Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER. 

Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts, 

303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email 

corrections@akcourts.us. 

THE SUPREME COURT OF THE STATE OF ALASKA 

RICHARD HUGHES, THE ALASK

MINERS ASSOCIATION, and THE 

COUNCIL OF ALASKA 

PRODUCERS, 

Appellants, 

v. 

MEAD TREADWELL, 

LIEUTENANT GOVERNOR OF 

THE STATE OF ALASKA, THE 

STATE OF ALASKA, DIVISION 

OF ELECTIONS, CHRISTINA 

SALMON, MARK NIVER, 

and JOHN H. HOLMAN, 

Appellees. 

A ) 

) Supreme Court No. S-15468 

Superior Court No. 4FA-13-01296 CI 

O P I N I O N 

No. 6981 – January 30, 2015 

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Appeal from the Superior Court of the State of Alaska, 

Fourth Judicial District, Fairbanks, Paul R. Lyle, Judge. 

Appearances: Matthew Singer and Robert J. Misulich, 

Jermain Dunnagan & Owens, P.C., Anchorage, for 

Appellants. Elizabeth M. Bakalar, Assistant Attorney 

General, and Michael C. Geraghty, Attorney General, Juneau, 

for Appellees Lieutenant Governor Mead Treadwell and the 

State of Alaska, Division of Elections. Timothy A. 

McKeever and Scott M. Kendall, Holmes Weddle & Barcott, 

P.C., Anchorage, for Appellees Christina Salmon, Mark 

Niver, and John H. Holman. 
 

 

 

 

Before: Winfree, Stowers, Maassen, and Bolger, Justices. 

[Fabe, Chief Justice, not participating.] 

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 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.” Section 1 of the initiative 

would add the following new section to AS 38.05: 

1 Hughes v. Treadwell, 328 P.3d 1037 (Alaska 2014). 

2 The initiative was passed by a majority of the voters in the 

November 4, 2014 general election. 

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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 

Lieutenant 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 

Sections 3-5 of the initiative are not important to this appeal. Section 3 is 

a grandfather clause that would protect existing mining operations. Section 4 is a 

severability provision. Section 5 proposes an effective date. 

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3 
 

 

 

 

 

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 (3) 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 

Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 

1064, 1072 (Alaska 2009) (citing Anchorage Citizens for Taxi Reform v. Municipality 

of Anchorage, 151 P.3d 418, 422 (Alaska 2006)). 

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4 
 

 

 

 

 

 

 

 

 

 

constitutional 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 7’s limits on 

the right of direct legislation requires careful consideration.9 

IV. DISCUSSION 

Article XI, section 1 of the Alaska Constitution provides that “[t]he 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 

5 Alaskans for Efficient Gov’t, Inc. v. State, 153 P.3d 296, 298 (Alaska 2007) 

(quoting State v. Trust the People, 113 P.3d 613, 614 n.1 (Alaska 2005)). 

6 Pebble Ltd. P’ship, 215 P.3d at 1072 (citing Anchorage Citizens for Taxi 

Reform, 151 P.3d at 422). 

7 Id. at 1073 (quoting Anchorage Citizens for Taxi Reform, 151 P.3d at 422) 

(internal quotation marks omitted). 

8 Kodiak Island Borough v. Mahoney, 71 P.3d 896, 898 (Alaska 2003) (citing 

Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999); Interior Taxpayers Ass’n v. 

Fairbanks North Star Borough, 742 P.2d 781, 782 (Alaska 1987)). 

9 Pebble Ltd. P’ship, 215 P.3d at 1073 (“[I]nitiatives touching upon the 

allocation of public revenues and assets require careful consideration because the 

constitutional right of direct legislation is limited by the Alaska Constitution.” (quoting 

Anchorage Citizens for Taxi Reform, 151 P.3d at 422) (internal quotation marks 

omitted)). 

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their rules, or enact local or special legislation.” Here, Hughes argues that 12BBAY 

violates article XI, section 7’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. Hughes contends that “12BBAY would set aside the entire 

Bristol Bay Watershed for the purpose of propagating salmon” and “would immediately 

ban new large-scale hardrock mining in this vast area without any further legislative 

action.” The State and sponsors respond that 12BBAY is not an appropriation because 

it regulates rather than allocates resources, expressly leaving final authority to allocate 

state resources with the legislature. 

