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Brooks v. Wright (1/15/99), 971 P 2d 1025
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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.
THE SUPREME COURT OF THE STATE OF ALASKA
JAMES W. BROOKS, former )
Commissioner of the Alaska ) Supreme Court No. S-8676
Department of Fish and Game, )
JOEL BENNETT, former member ) Superior Court No.
of the Alaska Board of Game, ) 4FA-97-879 CI
and WOLF MANAGEMENT REFORM )
COALITION, ) O P I N I O N
)
Appellants, ) [No. 5066 - January 15, 1999]
)
v. )
)
PATRICK WRIGHT, ALBERT W. )
FRANZMANN, ALASKA FISH AND )
WILDLIFE CONSERVATION FUND, )
and SCIENTIFIC MANAGEMENT OF )
ALASKA'S RESOURCE TREASURES, )
)
Appellees. )
______________________________)
)
STATE OF ALASKA, OFFICE OF ) Supreme Court No. S-8685
THE GOVERNOR OF THE STATE OF )
ALASKA, LIEUTENANT GOVERNOR ) Superior Court No.
FRAN ULMER, ) 4FA-97-2337 CI
)
Appellant, )
)
v. )
)
PATRICK WRIGHT, ALBERT W. )
FRANZMANN, ALASKA FISH AND )
WILDLIFE CONSERVATION FUND, )
and SCIENTIFIC MANAGEMENT OF )
ALASKA'S RESOURCE TREASURES, )
)
Appellees. )
______________________________)
Appeals from the Superior Court of the State
of Alaska, Fourth Judicial District, Fairbanks,
Ralph R. Beistline, Judge.
Appearances: Douglas Pope, Pope & Katcher,
Anchorage, for Appellants James Brooks, Joel Bennett and Wolf
Management Reform Coalition. Kathleen Strasbaugh, Assistant
Attorney General, and Bruce M. Botelho, Attorney General, Juneau,
for Appellant State of Alaska. Arthur S. Robinson, Robinson,
Beiswenger & Ehrhardt, Soldotna, and Brent Cole, Marston & Cole,
P.C., Anchorage, for Appellees. James N. Reeves, Bogle & Gates,
P.L.L.C., Anchorage, for Amicus Curiae Alaska Wildlife Alliance.
Before: Matthews, Chief Justice, Compton,
Eastaugh, Fabe, and Bryner, Justices.
FABE, Justice.
I. INTRODUCTION
Various citizens and community organizations sought to
remove from the ballot an initiative prohibiting use of snares to
trap wolves. The superior court agreed to decertify the
initiative, reasoning that the initiative process is "clearly
inapplicable"to natural resource management under Article XII of
the Alaska Constitution because the state's role as "trustee"over
natural resources gives it exclusive law-making powers over natural
resource issues. After concluding that the prohibition of wolf
snare traps is an appropriate subject for initiative, we reversed
the superior court's order and placed the initiative back on the
November 1998 general election ballot, announcing that an opinion
would follow. Voters rejected the initiative in the November 1998
general election.
II. FACTS AND PROCEEDINGS
In October 1997 Lieutenant Governor Fran Ulmer certified
a ballot initiative which, if passed, would criminalize both the
use of snares to trap wolves and the possession, sale, or purchase
of wolf pelts known to have been taken by snare. The initiative,
titled "An Act Relating to the Use of Snares in Trapping Wolves,"
reads in full:
BE IT ENACTED BY THE PEOPLE OF THE STATE OF
ALASKA:
AS 16.05 is amended by adding a new section to
read:
Section 16.05.784. PROHIBITED METHODS OF
TRAPPING WOLVES.
(a) A person may not use a snare with the
intent of trapping a wolf.
(b) A person may not possess, purchase, offer
to purchase, sell, or offer to sell the skin of a wolf known by the
person to have been caught with a snare.
(c) A person who violates this section is
guilty of a Class A misdemeanor.
One month later, a group of two citizens and two
community organizations (Wright) [Fn. 1] filed suit against the
State challenging the constitutionality of the initiative. Wright
argued that, by virtue of the state's role as trustee over Alaska's
natural resources under Article VIII, the legislature has exclusive
law-making power with respect to wildlife management issues.
