Hughes v. Treadwell

341 P.3d 1121, 2015 Alas. LEXIS 10, 2015 WL 404235
CourtAlaska Supreme Court
DecidedJanuary 30, 2015
Docket6981 S-15468
StatusPublished
Cited by7 cases

This text of 341 P.3d 1121 (Hughes v. Treadwell) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hughes v. Treadwell, 341 P.3d 1121, 2015 Alas. LEXIS 10, 2015 WL 404235 (Ala. 2015).

Opinion

OPINION

STOWERS, Justice.

I. INTRODUCTION

Richard Hughes, the Alaska Miners Association, and the Council of Alaska Producers (collectively referred to as "Hughes") challenged Lieutenant Governor Mead Treadwell's certification of a ballot initiative that would require final legislative approval for any large-scale metallic sulfide mining operation located within the Bristol Bay watershed. Hughes argued that the initiative violates the constitutional prohibitions on appropriation and enacting local or special legislation by initiative. Following oral argument we issued an order affirming the superior court's summary judgment order in favor of the State and the initiative sponsors, and allowing preparation of ballots to proceed.. 1 This opinion explains our reasoning. 2

II. FACTS AND PROCEEDINGS

In October 2012 Lieutenant Governor Mead Treadwell received an application for an initiative entitled "Bristol Bay Forever"; the Division of Elections denominated the initiative "12BBAY." The stated purpose of

*1124 the initiative was to enact law "providing for [the] protection of Bristol Bay wild salmon and waters within or flowing into the existing 1972 Bristol Bay Fisheries Reserve." Seetion 1 of the initiative would add the following new section to AS 38.05:

Sec. 38.05.142. Legislative approval required for certain large scale mines.
(a) In addition to permits and authorizations otherwise required by law, a final authorization must be obtained from the legislature for a large-scale metallic sulfide mining operation located within the watershed of the Bristol Bay Fisheries Reserve designated in AS 38.05.140(f). This authorization shall take the form of a duly enacted law finding that the proposed large-scale metallic sulfide, mining operation will not constitute danger to the fishery within the Bristol Bay Fisheries Reserve.
(b) The commissioner may adopt regulations under AS 44.62 to implement this section.
(c) In this section, "large-scale metallic sulfide mining operation" means a specific mining proposal to extract metals, including gold and copper, from sulfide-bearing rock that would directly disturb 640 or more acres of land.

Section 2 would amend the "uncodified law of the State of Alaska" to make findings recognizing the ecological and economic importance of the Bristol Bay Fisheries Reserve and the potential adverse effects of metallic sulfide mining. 3 After review by the Department of Law-which concluded that the initiative did not make an appropriation or enact local or special legislation and violated no other constitutional provisions-the Licuten-ant Governor certified 12BBAY.

In January 2013 Hughes challenged 12BBAY's certification in superior court, arguing that the initiative "constitutes impermissible local and special legislation and violates the separation of powers doctrine."

Hughes amended his complaint several times, joining the Alaska Miners Association and the Council of Alaska Producers as plaintiffs. Initiative sponsors Christina Salmon, Mark Niver, and John H. Holman moved to intervene as defendants; the superior court granted their unopposed motion. In February the initiative sponsors moved for summary judgment. They then filed a separate answer to the amended complaint in March. In August Hughes cross-moved for summary judgment. In January 2014 Hughes filed a third amended complaint, adding a claim that 12BBAY would unconstitutionally appropriate state assets, and again moved for summary judgment.

Considering his motions for summary judgment together, Hughes argued that 12BBAY would: (1) enact local or special legislation in violation of article XI, section 7 of the Alaska Constitution; (2) violate separation of powers under article XII, section 11 of the Alaska Constitution; and (8) appropriate state assets in violation of article XI, section 7 of the Alaska Constitution. The superior court concluded that 12BBAY would not enact local or special legislation, would not clearly violate separation of powers, and would not appropriate public assets. The court granted summary judgment in favor of the State and the initiative sponsors and declined to enjoin placement of 12BBAY on the ballot. Hughes appeals to this court, challenging the superior court's conclusions that 12BBAY would not make an unconstitutional appropriation of public assets or enact local or special legislation.

III STANDARD OF REVIEW

We review a superior court's summary judgment decision de novo, reading the record in the light most favorable to, and drawing all reasonable inferences in favor of, the non-moving party. 4 Ballot initiatives are subject to pre-election review only "where the initiative is challenged on the basis that it does not comply with the state constitutional *1125 and statutory provisions regulating initiatives" or "where the initiative is clearly unconstitutional or clearly unlawful." 5 The constitutionality of a ballot initiative is a question of law, which we review using our independent judgment, "adopting the rule of law that is most persuasive in light of precedent, reason, and policy." 6 We "construe voter initiatives broadly so as to preserve them whenever possible." 7 And "we liberally construe constitutional and statutory provisions that apply to the initiative process." 8 However, whether an initiative complies with article XI, section T's limits on the right of direct legislation requires careful consideration. 9

IV. DISCUSSION

Article XI, section 1 of the Alaska Constitution provides that "[the people may propose and enact laws by the initiative." But article XI, section 7 creates several specific restrictions on this power: "The initiative shall not be used to dedicate revenues, make or repeal appropriations, create courts, define jurisdiction of courts or prescribe their rules, or enact local or special legislation." Here, Hughes argues that 12BBAY violates article XI, section T's prohibition on appropriation by initiative and on enacting local or special legislation by initiative. We conclude that 12BBAY would not appropriate state assets or enact local or special legislation.

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

Hughes argues that 12BBAY violates the anti-appropriation clause of article XI, section 7 because it impermissibly interferes with the legislature's appropriation authority.

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Bluebook (online)
341 P.3d 1121, 2015 Alas. LEXIS 10, 2015 WL 404235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hughes-v-treadwell-alaska-2015.