to plaintiffs' contention, we do not believe the superior court                                                                   



"reached consideration of whether Alaska's Constitution protects" the right to a stable                                                                               

climate.   The court ultimately "dismissed on prudential grounds" plaintiffs' declaratory                                                                   

relief claims.               



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

                                                                                                                               



              149          See Kanuk ex rel. Kanuk v. State, Dep't of Nat. Res., 335 P.3d 1088, 1100- 

                                                                                                                                                                       

03 (Alaska 2014).  

                         



              150	         Kelly v. Zamarello, 486 P.2d 906, 911 (Alaska 1971).  

                                                                                                                              



                                                                                     -50-	                                                                              7583
  


----------------------- Page 51-----------------------

                                                                                                                                 151  

not failed to consider an important factor in making its decision."                                                                    But questions of   



constitutional interpretation are reviewed de novo under the substitution of judgment                                                                 

standard.152  



                          2.           Analysis  



                                                                                                                                                           

                          Plaintiffsasserted that theDepartment's denial oftheir rule-making petition  



                                                                                                                                             

violated  their  constitutional  rights.                                   The  superior  court  viewed  this  constitutional  



                                                                                                                                                                  

challenge as a claim that the denial was arbitrary, thus violating plaintiffs' right to due  



                                                                                                                                                              

process in the agency proceedings. The court cited Johns v. Commercial Fisheries Entry  



                                                                                                                                            

Commission,  in  which  we  affirmed  courts'  "power  .  .  .  to  look  for  administrative  



                                                                                            153  

                                                                                                                                                                          

compliance with the demands of due process."                                                       When exercising this power, courts  



                                                                                                                                                                      

consider whether the agency's decision was reasonable and not arbitrary and whether it  

                                                                           154    A decision is arbitrary if "an agency fails to  

                                                                                                                                                                     

                                                           

complied with the applicable statutes. 

consider an important factor in making its decision";155  

                                                                                                                                                              

                                                                                                               an agency must take "a 'hard  



                                                                                                                                                                    156  

                                                                                                                                                   

look' at the salient problems" and "genuinely engage[] in reasoned decision making." 



             151          Alaska Ctr. for the Env't v. State                            , 80 P.3d 231, 241 (Alaska 2003) (quoting                       



 Trs. for Alaska v. State, Dep't of Nat. Res.                                     , 795 P.2d 805, 809 (Alaska 1990)).                      



             152          Club SinRock, LLC v. Mun. of Anchorage, Off. of Mun. Clerk, 445 P.3d  

                                                                                                                                                                

 1031, 1033-34 (Alaska 2019) (quoting Studley v. Alaska Pub. Offs. Comm'n, 389 P.3d  

                                                                                                                                                                

 18, 22-23 (Alaska 2017)).  

                                     



             153          699 P.2d 334, 339 (Alaska 1985).  

                                                                                



             154          See id. at 339-40.  

                                              



             155          Se.  Alaska  Conservation  Council,  Inc. v.  State, 665 P.2d  544,  548-49  

                                                                                                                                               

(Alaska 1983), superseded on other grounds by statute, ch. 86, SLA 2003.  

                                                                                                                                       



             156          Id.   (emphasis   omitted)   (quoting   Harold   Leventhal,  Environmental  

                                                                                                                                          

                                                                                                        A. L. R      EV. 509, 511 (1974)).                       

Decisionmaking and the Role of the Courts, 122 U. P 

                                                                                                



                                                                                -51-                                                                           7583
  


----------------------- Page 52-----------------------

                                                                           The    superior    court    found    no   constitutional    violation    because    the  



Department  "timely   issued   a   four[-]page   written   decision   that   addressed   each   of  



 [p]laintiffs' points" and explained its position "with supporting statutes, case law and                                                                                                                                                                                                                                                                                                                                                                                    



well-reasoned analysis," and therefore the denial "satisfied the statutory due process                                                                                                                                                                                                                                                                                                                                                                 



requirements  described   in   Johns ."      Notably,    the    Department's    decision    shows  



 consideration of the "salient problem" central to plaintiffs' petition: impending climate                                                                                                                                                                                                                                                                                                                                                               



 disaster.   The Department informed plaintiffs that responding to climate change was an                                                                                                                                                                                                                                                                                                                                                                                             



 administration priority; that the governor recently had appointed a "senior advisor for                                                                                                                                                                                                                                                                                                                                                                                         



 climate and directed her to work with state agencies, tribes and stakeholders on options                                                                                                                                                                                                                                                                                                                                                                



that best meet Alaska's [climate-related] needs"; and that a petitioner group, Alaska                                                                                                                                                                                                                                                                                                                                                                     



Youth for Environmental Action, had "been invited to send a representative to [an                                                                                                                                                                                                                                                                                                                                                                                             



upcoming] meeting . . . to discuss the path forward for Alaska."                                                                                                                                                                                                                                                                                                                               The Department   



 "encourage[d] [plaintiffs] to continue to engage with the State's executive branch and                                                                                                                                                                                                                                                                                                                                                                                       



to also reach out to the legislative branch, in seeking creative solutions to addressing                                                                                                                                                                                                                                                                                                                                             



 climate change in Alaska."                                                                                                                            Because the Commissioner seriously considered the factors                                                                                                                                                                                                                                            



important to his decision - including its impact on the climate crisis - we agree with                                                                                                                                                                                                                                                                                                                                                                                   



the superior court that the decision was not arbitrary and that it therefore satisfied due                                                                                                                                                                                                                                                                                                                                                                                   



process.  