Wright had filed a previous suit against the State
challenging a separate initiative that prohibited same-day airborne
hunting of certain wildlife. Several proponents of the airborne
hunting initiative (Brooks) [Fn. 2] intervened in that suit.
Brooks also filed briefs in this appeal. In December 1997 Superior
Court Judge Ralph R. Beistline consolidated the wolf snare suit
with the airborne hunting suit.
Although Judge Beistline ruled that the challenge to the
airborne hunting initiative was untimely because the initiative had
already become law, he barred placement of the wolf snare
initiative on the 1998 general election ballot. Relying on Justice
Compton's concurrence in Pullen v. Ulmer, [Fn. 3] Judge Beistline
reasoned:
It would be inappropriate to dictate to the
legislature the method or tool it should use to manage wildlife.
The effect of such restrictions would be to infringe upon the
legislature's exclusive right to manage wildlife resources and
would compromise the legislature's ability to fulfill its trust
obligation to preserve Alaska's fish and wildlife for the common
use of all Alaskans.
The State appealed the superior court's ruling on the
wolf snare initiative. On June 2, 1998, we issued an order to
expedite the appeal. On August 17, 1998, after hearing oral
arguments in the case, we reversed the superior court's ruling and
vacated the injunction, thereby placing the wolf snare initiative
back on the ballot. We stated in our order that an opinion of the
court would follow. In the November general election the voters
rejected the initiative.
III. STANDARD OF REVIEW
This appeal centers around the constitutionality of using
the initiative process to prohibit wolf snare traps. We review
such questions of law de novo, applying our independent judgment
and "adopt[ing] the rule of law which is most persuasive in light
of precedent, reason, and policy."[Fn. 4]
When reviewing initiative challenges, we liberally
construe constitutional provisions that apply to the initiative
process. [Fn. 5] Specifically, we narrowly interpret the subject
matter limitations that the Alaska Constitution places on
initiatives. [Fn. 6] Still, we have a duty to give questions
involving the propriety of an initiative's subject matter "careful
consideration because the constitutional right of direct
legislation is [also] limited by the Alaska Constitution."[Fn. 7]
Pre-election review of challenges to ballot initiatives
is limited to ascertaining "whether [the initiative] complies with
the particular constitutional and statutory provisions regulating
initiatives."[Fn. 8] But "[g]eneral contentions that the
provisions of an initiative are unconstitutional are justiciable
only after the initiative has been enacted by the electorate."[Fn.
9] Hence, our review of the initiative at this stage is limited to
whether the subject matter is constitutionally permissible.
IV. DISCUSSION
Articles XI and XII are the only provisions of the Alaska
Constitution that explicitly mention the initiative process.
Article XII describes when the people of Alaska may use the
initiative to propose and pass legislation:
LAW-MAKING POWER. . . . Unless clearly
inapplicable, the law-making powers assigned to the legislature may
be exercised by the people through the initiative, subject to the
limitations of Article XI.[ [Fn. 10]]
In turn, Article XI imposes certain subject matter restrictions on
initiatives:
SECTION 7. RESTRICTIONS. The initiative shall
not be used to dedicate revenues, make or repeal appropriations,
create courts, define the jurisdiction of courts or prescribe their
rules, or enact local or special legislation.[ [Fn. 11]]
Wright does not claim on appeal that the wolf snare
initiative falls within one of the enumerated Article XI
limitations. [Fn. 12] Rather, he only argues that, under Article
XII, the initiative process is "clearly inapplicable"to natural
resource management decisions because of the state's role as
trustee over wildlife and other natural resources. We first
discuss whether wildlife management is "clearly inapplicable"to
the initiative process based on the language and framers'
understanding of Articles XI and XII. We then address whether the
state's trustee-like duty set forth in Article VIII implies that
the public may not propose initiatives relating to wildlife
management.
A. Whether Wildlife Management Is "Clearly Inapplicable"to
the Initiative Process Based on the Language and History of
Articles XI and XII
To determine whether the subject matter of wildlife
management is clearly inapplicable to the initiative process, we
look first to the language and history of the constitutional
provisions regarding the initiative process.