We employ a two-part inquiry to determine whether an initiative makes an 

appropriation of state assets in violation of article XI, section 7.10 First we must 

determine “whether the initiative deals with a public asset.” 11 Second, if the initiative 

deals with a public asset, then we must determine “whether the initiative would 

appropriate that asset.”12 None of the parties dispute the superior court’s conclusion that 

“12BBAY concerns a ‘public asset.’ ” As the superior court noted, “[w]hether the 

initiative is construed as one that affects fish, waters of the state or state lands, each of 

10 Id. (citing Anchorage Citizens for Taxi Reform, 151 P.3d at 422). 

11 Id. (quoting Anchorage Citizens for Taxi Reform, 151 P.3d at 422) (internal 

quotation marks omitted). 

12 Id. (quoting Anchorage Citizens for Taxi Reform, 151 P.3d at 423) (internal 

quotation marks omitted). 

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these resources is a public asset.”13 The issue here is whether 12BBAY appropriates fish, 

waters of the state, or state lands. 

In evaluating whether an initiative that deals with a state asset appropriates 

that asset, we look to “two core objectives” of the prohibition against appropriation by 

initiative.14 Those objectives are (1) “to prevent give-away programs that appeal to the 

self-interest of voters and endanger the state treasury,”15 and (2) “to preserve legislative 

discretion by ensur[ing] that the legislature, and only the legislature, retains control over 

the allocation of state assets among competing needs.” 16 Hughes does not challenge the 

superior court’s conclusion that 12BBAY is not a give-away program. And that 

conclusion is clearly correct: 12BBAY does not give away state resources to voters or 

to any particular group, person, or entity.17 Thus, the only remaining question is whether 

12BBAY impermissibly interferes with the legislature’s control over allocation of state 

assets. 

13 See id. at 1073-74 (holding that “the waters of the state are a public asset,” 

and noting that “[this court has] previously determined that public land, public revenue, 

a municipally-owned utility, and wild salmon are all public assets that cannot be 

appropriated by initiative” (footnotes omitted)). 

14 Id. at 1074-75 (citing Anchorage Citizens for Taxi Reform, 151 P.3d 

at 423). 

15 Id. (quoting Anchorage Citizens for Taxi Reform, 151 P.3d at 423). 

16 Id. (emphasis in original) (quoting McAlpine v. Univ. of Alaska, 

762 P.2d 88 (Alaska 1988)) (internal quotation marks omitted). 

17 See City of Fairbanks v. Fairbanks Convention & Visitors Bureau, 818 P.2d 

1153, 1157 (Alaska 1991) (concluding that an initiative was not a give-away program 

because “[n]o particular group or person or entity [was] targeted to receive state money 

or property, nor [was] there any indication that by passing [the] initiative, the voters 

would be voting themselves money”). 

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Hughes argues that because the legislature delegated the allocation of 

mineral leases to the Department of Natural Resources (DNR), 12BBAY impermissibly 

limits legislative discretion by forcing the legislature itself to make final allocation 

decisions and thus violates the anti-appropriation clause. The superior court concluded 

that 12BBAY does not limit legislative control over state assets because it expressly 

leaves final authority for appropriating state resources in the hands of the legislature. 

The superior court rejected Hughes’s argument that the second objective of the antiappropriation clause is violated when an initiative affects the process of making 

appropriations. 

We have previously stated that an initiative “narrows the legislature’s range 

of freedom to make allocation decisions in a manner sufficient to render the initiative an 

appropriation”18 when “the initiative ‘would set aside a certain specified amount of 

money or property for a specific purpose or object in such a manner that is executable, 

mandatory, and reasonably definite with no further legislative action.’ ”19 Several of our 

decisions regarding whether particular initiatives would make an appropriation illuminate 

this principle. 

In McAlpine v. University of Alaska we considered an initiative that would 

have established a state community college system and required the University of Alaska 

to transfer certain property to the new system.20 We upheld the initiative’s provisions 

creating and funding an independent community college system, but struck the 

18 Pebble Ltd. P’ship, 215 P.3d at 1075 (citing Pullen v. Ulmer, 923 P.2d 54, 

64 n.15 (Alaska 1996)). 

19 Id. (quoting Staudenmaier v. Municipality of Anchorage, 139 P.3d 1259, 

1262 (Alaska 2006)). 

20 762 P.2d 81, 87-88 (Alaska 1988). 