                                                                           As the State points out, we never have described our power to review an                                                                                                                                                                                                                                                                                                                                   



 agency's denialof a proposed regulation as extending beyond theprocedural dueprocess                                                                                                                                                                                                                                                                                                                                                                    

                                                                                                                                                           157                  Plaintiffs argue, however, that the denial of their rule- 

review addressed in                                                                                                  Johns .                                                                                                                                                                                                                                                                                                                                           



                                      157                                  See   699   P.2d   at   339   (noting   that   "[t]he   absence   of   any   mention   of  



reviewability in AS 44.62.230 [the statute providing for rulemaking petitions] does not                                                                                                                                                                                                                                                                                                                                                                                         

necessarily mean a court cannot pass on the validity of an act done pursuant to the                                                                                                                                                                                                                                                                                                                                                                                            

provision" and holding that "[c]ourts have the power in situations such as this . . . to look                                                                                                                                                                                                                                                                                                                                                                             

 for administrative compliance with the demands of due process").                                                                                                                                                                                                                                                      



                                                                                                                                                                                                                                       -52-                                                                                                                                                                                                                             7583
  


----------------------- Page 53-----------------------

making petition violated "substantive due process, equal protection, and public trust                                                                                       



rights" and that the superior court erred by failing to evaluate the decision under the                                                                                        



heightened standards applicable to these substantive constitutional rights. But plaintiffs                                                                         



cite no authority for the proposition that an agency's  denial of a rule-making proposal   

                                                                                  158 or adjudicating a dispute159  - can violate an  

-  contrasted with issuing a regulation                                                                                                                          



individual's  fundamental  constitutional  rights.                                                          And  this  argument  assumes  the  

                                                                                                                                                                             



Department's rule-making authority is much broader than it may be.  

                                                                                                                                          



                            The  Department  discussed  several  justifications  for  denying  the  rule- 

                                                                                                                                                                           



making petition:  that the proposed regulation, by setting "broad policy goals," failed to  

                                                                                                                                                                                  



meet the definition of "regulation" established by Alaska Statutes and case law; that the  

                                                                                                                                                                               



proposed regulation "require[d] actions that are inconsistent with practical and fiscal  

                                                                                                                                                                          



constraints on the State and [the Department]"; that the proposed regulation went beyond  

                                                                                                                                                                       



the Department's statutory authority; that the proposed regulation conflicted with more  

                                                                                                                                                                           



              158           See, e.g.        ,  State, Dep't of Fish &Game v. Manning                                            , 161 P.3d 1215, 1219-25           



(Alaska               2007)             (analyzing                  whether               subsistence                   hunting               regulations                  were  

unconstitutional);  Church v. State, Dep't of Revenue                                                         , 973 P.2d 1125, 1130-32 (Alaska                       

 1999) (holding PFDeligibility regulations wereconstitutional);                                                                   seealso Hjellev.                   Brooks,  

377   F.   Supp.   430,   440-42   (D.   Alaska   1974)   (holding   crabbing   regulations   were  

unconstitutional and enjoining enforcement of regulations).                                        



              159           See, e.g., Club SinRock, LLCv. Mun. of Anchorage, Off. of Mun. Clerk, 445  

                                                                                                                                                                              

P.3d 1031, 1033, 1036-39 (Alaska 2019) (analyzing de novo free speech issue arising  

                                                                                                                                  

from agency adjudication);  see also McGrath v. Univ. of Alaska, 813 P.2d 1370, 1373- 

                                                                                                                                                                         

74 (Alaska 1991) (explaining difference between rule making and adjudication and  

                                                                                                                                                                             

noting "agencies employ rule[-]making procedures to resolve broad policy questions  

                                                                                                                                                                 

affecting  many  parties and turning  on  issues of  'legislative fact' " (quoting Indep.  

                                                                                                                                                                       

Bankers Ass'n of Ga. v. Bd. of Governors of Fed. Rsrv. Sys., 516 F.2d 1206, 1215 (D.C.  

                                                                                                                                                                          

Cir. 1975)); Erickson v. Mun. of Anchorage, 662 P.2d 963, 969 (Alaska App. 1983)  

                                                                                                                                                                         

(defining  legislative facts as "those assumptions of fact,  involving  social,  political,  

                                                                                                                                                                  

economic or scientific considerations, which a legislature . . . makes in the course of  

                                                                                                                                                                                 

reaching the policy decisions which it articulates in theformof statutes and ordinances").  

                                                                                                                                                                                       



                                                                                      -53-                                                                                 7583
  


----------------------- Page 54-----------------------

lenient federal standards and therefore, under Alaska law, would require support from   



peer-reviewed studies before it could be adopted; and that - given Alaska's modest                                                                                                             



contribution to global warming worldwide -the proposed regulation would not achieve                                                                                                            



the petitioners' goals even if implemented.                                                              



                                We find it sufficient to highlight one of these grounds: that the Department                                                                         



                                                                                                                                                                                                           160  

cannot   use   its   rule-making   authority   to   "contradict   a   clear   legislative   policy."                                                                                                               



Regulations must be "consistent with and reasonably necessary to implement the statutes  

                                                                                                                                                                                               

authorizing  their  adoption."161                                               A  regulation  is  invalid  if  it                                          "conflicts  with  other  

                                                                                                                                                                                                   

statutes."162  



                                The legislature's stated energy policy recognizes "concerns about global  

                                                                                                                                                                                                  



climate change" but at the same time "encourage[s] economic development by . . .  

                                                                                                                                                                                                           



promoting the development, transport, and efficient use of nonrenewable and alternative  

                                                                                                                                                                                        



energy resources, including natural gas, coal, oil, gas hydrates, heavy oil, and nuclear  

                                                                                                                                                                                               

                                                                                                                    163        The  legislature's  stated  resource  

energy,  for  use  by  Alaskans  and  for  export."                                                                                                                                        

                                                                                               



development policy refers to "purposeful development of the state's abundant natural  

                                                                                                                                                                        



resources" being "undertaken after consideration of the social and economic views of  

                                                                                                                                                                                                                   



citizens impacted by the development, and only after adequate protection is assured for  

                                                                                                                                                                                                          



                160             See Richardson v. Felix                                  , 856 F.2d 505, 511 (3d Cir. 1988) ("It is axiomatic                                             



that an administrative regulation or practice cannot validly contradict a clear legislative                                                                                             

policy.").  