We apply basic rules of statutory construction when
interpreting the Alaska Constitution. [Fn. 13] When construing
constitutional provisions, we use our independent judgment,
"adopting a reasonable practical interpretation in accordance with
common sense based upon the plain meaning and purpose of the
provision[s] and the intent of the framers."[Fn. 14] We also
"look to the meaning that the voters would have placed on [the]
provision."[Fn. 15] Although the restrictions included in Article
XI are relatively straightforward and easy to decipher, the meaning
of the phrase "clearly inapplicable"in Article XII is less
obvious. We therefore look to the intent of the framers for
guidance in interpreting the provision.
The debates about the initiative process at the Alaska
Constitutional Convention make clear the framers' understanding of
the phrase "clearly inapplicable"in Article XII. During the
discussion of what is now Article XII, sec. 11, Delegate George
McLaughlin, chair of the Judiciary Committee and author of the
proposed language, explained that use of the phrase "the
legislature"in an article marked the delegates' intent to make the
article subject to the initiative process as well:
What do I mean here by "unless clearly
inapplicable"? . . . Certainly we wouldn't intend, where you read
in the article on the judiciary that the supreme court may adopt
rules which may be, in substance, disapproved by two-thirds of each
house of the legislature, because it was obviously meant from that
context that that couldn't be subject to the initiative, and so we
are clearly indicating here that where we use the expression "by
the legislature"or the expression "the legislature"we mean
completely, thoroughly, and wholeheartedly know that it is subject
not only to the initiative but to the referendum, and where it is
clearly inapplicable, even 55 idiots would agree that it was
inapplicable.[ [Fn. 16]]
The convention adopted McLaughlin's proposed language shortly after
he gave this speech. [Fn. 17]
Delegate Victor Fischer, in response to a motion to make
"the legislature"signify exclusively the legislature, argued that
such an interpretation would leave "hidden meanings"in the
constitution that would limit the people's legitimate use of the
initiative:
I don't think it is right for us as an
afterthought to start going through the whole constitution and add
additional items that are not subject to the initiative. . . . If
you believe that certain items should be exempted let's put them
into Section 5 of Article 3 [later renumbered as art. XI, sec. 7]
and
specifically exempt them from the initiative instead of going
through each article, section by section, and by hidden meanings
prevent the people from exercising the initiative.[ [Fn. 18]]
Shortly after Fischer's speech, the motion to narrow the intended
meaning of the term "the legislature"was defeated by a 2-1 margin.
[Fn. 19]
The framers chose to use the phrase "the legislature"in
Article VIII, which concerns natural resource management:
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.[ [Fn. 20]]
Such language evidences the delegates' intent that natural resource
issues would be subject to the initiative. Indeed, unlike the
Judiciary Committee, [Fn. 21] the Resources Committee made no
effort to have the subject matter of Article VIII excluded from the
initiative process. If we were to grant the legislature an
exclusive right to propose wildlife legislation based on the
state's role as "trustee"over wildlife under Article VIII, we
would be relying on the very hidden meanings against which Fischer
warned and that the delegates at the constitutional convention
squarely rejected.
Even if Article VIII had not contained the words "the
legislature,"the subject of wildlife management is not so clearly
inapplicable to the initiative process as to pass Delegate
McLaughlin's "55 idiot"test. The convention debates suggest the
framers added "clearly inapplicable"to Article XII so that the
initiative would not replace the legislature where the
legislature's power serves as a check on other branches of
government, such as legislative power to define courts'
jurisdiction or override judicial rules. [Fn. 22] This separation-
of-powers concern does not exist with respect to natural resource
issues under Article VIII. Hence, the debates do not support an
interpretation of Article XII that would grant the legislature
exclusive law-making powers over natural resource management on the
grounds that such subject matter is "clearly inapplicable"to the
initiative process.
Wright argues that natural resources issues are
"sensitive and sophisticated"in Alaska, and therefore should be
free from the "impulsive enactment of laws by the general public."