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initiative’s third sentence, which provided: “The amount of property transferred shall 

be commensurate with that occupied and operated by the Community Colleges on 

November 1, 1986.”21 We concluded that this language impermissibly “designat[ed] the 

use of an ascertainable and definite amount of state assets” — that amount in use by the 

community colleges on November 1, 1986.22 We noted that a key consideration 

supporting this conclusion was that “no further legislative action would be necessary to 

require the University to transfer property to the community college system, or to specify 

the amount of property the University must transfer.”23 But we concluded that the 

initiative’s second sentence, which provided that “[t]he University of Alaska shall 

transfer to the Community College System of Alaska such real and personal property as 

is necessary to the independent operation and maintenance of the Community College 

System,”24 was not an appropriation because the legislature would maintain “all the 

discretion it needs with respect to appropriations for community colleges.”25 We 

reasoned that the legislature’s discretion would be limited only to the extent that the 

legislature could not eliminate all appropriations for community colleges, and we saw 

no realistic danger that the legislature would attempt to do so.26 

In City of Fairbanks v. Fairbanks Convention & Visitors Bureau we 

considered a local ballot initiative that would have amended a municipal ordinance 

21 Id. at 83, 95-96.
 

22 Id. at 89-90.
 

23
 Id. at 91. 

24 Id. at 87. 

25 Id. at 91. 

26 Id. 

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governing the use of funds from the city’s hotel tax by allowing revenue from the tax to 

be used for non-tourist and entertainment purposes and eliminating the requirement that 

a certain percentage of the tax go to the Fairbanks Convention and Visitors Bureau.27 

We concluded that the initiative did not repeal an appropriation because the ordinance 

it amended was not an “appropriation” as the legislature used the term in 

AS 29.35.100 — “that is as an act which accompanies the approval of the annual budget 

or is supplemental to that act.”28 We further concluded that the initiative was not an 

appropriation in its own right because it would not “reduce the [city] council’s control 

over the appropriations process. Instead, the initiative [would] allow[] the council 

greater discretion in appropriating funds than [did] the current law.”29 

In Pullen v. Ulmer we considered an initiative that would direct allocation 

of the salmon harvest among competing users and would create preferences for 

subsistence, personal, and recreational users.30 After determining that wild salmon were 

a state asset,31 we held that the initiative would impermissibly appropriate that asset.32 

We concluded that the initiative was a giveaway, both because it was “designed to appeal 

to the self-interests of sport, personal and subsistence fishers” and would “significantly 

reduce[] the legislature’s and Board of Fisheries’ control of and discretion over 

allocation decisions, particularly in the event of stock-specific or region-specific 

27 818 P.2d 1153, 1154-55 (Alaska 1991). 


28 Id. at 1157.
 

29
 Id. (emphasis added). 

30 923 P.2d 54, 55 (Alaska 1996). 

31 Id. at 61. 

32 Id. at 63-64. 

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shortages of salmon between the competing needs of users.”33 We distinguished 

McAlpine by emphasizing that the initiative at issue could significantly limit the Board 

of Fisheries’ discretion to make allocation decisions in times of shortages and that “there 

is a very realistic danger that such shortages will occur.”34 

In Alaska Action Center, Inc. v. Municipality of Anchorage we considered 

an initiative that would have limited development on municipal property.35 We 

concluded that the initiative was distinguishable from the permissible section of the 

initiative in McAlpine because it “ ‘designat[ed] the use of’ specified amounts of public 

assets in a way that encroaches on the legislative branch’s exclusive ‘control over the 

allocation of state assets among competing needs.’ ”36 We rejected Alaska Action 

Center’s argument that the initiative was distinguishable from the one at issue in 

McAlpine because it did not mandate a transfer of property: “McAlpine did not 

rest . . . on the fact that the initiative at issue there would have required a formal land 

transfer; the ruling focused on the fact that the initiative directed a specific amount of 

property to be used for a specified purpose.”37 We also emphasized that the prohibition 

against appropriations is meant to keep “control of the appropriation process in the 

33 Id. at 63. 

34 Compare id. at 64 with McAlpine v. Univ. of Alaska, 762 P.2d 81, 91 

(Alaska 1988) (upholding limitation on legislature’s discretion to eliminate all funding 

for community colleges because there was “no realistic danger that the legislature would 

attempt to do so”). 