                161             Manning v. State, Dep't of Fish &Game, 355 P.3d 530, 534 (Alaska 2015)  

                                                                                                                                                                                                   

(quoting  Wilber v. State, Com. Fisheries Entry Comm'n, 187 P.3d 460, 464 (Alaska  

                                                                                                                                                                                              

2008)).  



                162             Id. (quoting Wilber, 187 P.3d at 464-65).  

                                                                                                               



                163             AS 44.99.115.  

                                          



                                                                                                   -54-                                                                                              7583
  


----------------------- Page 55-----------------------

                                                164  

Alaska's   environment."                                And   the   legislature's   stated   Arctic   policy   emphasizes  a  



commitment to economic development "consistent with the state's responsibility for a  



healthy environment," including existing and new "approaches for responding to a                                                                                         

                                      165     The Department reasonably could conclude that the proposed  

changing climate."                                                                                                                                       



regulation was inconsistent with the legislature's statutory policies and thus outside its  

                                                                                                                                                                       



delegated authority. Because the decision to deny the rule-making petition therefore has  

                                                                                                                                                                     

"a reasonable basis in law,"166  we affirm the superior court's rejection of plaintiffs'  

                                                                                                                                                        



challenge to the Department's rule-making denial.  

                                                                                       



V.           CONCLUSION  



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

                                                                                                                                            



             164          AS 44.99.100(a).
   



             165          AS 44.99.105(a)(1).
  

                                                                     



             166  

                                                                                                                                                                

                          Alaska Cmty. Action on Toxics v. Hartig , 321 P.3d 360, 366 (Alaska 2014)
  

(quoting  Storrs v. State Med. Bd.                                , 664 P.2d 547, 554 (Alaska 1983)).                      



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----------------------- Page 56-----------------------

MAASSEN, Justice, with whom CARNEY, Justice, joins, dissenting in part.                                                                                             



                              I disagree with the court's rejection of declaratory relief as serving no                                                                                       



useful purpose.  In my view, a balanced consideration of prudential doctrines requires   



that we explicitly recognize a constitutional right to a livable climate - arguably the                                                                                                      



bare   minimum   when   it   comes   to   the   inherent   human   rights   to   which   the   Alaska  

Constitution is dedicated.                                1  



               A.             A Declaratory Judgment Is An Available Remedy.  

                                                                                                                                   



                              This case was decided on a motion to dismiss.  But " '[m]otions to dismiss  

                                                                                                                                                                                   



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

                                                                                                                                                                                             

plaintiff can prove no set of facts that would entitle him or her to relief.' "2  

                                                                                                                                                                                             

                                                                                                                                                                         "Even if the  



                                                                                                                                                                                         

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

                                                                                                                     3    The alleged facts in this case are,  

                                                                                                                                                                                            

                                                                                                       

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



essentially, that rapidly accelerating climate change is causing serious damage on a  

                                                                                                                                                                                                 



spectrum  ranging  from  the  individual  to  the  global,  and  that  the  State,  while  

                                                                                                                                                                                     



acknowledging the problem, continues to actively compound it.  Given these alleged  

                                                                                                                                                                                   



               1              See   Alaska   Const.   art.   I,      1   ("This   constitution  is  dedicated   to   the  



principles that all persons have a natural right to life, liberty, the pursuit of happiness,                                                                                

and the enjoyment of the rewards of their own industry . . . .").                                                                    



               2              Kanuk v. State, Dep't of Nat. Res., 335 P.3d 1088, 1092 (Alaska 2014)  

                                                                                                                                                                                      

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

                                                                                                                                                                                    



               3              Adkins , 204 P.3d at 1033; seealso Jefferson v. Asplund, 458 P.2d 995, 1000  

                                                                                                                                                                                         

(Alaska 1969) ("The test of the sufficiency of a complaint in a declaratory judgment  

                                                                                                                                                                              

proceeding is not whether the complaint shows that the plaintiff will succeed in getting  

                                                                                                                                                                                    

a declaration of rights in accordance with his theory and contention but whether he is  

                                                                                                                                                                                                

entitled to a declaration of rights at all." (citing City of Mobile v. Gulf Dev. Co., 171  

                                                                                                                                                                                           

So. 2d 247, 257 (Ala. 1965))).  

                                                   



                                                                                             -56-                                                                                        7583
  


----------------------- Page 57-----------------------

facts, a declaratory judgment about the nature of the rights at stake is a small but not                                                                                                                       



inconsequential bit of relief.                                                      



                                      Five    of    the    plaintiffs'    claims    -    paragraphs    3-7    of    the    amended  



complaint - seek declarations that their "fundamental and inalienable constitutional                                                                                                                            



rights" have been violated by various actions of the State, both directly and through the                                                                                                                                                      



 State's energy policy.                                           In order to determine whether the State's constitutional duties                                                                                                     

                                                                                                                                                                                                   4     This question is  

have been breached we must first determine whether a duty exists.                                                                                                                                                                                  



raisedby theamendedcomplaint's firsttworequests for declaratory judgment, whichask  

                                                                                                                                                                                                                                               



the court to do the following:  

                                                      



                                       1.                Declare that Defendants have constitutional duties and  

                                                                                                                                                                                                        

                                       constitutional and statutory authority to protect and refrain  

                                                                                                                                                                                              

                                       from  infringing  Plaintiffs'  fundamental  and  inalienable  

                                                                                                                                                                                

                                       constitutionalrights to life, liberty, and property;equal rights,  

                                                                                                                                                                                                

                                       opportunities  and  protection  under  the  law;  and  other  

                                                                                                                                                                                 

                                      unenumerated rights, including the rights to a stable climate  

                                                                                                                                                                                             

                                       system that sustains human life and liberty [and] dignity, to  

                                                                                                                                                                                    

                                      personal  security  and  safety,  autonomy,  and  other  liberty  

                                                                                                                                                                                              

                                       interests, including their capacity to provide for their basic  

                                                                                                                                                                                   

                                      human needs, safely raise families, learn and practice their  

                                                                                                                                                                                                    

                                      religious and spiritual beliefs, learn and transmit their native  

                                                                                                                                                                                                

                                       cultural traditions and practices, and lead lives with sufficient  

                                                                                                                                                                                       

                                       access to clean air, water, shelter, and food.  