He points to resolutions passed by the legislature and Game Board
endorsing snare trapping as evidence that the initiative is ill-
conceived. We agree with Wright that such issues are sensitive and
complex; indeed, "public policy stakes are usually high"in
initiative law. [Fn. 23] But the framers of the constitution chose
to include the initiative process as a law-making tool with full
knowledge of the risks inherent to direct democracy. [Fn. 24] And
the public's disagreement with legislative and administrative
officials can just as easily be taken as evidence of the
appropriate use of the initiative process. Additionally,
safeguards exist in the process, allowing the legislature to repeal
initiated legislation after two years and to amend such legislation
at any time. [Fn. 25] Concerned parties can also bring a post-
election substantive challenge to what they may believe is an ill-
advised law. As the Alaska Wildlife Alliance (AWA) points out, if
any specific initiated law is "constitutionally infirm,"it can be
invalidated on that basis. [Fn. 26]
Finally, the delegates' decision to submit Ordinance 3,
which banned commercial salmon traps, for voter ratification along
with the rest of the constitution evidences the delegates' and
voters' understanding that wildlife management issues would be
subject to direct democracy. The wording of the referendum
submitted to the people emphasized the public's role in the
decision to abolish fish traps:
As a matter of immediate public necessity, to
relieve economic distress among individual fishermen and those
dependent upon them for a livelihood, to conserve the rapidly
dwindling supply of salmon in Alaska, to insure fair competition
among those engaged in commercial fishing, and to make manifest the
will of the people of Alaska, the use of fish traps for the taking
of salmon for commercial purposes is hereby prohibited in all the
coastal waters of the State.[ [Fn. 27]]
Those delegates opposed to submitting the ordinance to the voters
argued that the matter should be resolved by future state
legislative action rather than by popular vote. [Fn. 28] A motion
to this effect was defeated by a 42-12 vote. [Fn. 29] After
ratification, we held that Ordinance 3 was a valid modification of
the territorial laws. [Fn. 30] We viewed Ordinance 3, and by
implication the process through which it was adopted, as being
consistent with the state's management responsibilities for
wildlife and other "property of the state, held in trust."[Fn. 31]
Thus the language and framers' understanding of Articles
XI and XII, along with the chosen wording of Article VIII and the
inclusion of Ordinance 3 for ratification, suggest that natural
resource management is not, as Wright contends, "clearly
inapplicable"to the initiative process.
B. Whether the Legislature Has Exclusive Law-Making Powers
over Wildlife Management by Virtue of the State's Trustee-Like
Duties under Article VIII
Article VIII of the Alaska Constitution concerns the
management of natural resources:
SECTION 3. COMMON USE. Wherever occurring in
their natural state, fish, wildlife, and waters are reserved to the
people for common use.
SECTION 4. SUSTAINED YIELD. Fish, forests,
wildlife, grasslands, and all other replenishable resources
belonging to the State shall be utilized, developed, and maintained
on the sustained yield principle, subject to preferences among
beneficial uses.[ [Fn. 32]]
Wright argues that these clauses establish a "public trust"for
management of the state's wildlife, with the State of Alaska as
"trustee"and the people of Alaska as the intended beneficiaries.
From this premise, Wright further claims that the state, as part of
its fiduciary duty, retains exclusive law-making authority over
natural resource issues. We disagree.
We have frequently compared the state's duties as set
forth in Article VIII to a trust-like relationship in which the
state holds natural resources such as fish, wildlife, and water in
"trust"for the benefit of all Alaskans. [Fn. 33] Instead of
recognizing the creation of a public trust in these clauses per se,
we have noted that "the common use clause was intended to engraft
in our constitution certain trust principles guaranteeing access to
the fish, wildlife and water resources of the state."[Fn. 34]
We have applied the public trust doctrine to cases
involving exclusive grants of natural resources by the state. In
CWC Fisheries, Inc. v. Bunker, [Fn. 35] we held that a holder of a
state-granted fee interest in tidelands takes the land subject to
a public easement. [Fn. 36] We based our holding in part on the
state's public trust responsibilities with respect to tideland
conveyance, [Fn. 37] but did not address whether Article VIII
creates a public trust per se or whether such responsibilities
preclude public participation in natural resource management
decisions. Furthermore, we suggested that expansion of the public
trust doctrine to include all or most public uses merely because it
has been applied to a particular public use would be inappropriate.