35 84 P.3d 989, 990-91 (Alaska 2004). 

36 Id. at 994 (quoting McAlpine, 762 P.2d at 89; Pullen, 923 P.2d at 63) 

(footnote omitted). 

37 Id. 

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legislative body”38 and concluded that the initiative would intrude on legislative control 

by “limiting the mechanism for future change to another initiative process.”39 

In Staudenmaier v. Municipality of Anchorage we considered whether two 

initiatives that would have directed the municipality to sell utility assets would 

impermissibly appropriate assets.40 The first initiative would have required the 

municipality to sell Anchorage Municipal Light & Power Utility and its assets and would 

have granted Chugach Electric Association a right of first refusal.41 The second initiative 

would have required the municipality to sell the Anchorage Municipal Refuse Collection 

Utility to the highest bidder. 42 We concluded that the municipal clerk properly rejected 

the initiative petitions because, by requiring the sale of public assets, they violated article 

XI, section 7’s prohibition on appropriating by initiative. 43 We explained that the line 

between an unobjectionable initiative that deals with a public asset and one that is an 

impermissible appropriation is crossed “where an initiative controls the use of public 

assets such that the voters essentially usurp the legislature’s resource allocation role.”44 

38 Id. (emphasis in original) (quoting City of Fairbanks v. Fairbanks 

Convention & Visitors Bureau, 818 P.2d 1153, 1156 (Alaska 1991)) (internal quotation 

marks omitted). 

39 Id. at 994-95. 

40 139 P.3d 1259, 1260 (Alaska 2006). 

41 Id. at 1260-61. 

42 Id. at 1261. 

43 Id. at 1263. 

44 Id. (citing Alaska Action Ctr. v. Municipality of Anchorage, 84 P.3d 

989, 994 (Alaska 2004)). 

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In Pebble Ltd. Partnership ex rel. Pebble Mines Corp. v. Parnell we 

considered an initiative that would have regulated large-scale metallic mines for the 

purpose of protecting water quality.45 We concluded that the initiative dealt with a public 

asset — waters of the state — but that the initiative would not appropriate that asset.46 

As in this case, no party argued that the initiative was a “give-away program.”47 Instead, 

the primary question was “whether the initiative narrow[ed] the legislature’s range of 

freedom to make allocation decisions in a manner sufficient to render the initiative an 

appropriation.”48 We concluded that because the initiative was properly read as 

“preclud[ing] only discharges of toxic chemicals and other mine waste that cause 

‘adverse effects’ to humans, salmon, and waters used for human consumption or as 

salmon habitat,” it did not make an appropriation.49 We stated that “the prohibition 

against initiatives that appropriate public assets does not extend to prohibit initiatives that 

regulate public assets, so long as the regulations do not result in the allocation of an asset 

entirely to one group at the expense of another.”50 We further observed that the initiative 

left the Department of Environmental Conservation and Department of Natural 

45 215 P.3d 1064, 1069-70 (Alaska 2009).
 

46 Id. at 1074-77.
 

47
 Id. at 1075. 

48 Id. (citing Pullen v. Ulmer, 923 P.2d 54, 64 n.15 (Alaska 1996)). 

49 Id. at 1077. 

50 Id. 

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Resources the discretion to determine specific amounts of toxic pollutants that may be 

discharged and did not exhibit any “explicit preference among potential users.”51 

In Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough we 

considered a ballot initiative passed by voters that required voter approval for all 

Borough capital projects with a total cost in excess of one million dollars.52 We 

concluded that requiring voter approval for a specific class of Borough expenditures was 

an appropriation, and, therefore, the initiative was invalid.53 We explained that “an 

initiative may make an impermissible appropriation not only when it designates public 

assets for some particular use, but also when it allocates those assets away from a 

particular group.”54 We concluded that the voters would not invariably approve all 

capital projects placed on the ballot as a result of the initiative, and thus the initiative 

would allocate assets away from those capital projects meeting the voter-approval 

threshold.55 

Most recently in Municipality of Anchorage v. Holleman we considered, 

among other things, whether a referendum to repeal a municipal ordinance was an 

appropriation.56 The ordinance at issue made a number of changes to the employee 

relations chapter of the Anchorage Municipal Code, including limiting overtime 

compensation, prohibiting strikes, and placing new restrictions on collective 

51 Id.
 

52 273 P.3d 1128, 1130 (Alaska 2012).
 