                                                                                                                                                    



                                      2.                 Declare that Defendants have constitutional duties and  

                                                                                                                                                                                                        

                                       constitutional and statutory authority under the Public Trust  

                                                                                                                                                                                                   

                                      Doctrine  to  maintain  control  over  and  protect  Alaska's  

                                                                                                                                                                                       

                                      waters,  atmosphere,  land,  fish,  wildlife,  and  other  Public  

                                                                                                                                                                                              



                   4                   Cf. Dore v. City of Fairbanks                                                       , 31 P.3d 788, 791 (Alaska 2001) ("In order                                                                   



to reach the questions of whether the city has statutory immunity or has breached its                                                                                                                                                            

duty, we must first determine whether the city owes a duty in tort to the plaintiff.");                                                                                                                                

Kooly v. State                          , 958 P.2d 1106, 1108 (Alaska 1998) ("Determining whether a duty exists                                                                                                                         

in the type of case presented is the first analytical step in deciding whether a negligence                                                                                                                             

action can be maintained.").                                                       



                                                                                                                      -57-                                                                                                                7583
  


----------------------- Page 58-----------------------

                                 Trust   Resources   from   substantial   impairment,   waste,   and  

                                 alienation, and to manage such resources prudently and with                                                                              

                                 impartiality   and   loyalty   to  present   generations,   including  

                                 Youth Plaintiffs, and future generations.                                                            



 The plaintiffs in                       Kanuk  made similar requests.                                                We described four of their claims for                                                  



 relief as "of the sort that is within the institutional competence of the judiciary" to decide:                                                                                                   



                                  [A]  declaratory judgment that (1) "the atmosphere is a public                                                                   

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

                                 "has   an   affirmative   fiduciary   obligation   to   protect   and  

                                 preserve" it; (3) the State's duty is "enforceable by citizen                                                                     

                                 beneficiaries of the public trust"; and (4) with regard to the                                                                             

                                 atmosphere,   the   State   "has   failed   to  uphold   its   fiduciary  

                                                               [  ]  

                                 obligation." 5 



 We noted in Kanuk  that "the plaintiffs do make a good case" for their declaratory  

                                                                                                                                                                                        

                                         6      We explained  that the public trust doctrine had  its  roots in  "the  

judgment claim.                                                                                                                                                                                           

                          



 sovereign's authority over management of fish, wildlife and water resources" and that  

                                                                                                                                                                      



 it was now " 'constitutionalized' in Alaska's common use clause, article VIII, section 3,"  

                                                                                                                                                                                                              

                                                                                                                                                            7   We observed that our  

 which reserves these resources "to the people for common use."                                                                                                                                              

                                                                                                                                                



 earlier cases had "described the content of the trust, the State's duty as trustee, and the  

                                                                                                                                                                                                             



public's status as beneficiary - reflecting three of the plaintiffs' claims for declaratory  

                                                                                                                                                                                         



 relief in this case," and that the fourth claim, "[w]hether the State has breached a legal  

                                                                                                                                                                   



                 5               Kanuk,  335  P.3d  at   1099.  



                 6               Id.  at   1101-02.  



                 7               Id.  (quoting  Owsichek  v. State,  Guide  Licensing  &  Control  Bd.,  763  P.2d  



 488,  494  (Alaska   1988)).  



                                                                                                      -58-                                                                                              7583
  


----------------------- Page 59-----------------------

duty," was also "a question we are well equipped to answer - assuming the extent of   



                                                                                                                      8  

the State's duty can be judicially determined in the first place."                                                        



                         But notwithstanding our institutional ability to decide these issues, we  

                                                                                                                                                            



affirmed  dismissal  of  the  requests  for  declaratory  relief  in  Kanuk,  reasoning  that  

                                                                                                                                                          



declaring the plaintiffs' rights in the context of the public trust doctrine "would not  

                                                                                                                                                            



significantly  advance  the  goals  of  'terminat[ing]  and  afford[ing]  relief  from  the  

                                                                                                                                                           



uncertainty, insecurity, and controversy giving rise to the proceeding' and would thus  

                                                                                                                                                          

fail to serve the principal prudential goals of declaratory relief."9   We further explained:  

                                                                                                                                                                    



"Within the very general framework of a public trust, 'the rights and obligations of [the]  

                                                                                                                                                          



litigants' with regard to the atmosphere would depend on further developments -by the  

                                                                                                                                                             



legislature,  by  executive  branch  agencies,  and  through  litigation  focused  on  more  

                                                                                                                                                        

immediate controversies."10  

                      



                         The  plaintiffs  here  contend  that  they  have  presented  us  with  a  "more  

                                                                                                                                                      



immediate controvers[y]" based on their challenge to the codified State Energy Policy,  

                                                                                                                                                     



AS 44.99.115(2)(B). The court decides that we should reach the same conclusion we did  

                                                                                                                                                            



in Kanuk and again, prudentially, reject all the plaintiffs' claims for declaratory relief as  

                                                                                                                                                              



unlikely to resolve anything. I agree with the court that this conclusion is consistent with  

                                                                                                                                                          



Kanuk. A grant of declaratory relief here will not forestall future litigation over the same  

                                                                                                                                                         



or similar issues.  Litigation over the government's role in addressing climate change is  

                                                                                                                                                               



still  in  its  infancy,  and  more  challenges  to  state  action  based  on  its  potential  for  

                                                                                                                                                            



worsening the crisis are not just likely but certain, regardless of how we resolve this case.  