[Fn. 38]
A few months after CWC Fisheries, we clarified in
Owsichek v. State, Guide Licensing & Control Board that the purpose
of the public trust doctrine was not to grant the legislature
ultimate authority over natural resource management, but rather to
prevent the state from giving out "exclusive grants or special
privilege as was so frequently the case in ancient royal
tradition."[Fn. 39] Hence, the State of Alaska acts as "trustee"
over wolves and other wildlife not so much to avoid public misuse
of these resources as to avoid the state's improvident use or
conveyance of them.
Indeed, in Owsichek, after a discussion of the holding in
CWC Fisheries, we emphasized that the state's duties with respect
to natural resource management under Article VIII "[are] to be
exercised like all other powers of government, . . . and not as a
prerogative for the advantage of the government as distinct from
the people."[Fn. 40]
Wright relies on a recent case, Baxley v. State, [Fn. 41]
to argue that we should apply basic principles of private trust law
to the trust-like relationship described in Article VIII. In
Baxley, we referred to the public trust doctrine in examining the
propriety of four state oil leases in the Beaufort Sea:
The public trust doctrine provides that the
State holds certain resources (such as wildlife, minerals, and
water rights) in trust for public use and that government owes a
fiduciary duty to manage such resources for the common good of the
public as beneficiary.[ [Fn. 42]]
Although we declined to address in Baxley whether the state had
breached its fiduciary duty, we relied on another case, State v.
Weiss (Weiss I), in noting that we should apply "basic principles
of trust law to public land trusts."[Fn. 43]
But, unlike this case, Weiss I involved the state's duty
as trustee over expressly created special purpose public land
grants and leases. [Fn. 44] In that case we stated:
Our reliance upon basic trust law principles
finds ample support in the precedents of this court and the United
States Supreme Court. See Lassen v. Arizona, 385 U.S. 458, 87 S.
Ct. 584, 17 L. Ed. 2d 515 (1967); State v. University of Alaska,
624 P.2d 807 (Alaska 1981). Both Lassen and University of Alaska
involved federal grants to be used by states for school purposes.
Those cases stand for the proposition "that the same private trust
law principles are to apply to federal land granted to the states
for school purposes."[ [Fn. 45]]
We have since emphasized that the applicability of private trust
law depends greatly on both the type of trust created and the
intent of those creating the trust. In Weiss v. State (Weiss II),
[Fn. 46] involving the same grant lands as in Weiss I, we cautioned
that "reliance [on principles of private trust law] does not imply
that application of such principles yields the same result
regardless of the nature of the trust at issue."[Fn. 47]
Baxley, unlike Weiss I, did not involve an expressly
created public land grant. Rather, Baxley simply relied on Weiss
I to show that, if Baxley had timely raised his public trust
argument in the trial court, then questions of fact and law might
exist as to whether the state breached its fiduciary duty. Wright
relies on dicta in Baxley to argue that private trust law should be
applied wholesale to the public trust doctrine. This result,
however, would be an overbroad interpretation of our holdings in
Baxley and Weiss I.
Moreover, application of private trust principles may be
counterproductive to the goals of the trust relationship in the
context of natural resources. For instance, private trusts
generally require the trustee to maximize economic yield from the
trust property, using reasonable care and skill. [Fn. 48] But
Article 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 trust relationship. [Fn. 49] And although trust law dictates
that the acts of a trustee should be reviewed for abuse of
discretion, we have held that grants of exclusive rights to harvest
natural resources listed in the common use clause are subject to
close scrutiny. [Fn. 50] Private trust law principles also provide
no guidance as to when the public's right to common use of
resources can be limited through means such as licensing
requirements. [Fn. 51] Finally, exceptions do exist to the general
principle that beneficiaries cannot dictate how to manage the trust
property. For example, in some circumstances, the creator may
provide for the beneficiary's participation in trust management,
[Fn. 52] and the beneficiary of a trust may act as trustee. [Fn.