53 Id. at 1137-38.
 

54 Id. at 1138 (emphasis added) (citing Pullen v. Ulmer, 923 P.2d 54, 64 

(Alaska 1996)). 

55 Id. 

56 321 P.3d 378, 380 (Alaska 2014). 

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bargaining.57 The municipality argued that by repealing an ordinance intended to save 

money on labor costs, the referendum would effectively appropriate public assets that the 

municipal assembly could direct to other priorities. 58 We rejected that argument, noting 

that “we have never held that any effect on public resources triggers the prohibition on 

direct legislation; nearly all legislation involves public assets to some degree.”59 We 

observed that “the referendum [did] not compel or restrict the expenditure of public 

funds, the approval of labor contracts, or any particular level of employee 

compensation,” and that “the economic effects of the ordinance are indirect and presently 

unknowable.” 60 Thus, we concluded that the referendum was not an “ ‘executable, 

mandatory, and reasonably definite’ set-aside [of money or property] that our case law 

requires before we will find that an initiative or referendum makes an appropriation.”61 

Read together, these cases create a relatively detailed outline of when an 

initiative or referendum impermissibly limits legislative discretion to allocate state assets 

in violation of article XI, section 7. An initiative or referendum may: (1) mandate a nonappropriative allocation of property — including a transfer of property from a specific 

government entity — sufficient to accomplish a particular purpose;62 (2) repeal a 

57 Id. at 380-81.
 

58 Id. at 384.
 

59 Id.
 

60 Id. at 385.
 

61 Id. (quoting Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula
 

Borough, 273 P.3d 1128, 1136 (Alaska 2012)). 

62 See McAlpine v. Univ. of Alaska, 762 P.2d 81, 87, 96 (Alaska 1988) 

(approving initiative’s requirement that the University of Alaska transfer to an 

independent community college system “such real and personal property as is necessary 

(continued...) 

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legislative enactment that designates the use of government funds, as long as the statute 

or ordinance is not an “appropriation” as the legislature used the term in AS 29.35.100;63 

(3) increase the legislative body’s discretion in making appropriations by changing 

64 65 existing law; (4) regulate the use of public assets; or (5) repeal a legislative enactment 

intended to reduce government expenditures in a particular area of the budget.66 

But an initiative or referendum may not: (1) require the allocation of “an 

ascertainable and definite amount of state assets”;67 (2) set aside specified property for 

a particular use, especially where the initiative “limit[s] the mechanism for future change 

to another initiative process”;68 (3) set preferences among user groups of a particular 

62(...continued) 

to the independent operation and maintenance of the Community College System”). 

63 See City of Fairbanks v. Fairbanks Visitors & Convention Bureau, 818 P.2d 

1153, 1157 (Alaska 1991) (concluding that initiative amending a city ordinance that 

designated the use of the city’s hotel tax did not repeal an appropriation). 

64 See id. (concluding that initiative could not be an appropriation if it 

expanded the legislature’s authority to allocate funds). 

65 Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 

1064, 1077 (Alaska 2009) (concluding that an initiative precluding discharge of mining 

waste that causes “ ‘adverse effects’ to humans, salmon, and waters used for human 

consumption or as salmon habitat” was not an appropriation). 

66 Holleman, 321 P.3d at 381-85 (upholding referendum that would repeal 

municipal ordinance intended to reduce the Municipality of Anchorage’s labor costs). 

67 See McAlpine, 762 P.2d at 87-91 (striking from initiative a provision 

requiring the University of Alaska to transfer the amount of property “commensurate 

with that occupied and operated by the Community Colleges on November 1, 1986”). 

68 See Alaska Action Ctr., v. Municipality of Anchorage, 84 P.3d 989, 994-95 

(Alaska 2004) (invalidating initiative limiting the use of a particular area of municipal 

(continued...) 

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69 70 public resource; (4) require the sale of specified public assets; or (5) require voter 

approval for any public expenditure of funds within a particular class.71 Additionally, 

an initiative that regulates the use of public assets may not “result in the allocation of an 

asset entirely to one group at the expense of another.” 72 These cases also suggest that a 

limitation on legislative discretion is only an “appropriation” where the limitation would 

restrict a plausible legislative choice.73 

The effect of 12BBAY is similar to that of the initiative at issue in City of 

Fairbanks in that it ultimately gives the legislature more discretion whether to approve 

a particular mining project. In City of Fairbanks an existing ordinance allocated the use 

68(...continued) 

land). 