                                                                                                                                                         



             8           Id.  at 1099-1100.   



             9           Id.  at 1102 (quoting                 Lowell v. Hayes               , 117 P.3d 745, 755 (Alaska 2005)).                   



             10          Id.  at 1103.   



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----------------------- Page 60-----------------------

                              But I am no longer convinced that nothing can be gained by clarifying                                                                       



Alaskans' constitutional rights and the State's corresponding duties in the context of                                                                                                     



climate change.                      When considering the value of declaratory relief, the proliferation of                                                                                 



climate-change   litigation   cuts   both   ways.     On   the   one   hand,   as   the   court   cogently  



explains today, it means that any decision we make here cannot "terminate and afford                                                                                              

relief from the uncertainty, insecurity, and controversy giving rise to the proceeding,"                                                                                                     11  



the consideration we found most compelling in Kanuk. But because prudential concerns  

                                                                                                                                                                             



such as "practicality and wise judicial administration" also guide our use of declaratory  

                                                                                                                                                                       

relief,12   we  may  conclude  that  it  is  an  appropriate  remedy  even  when  terminating  

                                                                                                                                                                      

controversy is not possible.13  

                                          



                              Undoubtedly, Alaskans who bring futurechallengesto stateactions alleged  

                                                                                                                                                                                 



to pose an unacceptable risk to the climate will continue to assert that a livable climate  

                                                                                                                                                                                



is a constitutional right. Appellate courts like ours have almost always avoided the issue  

                                                                                                                                                                                     



on standing, justiciability, or prudential grounds; havedecided that the constitution gives  

                                                                                                                                                                                     

                                                                        14   We decided in Kanuk that the plaintiffs had standing  

no such right; or have done both.                                                                                                                                             

                                                             



               11             Op.  at  44  (quoting  Lowell,   117  P.3d  at  755).  



               12            Kanuk,  335  P.3d  at   1101  (quoting  Lowell,   117  P.3d  at  756).  



               13             As  the  court  observes,  prudential  doctrines,  by  their  very  nature,  allow  for  



case-by-case  determination  rather  than  adherence  to  bright-line  rules.   Op.  at  42  n.118.   



               14             See  Juliana  v.   United  States,  947  F.3d   1159,   1164  (9th  Cir.  2020)  ("The  



central  issue  before  us  is  whether,  even  assuming  such  a  broad  constitutional  right  [to  a  

'climate  system capable  of  sustaining  human  life']  exists,  an  Article  III  court  can  provide  

the  plaintiffs  the  redress  they   seek   .   .   .   .   ");  Clean Air   Council   v.   United  States,   362  

F.  Supp.  3d  237,  244-53  (E.D.  Pa.  2019) (dismissing  complaint  for  lack  of  Article  III  

standing  but  also  finding  no  constitutional  basis for  claims  to  "life-sustaining  climate  

system").   



                                                                                           -60-                                                                                      7583
  


----------------------- Page 61-----------------------

to assert their claims and that their claims for declaratory relief were justiciable.                                                                                                                                                 15  But  



we have yet to say explicitly whether such claims have a basis in the Alaska Constitution.                                                                                                                          



                                       This same important question is before us for the second time in six years.                                                                                                                                          



It has been thoroughly briefed by committed parties and three groups of amici.                                                                                                                                                            Our  



failure to answer the question now will not eliminate it but will only postpone our                                                                                                                                                           



answer, in the meantime putting the burden of redundantly litigating it on plaintiffs, the                                                                                                                                                      



State, and the trial courts, potentially to return to us on appeal again and again until we                                                                                                                                                     



conclude that prudence finally requires an answer.                                                                                                   Given the urgency of the issue, I                                                                



would conclude that "practicality and wise judicial administration" militate strongly in                                                                                                                                                           



favor   of   limited   declaratory   relief   identifying   the   constitutional   source   of   the   right  

plaintiffs claim.                             16  



                   B.	                 The Public Trust Doctrine As "Constitutionalized" In Article VIII  

                                                                                                                                                                                                                                          

                                       Provides A Right To A Livable Climate.  

                                                                                                                                       



                                       The plaintiffs' amended complaint asked for a declaratory judgment that  

                                                                                                                                                                                                                                              



the Alaska Constitution recognizes the right to a climate system that is healthy enough  

                                                                                                                                                                                                                                   



to "sustain human life, liberty, and dignity."   I agree that it does.   And I am not as  

                                                                                                                                                                                                                                                  



stymied as the court is today by the inability to predict the course of future climate  

                                                                                                                                                                                                                                   



litigation.  As is true with every constitutional right, case law will continue to define the  

                                                                                                                                                                                                                                                



right further in the context of more specific controversies - including the extent to  

                                                                                                                                                                                                                                                   



which  it  includes  individuals'  interests  in  "safely  rais[ing]  families,  learn[ing]  and  

                                                                                                                                                                                                                                             



                   15	                Kanuk, 335 P.3d at 1092-1100.                            



                   16  

                                                                                                                                                                                                                                          

                                      See  Chernaik  v.  Brown,  475  P.3d  68,  84  (Or.  2020)  (Walters,  C.J.,  

                                                                                                                                                                                                                                  

dissenting) (asserting that "the time is now" for court to "determine the law that governs  

                                                                                                                                                                                                                                   

the other two branches as they undertake their essential work" of addressing climate  

                                                                                                                                                                                                                                                  

change and that "[t]his court can and should issue a declaration that the state has an  

                                                                                                                                                                                                                                       

affirmative fiduciary duty to act reasonably to prevent substantial impairment of public  

                                                   

trust resources").  



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----------------------- Page 62-----------------------

practic[ing]   their   religious   and   spiritual   beliefs,   learn[ing]   and   transmit[ting]   their  



[N]ative cultural traditions and practices, and lead[ing] lives with sufficient access to                                                                                                    



clean air, water, shelter, and food," as the plaintiffs explain their claimed right in the                                                                                          



amended complaint.   Courts have grappled diligently with such unformed concepts as   

                                                17  "substantive due process,"18  and "right of privacy,"19  clarifying  

"fundamental rights,"                                                                                                                                                       



rights and duties a case at a time. That we cannot answer every subsequent question does  

                                                                                                                                                                                       



not mean we should shy away from answering the first.  