53]
Other jurisdictions have held that, while general
principles of trust law do provide some guidance, they do not
supercede the plain language of statutory and constitutional
provisions when determining the scope of the state's fiduciary duty
or authority. [Fn. 54] One commentator notes that general trust
law should not be applied to the public trust doctrine in a way
that limits or destroys the democratic process: "It would be a
strict violation of democratic principle for the original voters
and legislators of a state to limit, through a trust, the choices
of the voters and legislators of today."[Fn. 55]
We most recently visited the public trust doctrine in the
natural resource context in Pullen v. Ulmer. [Fn. 56] In that
case, we decertified an initiative allowing subsistence, personal
use, and sport fisheries to have preference over other fisheries
with respect to the harvestable salmon surplus. [Fn. 57] We
concluded that salmon should be considered "assets"of the state
for purposes of carrying out the state's trust duties with respect
to wildlife. [Fn. 58] Because state assets may not be appropriated
by initiative pursuant to Article XI, [Fn. 59] and because we
viewed the preferential treatment of certain fisheries over others
as an appropriation, [Fn. 60] we removed the initiative from the
ballot. We left open the question of whether the state's trust
responsibilities under Article VIII give the legislature exclusive
law-making control over wildlife management. [Fn. 61]
We find little support in the public trust line of cases
for the proposition that the common use clause of Article VIII
grants the legislature exclusive power to make laws dealing with
natural resource management. Article VIII does not explicitly
create a public trust; rather, we have used the analogy of a public
trust to describe the nature of the state's duties with respect to
wildlife and other natural resources meant for common use.
Additionally, the wholesale application of private trust law
principles to the trust-like relationship described in Article VIII
is inappropriate and potentially antithetical to the goals of
conservation and universal use. And in Pullen, the only case in
which we discussed the initiative process, we declined to hold that
the public trust doctrine gives the legislature exclusive law-
making authority over the subject matter of Article VIII. We
therefore reject Wright's argument to the contrary and decline to
decertify the initiative on public trust grounds.
For these reasons, we conclude that the legislature does
not have exclusive law-making powers over natural resources issues
merely because of the state's management role over wildlife set
forth in Article VIII of the Alaska Constitution, and therefore the
wolf snare issue is not "clearly inapplicable"to the initiative
process under Article XII.
V. CONCLUSION
Pursuant to this court's August 17, 1998 order, the
superior court's order on summary judgment is REVERSED and its
injunction against placement of the proposed ballot measure, "An
Act Relating to the Use of Snares in Trapping Wolves,"on the
general election ballot is VACATED.
FOOTNOTES
Footnote 1:
The four plaintiff-appellees in this case are: Patrick Wright,
a member of the Anchorage Fish and Game Advisory Committee; Albert
Franzmann, a past member of the Alaska Board of Game; the Alaska
Fish and Wildlife Conservation Fund; and Scientific Management of
Alaska's Resource Treasures (SMART).
Footnote 2:
Intervenor-appellants include James Brooks, a former
commissioner of the Alaska Department of Fish and Game; Joel
Bennett, a former member of the Alaska Board of Game; and the Wolf
Management Reform Coalition.
Footnote 3:
923 P.2d 54, 65-66 (Alaska 1996) (Compton, J., concurring).
Footnote 4:
Ford v. Municipality of Anchorage, 813 P.2d 654, 655
(Alaska 1991) (citing Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska
1979)).
Footnote 5:
See Interior Taxpayers Ass'n, Inc. v. Fairbanks North
Star Borough, 742 P.2d 781, 782 (Alaska 1987).
Footnote 6:
See Citizens' Coalition for Tort Reform v. McAlpine, 810
P.2d 162, 168 (Alaska 1991) ("[T]he law-making powers assigned to
the legislature are to be liberally construed as within the
people's right to legislate by initiative.").
Footnote 7:
Pullen v. Ulmer, 923 P.2d 54, 58 (Alaska 1996) (quoting
Fairbanks v. Convention & Visitors Bureau, 818 P.2d 1153, 1155
(Alaska 1991)).
