OPINION: High court's actions protect Alaskans
June 5th, 2015 | Carey Restino
Last week, the Alaska Supreme Court reversed two decisions, one that will likely change the process for permitting mining exploration in the state, and another that re-opens the door for citizens who feel compelled to challenge the constitutionality of state actions.
Both decisions originated in the contentious debate over the proposed Pebble mine in the headwaters of Bristol Bay. But the impact reaches far beyond Southwest Alaska.
In the first decision, the courts determined that the plaintiffs were not responsible for proving that environmental harm was being done to public lands under permits issued by the state. At issue were the hundreds of core holes being drilled by the Pebble Partnership under state permits known as Miscellaneous Land Use Permits.
The plaintiffs — 10 village corporations and 10 tribal governments as well as four individual plaintiffs, former first lady Bella Hammond, Vic Fischer, who was one of the last living Alaska Constitutional Delegates, as well as Rick Delkittie and Violet Willson — argued that the publicly held state lands were being disposed of without any public process, which is required under the Alaska Constitution. Essentially, state lands are owned by everyone in the state, so if they are being irreversibly changed, the public has to approve that. For oil and gas exploration, the state must determine what the best public interests are prior to any exploration activity begins. But not so for mining.
The state argued that since the permits could be revoked at any time, the lands were not being disposed of. But the Supreme Court disagreed. Instead, the courts found that the activity being conducted by the Pebble Partnership was irreversible — that is to say that if the state revoked the partnerships permits, the land could not be returned to its prior state, free of concrete-filled core holes and buried waste sumps. The land had been altered permanently, the courts determined, and the public hadn't been asked if it approved.
Not only that, though. The court ruled that the state has a burden to determine potential consequences to public lands from such permitted activity prior to any mining activity being conducted. This will change the way mining activity in Alaska proceeds. While the details are yet unclear, the bottom line is the court has required more public process from the state in the future, and not just at the Pebble Prospect.
But arguably the bigger of the two decisions concerns the courts ruling on the financial responsibility of those challenging the constitutionality of state action.
State law says that the losing party in a case can be asked to pay the costs and attorneys fees of the winning party in a civil lawsuit. But Alaska ruled in 1974 that there was a public interest exception to that way of doing business. Those who bring lawsuits in the interests of debating issues that are of public importance were exempted from financial responsibility to the other side — be it a company or the state itself. That law was changed again in 2003 under the administration of Gov. Frank Murkowski. The Alaska Legislature changed the exception to only be in cases where constitutional claims were being raised. And even if the case was constitutionally relevant, if the losing party raised the claim and had "sufficient economic incentive" with a positive ruling, the court fees could become their burden to bear.
The state of Alaska and Pebble argued that the plaintiffs — including two of Alaska's most revered elders, Hammond and Fischer — had a financial interest because they were simply standing in for other parties with economic interests, such as well-off sportsfishermen and lodge owners, some of whom had richly funded an anti-Pebble campaign for years.
The state and Pebble sought to recover millions from all the plaintiffs, and even the lawyers who argued the plaintiffs case pro bono, as well as nonprofits involved in the case, and those who had supported the nonprofits. This far reaching attempt to recoup legal fees from the widow of former governor Jay Hammond, now in her 80s, as well as the other plaintiffs, did not win the state any publicity points, it also had the potential to deal a devastating blow to any future legal challenges of state actions. Would anyone want to challenge the state if their home, retirement and children's college funds were at risk? Not too likely.
The Supreme Court rejected the idea that the litigants in this case had sufficient economic incentive, noting that this incentive had to be far more direct than any ties the state and Pebble were arguing existed in this case. The court also disagreed with the state and Pebble's claims that the desire by some litigants to protect subsistence hunting and fishing rights were sufficient economic incentive to trigger a requirement that the court fees be paid by the losing team.
That's a lot of legaleeze to absorb, but the Alaska Supreme Court upheld the rights of ordinary citizens with ordinary pockets to raise issues they deem important to upholding the Alaska Constitution, a document that protects us all in a myriad of ways. Without this ruling, many issues of state importance could very well have gone past without debate, since more often than not these days, decisions are made not in the Alaska Legislature but in the Alaska courts.
The Supreme Court, with its actions this week, protected the right of every Alaskan to argue in what he or she deems the public's best interest, and that's a very good thing for each and every one of us.