                                                                                                                  



                              The  plaintiffs  identify  a  number  of  possible  sources  for  their  claimed  

                                                                                                                                                                               



constitutional right to a healthy climate system.  They contend that the State's energy  

                                                                                                                                                                                  



policy, by causing and contributing to climate change, violates their substantive due  

                                                                                                                                                                                         



process rights under article I, section 7; their equal protection rights under article I,  

                                                                                                                                                                                             



section 1; and their "public trust rights" under article VIII.  

                                                                                                                        



                              The plaintiffs' substantive due process claims, though well reasoned, have  

                                                                                                                                                                                       



minimal support in existing case law.  They rely heavily on United States District Judge  

                                                                                                                                                                                    



               17             See,  e.g.,  In re Tammy J.                             , 270 P.3d 805, 813 (Alaska 2012) (identifying                                   



"personaldecisionsrelating to marriage, procreation,                                                                contraception,family relationships,              

child rearing, and education" as among the fundamental rights protected by substantive                                                                                  

due process (quoting                            Lawrence v. Texas                         , 539 U.S. 558, 573-74 (2003))).                     



               18             See, e.g., id.; Doe v. Dep't of Pub. Safety, 444 P.3d 116, 125 (Alaska 2019)  

                                                                                                                                                                                    

("Substantive due process is a doctrine that is meant to guard against unfair, irrational,  

                                                                                                                                                                           

or arbitrary state conduct that 'shock[s] the universal sense of justice.' " (alteration in  

                                                                                                                                                                                             

original) (quoting Church v. State, Dep't of Rev., 973 P.2d 1125, 1130 (Alaska 1999))).  

                                                                                                                                                                               



               19             See, e.g., Griswold v. Connecticut, 381 U.S. 479, 486 (1965) (recognizing  

                                                                                                                                                                     

"the zone of privacy created by several fundamental constitutional guarantees").   In  

                                                                                                                                                                                           

Alaska, of course, the constitutional right of privacy is explicit.  Alaska Const. art. I,  

                                                                                                                                                                                     

 22.  

     



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                                                                       20  

Aiken's decision in             Juliana v. United States                   that public trust claims brought under              



federal   law   were   enforceable   as   substantive   due   process   claims   under   the   Fifth  

                                                       21                                             22   The Ninth Circuit  

                                                           and the Ninth Amendment.                                

Amendment's Due Process Clause                                                     



reversed the district court's decision on standing grounds while assuming the existence  

                                                                                                                          

of the constitutional right;23 District Judge Staton, sitting on the panel by designation and  

                                                                                                                                   



writing in dissent, located the constitutional right at issue not in substantive due process  

                                                                                                                             



bur  rather  in  the  "perpetuity  principle"  that  "is  structural  and  implicit  in  our  

                                                                                                                                  



constitutional system":  that is, a principle "that the Constitution does not condone the  

                                                                                                                                    

Nation's willful destruction."24  

                           

                     Theserecent constitutionalinterpretations arenovel and provocative.25  But  

                                                                                                                                    



in Alaska there is a more obvious source of the right at issue in article VIII, which is  

                                                                                                                                      



devoted entirely to defining thepeople's rights inthedevelopment,conservation, anduse  

                                                                                                                                    



of our natural resources and environment.  

                                              



           20        217 F. Supp.  3d 1224, 1260-61 (D. Or. 2016), rev'd, 947 F.3d 1159 (9th  



Cir.  2020).  



           21        "No  person  shall . . .  be  deprived  of  life,  liberty,  or  property,  without  due  



process  of  law."  



           22        "The  enumeration  in  the  Constitution,  of  certain  rights,  shall  not  be  

                                                                                                                                    

construed to deny or disparage others retained by the people."  

                                                                                     



           23        Juliana, 947 F.3d at 1169-70.  

                                                       



           24        Id. at 1175, 1177-79 (Staton, J., dissenting).  

                                                                         



           25        See, e.g., Scott Novak, The Role of Courts in Remedying Climate Chaos:  

                                                                                                                                          

Transcending Judicial Nihilism and Taking Survival Seriously, 32 GEO.  ENV .  L.  REV.  

                                                                                                           

743  (2020);  Bradford  C.  Monk,  Does  the  Evolving  Concept  of  Due  Process  in  Obergefell  

Justify  Judicial  Regulation   of   Greenhouse   Gases   and   Climate   Change?:    Juliana   v.  

                                       AVIS  L.  REV.  855  (2018).  

United  States,  52  U.C. D 



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                        We   addressed   article   VIII   in   Kanuk   in   the   context   of   the   public   trust  



doctrine; the plaintiffs had asked us to declare that the atmosphere was a public trust                                                           



                                                                                              26 

                                                                                                                  

resource the State had an affirmative duty to protect.                                            We did not find it necessary to  



                                                                                                                                                     

answer that question.  We observed that "if the plaintiffs are able to allege claims for  



                                                                                         

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



                                                                                                                                                    

they appear to have a basis on which to proceed even absent a declaration that the  



                                                                                        27  

                                                                                                                                                    

atmosphere is subject to the public trust doctrine."                                         Because the various aspects of our  



                                                                                                                                                  

ecosystem are interdependent, "[a]llegations that the State has breached its duties with  



                                                                                                                                            

regard to the management of" individual resources "such as water, shorelines, wildlife,  



                                                                                                                                                 

and  fish"  -  which  we  have  already  recognized  as  subject  to  the  public  trust  



                                                                                                                                        28  

                                                                                                                                             Simply  

doctrine - "do not depend on a declaratory judgment about the atmosphere." 



                                                                                                                                               

put, the public trust doctrine is implicated by allegations that a particular State action  



                                                                                                                                                   

exacerbates  the  climate  crisis  and  thereby  harms  "water,  shorelines,  wildlife,  and  



                                                                    

fish" - as the plaintiffs have alleged here.  