Footnote 8:
Boucher v. Engstrom, 528 P.2d 456, 460 (Alaska 1974),
overruled in part on other grounds, McAlpine v. University of
Alaska, 762 P.2d 81 (Alaska 1988).
Footnote 9:
Id. at 460 n.13.
Footnote 10:
Alaska Const. art. XII, sec. 11 (emphasis added).
Footnote 11:
Alaska Const. art. XI, sec. 7.
Footnote 12:
At no stage of this case has any party argued that the
wolf snare initiative makes or repeals an appropriation in
violation of Article XI, sec. 7. As Judge Beistline wrote:
[N]or did [the parties] address the issue of
whether or not an initiative addressing methods of wildlife
management or harvest, such as the use of snares, would constitute
an appropriation of state assets . . . .
Indeed, Wright himself acknowledges that:
While an argument can be made that the
establishment of laws involving means and methods of game harvest
may effectively result in an appropriation of state assets, . . .
Wright argues here, as he did in the superior court, that the
subject of the wolf snare initiative is clearly inapplicable . . .
.
The question is therefore not properly before us, and we do not
address it here.
Footnote 13:
See Thomas v. Bailey, 595 P.2d 1, 4 (Alaska 1979).
Footnote 14:
Cissna v. Stout, 931 P.2d 363, 366 (Alaska 1996)
(citation omitted).
Footnote 15:
Division of Elections v. Johnstone, 669 P.2d 537, 539
(Alaska 1983) (citation omitted).
Footnote 16:
See 4 Proceedings of the Alaska Constitutional Convention
(PACC) 2849 (January 21, 1956) (emphasis added).
Footnote 17:
See id. at 2850-51.
Footnote 18:
Id. at 2837 (emphasis added).
Footnote 19:
See id. at 2841.
Footnote 20:
Alaska Const. art. VIII, sec. 2 (emphasis added).
Footnote 21:
See 4 PACC at 2843-46 (January 21, 1956).
Footnote 22:
See, e.g., PACC at 2848-49 (January 21, 1956) (statement
of Del. McLaughlin) (stating that initiative should not be used to
override judicial rules); id. at 2821 (statement of Del. Davis)
(defining the jurisdiction of courts); id. at 2836-37 (statement of
Del. Rivers) (changing fundamental aspects of the judiciary as
defined in the constitution). See also Citizens' Coalition for
Tort Reform v. McAlpine, 810 P.2d 162, 168 (Alaska 1991)
(invalidating an initiative to limit attorney contingency fees
because "[o]nly the law-making powers assigned to the legislature"
are within the right to legislate by initiative).
Footnote 23:
M. Katheryn Bradley & Deborah L. Williams, "Be It Enacted
by the People of the State of Alaska . . ."- A Practitioner's
Guide to Alaska's Initiative Law, 9 Alaska L. Rev. 279, 302 (1992).
Footnote 24:
See Thomas v. Bailey, 595 P.2d 1, 8 (Alaska 1979) ("The
restrictions on permissible subjects for direct legislation
represent a recognition . . . that certain particularly sensitive
or sophisticated areas of legislation should not be exposed to
emotional electoral dialogue and impulsive enactment by the general
public.") (internal citation omitted).
Footnote 25:
See Alaska Const. art. XI, sec. 6.
Footnote 26:
See also Owsichek v. State, Guide Licensing & Control
Bd., 763 P.2d 488, 494-96 (Alaska 1988) (invalidating board's
establishment of guide areas for hunting as violative of Article
VIII's public use clause).
Footnote 27:
Alaska Const. ord. III, sec. 2 (emphasis added).
Footnote 28:
See 5 PACC at 3564-3752 (January 30, 1956).
Footnote 29:
See id. at 3572.
Footnote 30:
See Metlakatla Indian Community, Annette Island Reserve
v. Egan, 362 P.2d 901, 922-23 (Alaska 1961), vacated on other
grounds, 369 U.S. 45 (1962), aff'd sub nom on other grounds, 369
U.S. 60 (1962).
