Court Sees Value in Protecting Bristol Bay

Court Sees Value in Protecting Bristol Bay

Before the Bristol Bay Forever Initiative was ever printed on statewide ballots, it had to defend a legal challenge from an individual named Richard Hughes, the Alaska Miner’s Association, and the Council of Alaska Producers. The Alaska Supreme Court issued an oral decision allowing that initiative to go to the ballot. Today, the Court issued a written order justifying its decision, Hughes v. Treadwell, Slip Op. No. 6981 (Alaska Supreme Court, Jan. 30, 2015).

In order for a citizen ballot initiative to be valid in Alaska, it must avoid certain prohibited topics.  Under Article XI, section 7, it may not engage in an appropriation or enact local or special legislation.  The Court spent most of the time in its written opinion explaining why the initiative does not violate the anti-appropriation requirement (13 pages of the opinion).  It’s all very interesting constitutional law, separation-of-powers stuff that I will spare sharing with you.

What I find most intriguing is the second part of the opinion, where the Court examines whether it is a prohibited local or special legislation. Under this part, the Court has designed a two-part test to determine if the initiative is local or special legislation: (1) consider “whether the proposed legislation is of general, statewide applicability,” and (2) if the initiative is not generally applicable, the Court considers whether the initiative nevertheless “bears a fair and substantial relationship to legitimate purposes.” In this case, the Court readily agreed that the proposed initiative was not of statewide applicability – by its very nature, it was limited to the scope of the 1972 legislation establishing the Bristol Bay Fishery Reserve. Thus, the question for the Court ultimately was whether the initiative had a relationship to a “legitimate purpose.” The Court handily concluded that indeed it did.

As with such opinions, the Court spent time reviewing Mr. Hughes’ arguments before the Superior Court, the Superior Court’s decision, and applicable precedent. There are several key aspects of this discussion worth noting. First, the Court noted: “The record in this case also indisputably establishes that the Bristol Bay watershed has unique ecological, geographic, and economic characteristics; that the fishery has significant statewide importance; and that metallic sulfide mining poses potential water quality risks.” Referring to Mr. Hughes’ own economics expert, the Court observed that several factors “distinguish Bristol Bay from the state’s other salmon producing regions and also show its significance to the state as a whole.” The Court also referred to a University of Alaska Anchorage Institute of Social and Economic Research study showing that the Bristol Bay sockeye fishery “is the world’s most valuable wild salmon fishery, and typically supplies almost half of the world’s wild sockeye salmon.”

In conclusion, the Court noted that  “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” and that the purpose of the Bristol Bay Forever Initiative — “to protect ‘Bristol Bay wild salmon and waters’ — is legitimate.”

Let us hope that this consideration of the value of the Bristol Bay fishery will translate well into the Court’s next unique issue to address in Bristol Bay, a case that has been going now for almost six years – Nunamta Aulukestai et al. v. State of Alaska. In that case, Nunamta Aulukestai, a coalition of Bristol Bay Tribes, along with some key individuals like Rick Delkitte of Nondalton, Violet Willson of Naknek and Vic Fischer (one of two surviving members of the Alaska Constitutional Convention delegation), filed suit against the State of Alaska for allowing over 20 years (now 26 years) of exploration of the Pebble Prospect with little or no public process. Their case argued that there should be a “public interest determination,” like there is with the oil and gas industry, before massive mineral exploration projects like Pebble can commence. The case lost in Superior Court following a lengthy trial in December 2010. The parties argued their case before the Alaska Supreme Court in December 2013, and expect a decision any day now.

 

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