                                                                                                                                                        

                        By making those allegations, the plaintiffs plainly seek vindication of a  



                                                                                                                                   

constitutional right.  Article VIII emphasizes the importance of resource development  



                                                                                                                                                    

but also the importance of environmental stewardship.  Article VIII, section 2, says that  



                                                                                                                                                      

"[t]he legislature shall provide for the utilization, development, and conservation of all  



                                                                                                                                         

natural resources belonging to the State, including land and waters, for the maximum  



                                                                                                                                                            

benefit of its people."  (Emphasis added.)  Section 3 states the "common use" principle:  



                                                                                                                                                     

"Wherever occurring in their natural state, fish, wildlife, and waters are reserved to the  



                                                                                                                                               

people for common use."  Section 4 articulates the "sustained yield" principle:  "Fish,  



            26          Kanuk v. State, Dep't of Nat. Res.                          , 335 P.3d 1088, 1099 (Alaska 2014).                    



            27         Id.  at 1103.           



            28         Id.   



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----------------------- Page 65-----------------------

forests, wildlife, grasslands, and all other replenishable resources belonging to the State                                                                                                                                                      



shall be utilized, developed, and maintained on the sustained yield principle, subject to                                                                                                                                                                 



preferences amongbeneficialuses." Interpreting                                                                                                theseprovisions,                                  wehaveobserved                                      that  



"[a]rticle VIII requires that natural resources be managed for the benefit of all people,  



under the assumption that both development and preservation may be necessary to                                                                                                                                                                          



provide for future generations, and that income generation is not the sole purpose of the                                                                                                                                                              

                                                         29        And as article VIII was described to the voters at the time of  

trust relationship."                                                                                                                                                                                                                                     



 Statehood, its "primary purpose is to balance maximum use of natural resources with  

                                                                                                                                                                                                                                                  



their continued availability to future generations.   In keeping with that purpose, all  

                                                                                                                                                                                                                                                        



replenishable resources are to be administered, insofar as practicable, on the sustained  

                                                                                          

yield principle."30                                       As we pointed out in Kanuk, the legislature has recognized these  

                                                                                                                                                                                                                                                



principles in declaring it "the policy of the state . . . to manage the basic resources of  

                                                                                                                                                                                                                          



water, land, and air to the end that the state may fulfill its responsibility as trustee of the  

                                                                                                                                                                                                                                                       

                                                                                                                                                           31   Allegations that climate change  

environment for the present and future generations."                                                                                                                                                                                       

                                                                                                                    



destroys natural resources or even limits their continuing availability for present and  

                                                                                                                                                                                                                                                    



                    29                 Brooks v. Wright                                   , 971 P.2d 1025, 1032 (Alaska 1999);                                                                           see also Owsichek         



v.  State, 763 P.2d 488, 495 (Alaska 1988) (noting that "the common use clause impose[s]                                                                                                                                           

upon the state a trust duty to manage the fish, wildlife and water resources of the state                      

for the benefit of                                 all  the people" (emphasis added)).                                           



                    30                  Cook Inlet Fisherman's Fund v. State, Dep't of Fish & Game, 357 P.3d  

                                                                                                                                                                                                                                                  

789, 803 (Alaska 2015) (emphasis in original) (quoting West v. State, Bd. of Game, 248  

                                                                                                                                                                                                                                                     

P.3d 689, 696 (Alaska 2010) (quoting THE   ALASKA   CONSTITUTIONAL   CONVENTION,  

                                                                                                                      

    ROPOSED  CONSTITUTION FOR THE  STATE OF ALASKA:  A REPORT TO THE PEOPLE OF  

P                                                                                                                                                                                                                                                       

ALASKA (1956))).  

                           



                    31                  335 P.3d at 1102 n.78 (emphasis in original).                                                             



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future   generations   clearly   implicate   the   State's   stewardship   responsibilities   under  

article VIII.         32  



                         The court today takes a very narrow view of both the rights granted by  

                                                                                                                                                               



article  VIII  and  our  role  in  protecting  those  rights.                                               The  court  is  concerned  that  

                                                                                                                                                            



recognizing an individual right to a livable climate would impinge on the legislative  

                                                                                                                                                

prerogative to manage the State's natural resources for the benefit of all Alaskans.33   But  

                                                                                                                                                             



the Constitution recognizes individual Alaskans' rights vis-á-vis the State and their  

                                                                                                                                                           

fellow citizens in a number of different contexts.34  The judiciary acts within its delegated  

                                                                                                                                                  



role when it concludes that the legislature, despite its broad article VIII powers, has  

                                                                                                                                                             



             32          See Sanders-Reed v. Martinez                            , 350 P.3d 1221, 1225 (N.M. 2015) (holding                          



that    state    constitutional    provision    declaring    importance    of    state's    environment  

"recognizes that a public trust duty exists for the protection of New Mexico's natural                                                                 

resources, including the atmosphere, for the benefit of the people of this state").                                                       



             33          Op. at 36.  

                                       



             34          See Alaska Const. art. VIII,  11 (stating how mineral claimants discover  

                                                                                                                                                    

and appropriate mineral rights); id. at  14 (providing that access to navigable waters  

                                                                                                                                                       

"shall not be denied to any citizen of the United States or resident of the State"); id. at  

                                                                                                                                                                

 16 (providing that "[n]o person shall be involuntarily divested of" rights in natural  

                                                                                                                                                      

resources without just compensation and operation of law); id. at  17 (providing that  

                                                                                                                                                             

natural resource laws "apply equally to all persons similarly situated");  id.  at  18  

                                                                                                                                                              

(authorizing "[p]roceedings in eminent domain . . . for private ways of necessity"); see  

                                                                                                                                                              

also Owsichek, 763 P.2d at 492 n.10 ("Since the right of common use is guaranteed  

                                                                                                                                               

expressly by the constitution, it must be viewed as a highly important interest running  

                                                                                                                                                     

to each person within the state." (emphasis added) (quoting with approval State v.  