Footnote 31:
Id. at 915. One could argue that regulation of salmon
traps is an allocation of resources, given that the purpose of the
ordinance was to give individual commercial Alaska fishermen
greater access to the salmon population. See 5 PACC at 3564-71
(January 30, 1956); Alaska Const. ord. III, sec. 2. This argument
was
not made by opponents of Ordinance 3, nor was it made by Wright in
this case with respect to the wolf snare initiative. Moreover, the
wolf snare initiative, the main purpose of which is presumably to
prevent cruelty to animals, does not present the same opportunity
or motive for self-dealing as did Ordinance 3. In any event, such
an argument does not diminish the persuasiveness of the Ordinance
3 example in countering Wright's public trust argument.
Footnote 32:
Alaska Const. art. VIII, sec.sec. 3, 4.
Footnote 33:
See, e.g., McDowell v. State, 785 P.2d 1, 18 (Alaska
1989); Herscher v. State, Dep't of Commerce, 568 P.2d 996, 1002-03
(Alaska 1977).
Footnote 34:
Owsichek v. State, Guide Licensing & Control Bd., 763
P.2d 488, 496 (Alaska 1988).
Footnote 35:
755 P.2d 1115 (Alaska 1988).
Footnote 36:
See id. at 1121.
Footnote 37:
See id. at 1118-19.
Footnote 38:
See id. at 1118 nn.7-8.
Footnote 39:
Owsichek v. State, Guide Licensing & Control Bd., 763 P.2d
488, 493 (Alaska 1988) (citing constitutional convention papers).
Footnote 40:
Owsichek, 763 P.2d at 494 (citation omitted).
Footnote 41:
958 P.2d 422 (Alaska 1998).
Footnote 42:
Id. at 434 (citation and internal quotation marks
omitted).
Footnote 43:
Id. (citing State v. Weiss (Weiss I), 706 P.2d 681, 683
n.3 (Alaska 1985)).
Footnote 44:
See Weiss I, 706 P.2d at 681-82.
Footnote 45:
706 P.2d at 683 n.3 (emphases added) (quoting University
of Alaska, 624 P.2d at 813).
Footnote 46:
939 P.2d 380 (Alaska 1997), cert. denied, 118 S. Ct. 366
(1997).
Footnote 47:
Id. at 389.
Footnote 48:
See Restatement (Second) of Trusts sec.sec. 174, 176, 181
(1959).
Footnote 49:
See Alaska Const. art. VIII, sec.sec. 1, 4.
Footnote 50:
See Owsichek v. State, 763 P.2d 488, 494 (Alaska 1988).
Footnote 51:
See id. at 492 (noting that the common use clause does not
prohibit all regulation of use of listed resources).
Footnote 52:
See Restatement (Second) of Trusts at sec. 37 cmt. b
(1959) (creator may reserve for beneficiary the power to
administer,
revoke, or modify trust).
Footnote 53:
See id. at sec.sec. 99, 100.
Footnote 54:
See, e.g., Evans v. City of Johnstown, 410 N.Y.S.2d 199,
207-08 (N.Y. App. Div. 1978) ("While the use of the name 'public
trust' may suggest duties similar to those under a private trust,
that interpretation is not feasible."); City of Coronado v. San
Diego Unified Port Dist., 38 Cal. Rptr. 834, 844 (Cal. Dist. App.
1964) ("[P]rivate trust principles cannot be called upon to nullify
an act of the legislature or modify its duty . . . .").
Footnote 55:
James L. Huffman, A Fish Out of Water: The Public Trust
Doctrine in a Constitutional Democracy, 19 Envtl. L. 527, 544
(1989).
Footnote 56:
923 P.2d 54 (Alaska 1996).
Footnote 57:
See id. at 55, 64-65.
Footnote 58:
Id. at 61.
Footnote 59:
See id. at 58.
Footnote 60:
See id. at 64.
Footnote 61:
See id. at 64 n.18. Justice Compton concurred with our
result in Pullen, disagreeing with our conclusion that salmon was
a state "asset"and basing his decision instead on the Article VIII
public trust argument. See Pullen, 923 P.2d at 65-66 (Compton, J.,
concurring).
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