The Alaska Supreme Court has upheld the legality of an
initiative that passed in November’s general election requiring legislative
approval for any mining activities in the Bristol Bay Fisheries Reserve.
The ruling handed down on Jan. 30 came in a lawsuit filed by
a consultant for the Pebble Limited Partnership, the Alaska Miners Association
and the Council of Alaska Producers against the state of Alaska.
The lawsuit challenged then-Lt. Gov. Mead Treadwell’s
certification of the initiative, as 12BBAY, to require final legislative
approval for any large-scale metallic sulfide mining operation within the
Bristol Bay watershed. Initiative sponsors Christina Salmon, Mark Niver and John
H. Holman also intervened in support of the state.
Plaintiffs argued that the initiative violated the
constitutional prohibitions on appropriation and enacting local or special
legislation by initiative.
The high court concluded that the initiative would not
appropriate state assets or enact local or special legislation, in that it
leaves final authority for appropriating state resources in the hands of the
Legislature, along with discretion on whether to approve a particular mining
project.
While the initiative undeniably would alter the
Legislature’s existing scheme for allocating and regulating the use of the
state’s mineral resources, the court had previously concluded in another case
involving the Pebble Limited Partnership that there is no prohibition on
initiatives altering existing public resource regulations.
The court found that protecting Bristol Bay’s wild salmon
and waters within or flowing into the existing 1972 Bristol Bay Fisheries
Reserve comprises a legitimate purpose.
The judges also noted that the Legislature had previously
recognized the importance of the Bristol Bay fishery by establishing the
reserve. That statute mandates that oil and gas leases or exploration licenses
may not be issued on state owned or controlled land unless legislators
concluded that such activity would not constitute danger to the fishery.
The 25-page decision also found “Bristol Bay’s unique and
significant biological and economic characteristics are of great interest not
just to the Bristol Bay region but to the state as a whole. We also conclude
that 12BBAY’s purpose, to protect Bristol Bay wild salmon and waters, is
legitimate,” the court said.
In a related 23-page decision, the court ruled in favor of the
intervenors’ motion for attorney’s fees and costs.
Plaintiffs had argued that they were public interest
litigants and therefore exempt from an award of fees. The intervenors countered
that the plaintiffs were proxies for the Pebble Limited Partnership, which had
paid a portion of the fees incurred by the plaintiff and agreed to indemnify
the plaintiffs for any award of fees and costs entered against them in the
case.
“The plaintiffs are proxy parties for Pebble Limited
Partnership, which had an economic incentive to file this suit,” the court
said.
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