                                                                                                                                                                

Ostrosky, 667 P.2d 1184, 1196 (Alaska 1983) (Rabinowitz, J., dissenting))).  

                                                                                                                                                   



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----------------------- Page 67-----------------------

                                                                                                     35                                                                      36  

violated individual Alaskans' article VIII rights.                                                        And as the court acknowledges,                                         we  



also act within our delegated role when we determine that an agency, despite having                                                                                      

                                                                                                                       37  has reached a decision that  

taken the requisite "hard look at the salient problems,"                                                                                                                       



infringes a constitutional right.  We cannot exercise that oversight effectively without  

                                                                                                                                                                       



first defining the individual rights that may be implicated.  

                                                                                                    



                            Recognizing a right to a livable climate does not mean that the right is  

                                                                                                                                                                                    



violated whenever the legislature declares a resource development policy that harms the  

                                                                                                                                                                                 



climate, or whenever an executive agency implements such a policy. Even fundamental  

                                                                                                                                                             

rights are not absolute but must be "balanced against conflicting rights and interests,"38  

                                                                                                                                                               



which  will  often  encompass  policy  judgments  we  are  not  equipped  to  make.                                                                                            But  

                                                                                                                                                                               



Alaska's courts do have the experience and expertise required to weigh the effect of  

                                                                                                                                                                                   



              35            See McDowell v. State                            , 785 P.2d 1, 4-11 (Alaska 1989) (striking down                                               



statute establishing rural preference for subsistence hunting and fishing as violating                                                                              

article VIII,  3, 15, and 17).                        



              36            Op. at 16-18.  

                                           



              37            See Alpine Energy, LLC v. Matanuska Elec. Ass'n, 369 P.3d 245, 251  

                                                                                                                                                                               

(Alaska 2016); Op. at 17.  

                                                



              38            Larson v. State, Dep't of Corr., Bd. of Parole, 476 P.3d 293, 301 n.55  

                                                                                                                                                                              

(Alaska 2020) (" 'The right to privacy is not absolute' but is balanced against conflicting  

                                                                                                                                                                 

rights and interests." (quoting Jones v. Jennings, 788 P.2d 732, 738 (Alaska 1990)));  

                                                                                                                                                                     

Planned Parenthood of the Great Nw. v. State, 375 P.3d 1122, 1163 n.52 (Stowers, J.,  

                                                                                                                                                                                   

dissenting) (Alaska 2016) ("Where a compelling state interest is shown, the right [to  

                                                                                                                                                                                 

privacy] may be held to be subordinate to express constitutional powers such as the  

                                                                                                                                                                                 

authorization of the legislature to promote and protect public health and provide for the  

                                                                                                                                                                                 

general welfare." (quoting Gray v. State, 525 P.2d 524, 528 (Alaska 1974))); Breese v.  

                                                                                                                                                                                    

Smith, 501 P.2d 159, 168-69 (Alaska 1972) (Although student's choice of hairstyle is  

                                                                                                                                                                                    

protected by "a fundamental constitutional right implicit in the concept of liberty as  

                                                                                                                                                                                   

guaranteed by the constitution of Alaska, we do not hold that such right is absolute. . . .  

                                                                                                                                                                                         

 [Personal freedoms] 'must yield  when they  intrude upon the freedom of others.'  "  

                                                                                                                                                                                    

(quoting Bishop v. Colaw, 450 F.2d 1069, 1075 (8th Cir. 1971))).  

                                                                                                                          



                                                                                       -67-                                                                                  7583
  


----------------------- Page 68-----------------------

                                                                                                                                                                                         39  

 specific government action on individual rights.                                                                                                                                               And defining those rights is part of                                                                                              



 our task.                           As recently summarized by Chief Justice Walters of the Oregon Supreme                                                                                                                                                                                             



 Court: "How to address climate change is a daunting question with which the legislative                                                                                                                                                                                                            



 and executive branches of our state government must grapple.                                                                                                                                                                               But that does not relieve                                           

 our branch of its obligation to determine what the law requires."                                                                                                                                                                                    40  



                                                    In my view, the law requires that the State, in pursuing its energy policy,  

                                                                            



 recognize individual Alaskans' constitutional right to a livable climate.  A declaratory  

                                                                                                                                                                                                     



judgment to that effect would be an admittedly small step in the daunting project of  

                                                                                                                                                                                                                                                                                                                                 



 focusing governmental response to this existential crisis.  But it is a step we can and  

                                                                                                                                                                                                                                                                                                                           



 should take.  For that reason I respectfully dissent.  

                                                                                                                                                                    



                          39                        See, e.g.,  Ellingson v. Lloyd                                                                             , 342 P.3d 825, 831 (Alaska 2014) (deciding                                                                  



 that Board of Game failed to adequately consider facts and inconsistency with other laws                                                                                                                                                                                                                                

 when adopting regulation defining when domestic animal becomes "feral" for game                                                                                                                                                                                                                                    

 purposes);  State,   Bd.   of   Fisheries   v.   Grunert,   139   P.3d   1226,   1240   (Alaska   2006)  

 (striking down emergency regulation allocating harvestable salmon as inconsistent with                                                                                                                                                                                                                                  

 Limited Entry Act);                                                          Cook Inlet Keeper v. State, Off. of Mgmt. & Budget                                                                                                                                                     , 46 P.3d 957,   

 965-66   (Alaska   2002)  (holding   that   State's   review   of   offshore   exploratory   drilling  

 platform was deficient because it failed to consider discharges already permitted under                                                                                                                                                                                                                            

 federal law).                                     



                          40                        Chernaik v. Brown, 475 P.3d 68, 93 (Or. 2020) (Walters, C.J., dissenting).  

                                                                                                                                                                                                                                                                                              



                                                                                                                                                              -68-                                                                                                                                                      7583
  

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