Wednesday, February 4, 2015

Alaska Supreme Court Upholds Bristol Bay Salmon Initiative

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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