69 See Pullen v. Ulmer, 923 P.2d 54, 64 (Alaska 1996) (invalidating initiative 

establishing preferences for subsistence, personal, and recreational users in salmon 

fishery). 

70 See Staudenmaier v. Municipality of Anchorage, 139 P.3d 1259, 1260-63 

(Alaska 2006) (upholding municipality’s rejection of initiative requiring the municipality 

to sell specified public utility assets). 

71 See Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 

273 P.3d 1128, 1137-38 (Alaska 2012) (invalidating initiative requiring voter approval 

for all Borough capital expenditures in excess of one million dollars). 

72 Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 

1064, 1077 (Alaska 2009). 

73 See Pullen, 923 P.2d at 64 (holding that initiative setting user preferences 

in salmon fishery was an appropriation because it would limit the Board of Fisheries’ 

discretion to make allocation decisions in times of shortage and “there is a very realistic 

danger that such shortages will occur”); McAlpine v. Univ. of Alaska, 762 P.2d 81, 91 

(Alaska 1988) (concluding that limiting legislature’s discretion to eliminate all 

appropriations for community colleges was permissible because there was no realistic 

danger that the legislature would attempt to do so). 

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of hotel tax revenue and the initiative would have returned complete control of that 

revenue to the City Council.74 In the present case an extensive set of statutes and 

regulations governs mining, and the legislature has delegated permitting decisions to 

DNR. 12BBAY would alter that scheme by returning final decision-making authority 

to the legislature for proposed “large-scale metallic sulfide mining operation[s] located 

within the watershed of the Bristol Bay Fisheries Reserve.” 

12BBAY is also distinguishable from each case where this court has 

invalidated an initiative on the basis that it interferes with the legislature’s control over 

resource allocation. Unlike the initiative at issue in McAlpine, 12BBAY would not direct 

the use of “an ascertainable and definite amount of state assets.”75 While 12BBAY 

would regulate resource use in an identified geographic area, it does not set that area 

aside for a particular use as the initiative in Alaska Action Center would have.76 

12BBAY does not require the sale of any public assets and does not require voter 

approval for any expenditure of public funds. 77 Finally, contrary to Hughes’s assertion, 

12BBAY does not attempt to allocate any state assets to one user group to the exclusion 

of another. 78 Adding an additional regulatory step for large-scale mining projects may 

or may not benefit the fishing industry and burden a segment of the mining industry, but 

74 818 P.2d 1153, 1154-55 (Alaska 1991). 

75 762 P.2d at 89. 

76 84 P.3d 989, 995-96 (Alaska 2004). 

77 See Staudenmaier v. Municipality of Anchorage, 139 P.3d 1259, 1263 

(Alaska 2006); Alliance of Concerned Taxpayers, Inc. v. Kenai Peninsula Borough, 

273 P.3d 1128, 1137-38 (Alaska 2012). 

78 See Pullen, 923 P.2d at 64 (invalidating initiative that would have 

established preferences for subsistence, personal, and recreational users in salmon 

fishery). 

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it certainly does not “result in the allocation of an asset entirely to one group at the 

expense of another.”79 And, ultimately, the legislature retains the discretion to make the 

necessary findings and decisions. 

12BBAY undeniably would alter the legislature’s existing scheme for 

allocating and regulating the use of the state’s mineral resources. But this court 

concluded in Pebble Limited Partnership that there is no prohibition on initiatives 

altering existing public resource regulations.80 An initiative violates the antiappropriation clause of article XI, section 7 only when it “controls the use of public 

assets such that the voters essentially usurp the legislature’s resource allocation role.”81 

12BBAY does not cross that line. Because the legislature would retain ultimate control 

over allocation of state assets, 12BBAY is not an appropriation. 

B.	 12BBAY Does Not Violate Article XI, Section 7’s Local And Special 

Legislation Clause. 

Hughes argues that 12BBAY violates the local and special legislation 

clause of article XI, section 7 of the Alaska Constitution. He asserts that there is no 

legitimate basis for 12BBAY’s narrow geographic scope. The State responds that 

12BBAY is not unconstitutional under this court’s interpretation of article XI, section 

7’s local and special legislation prohibition as articulated in Pebble Limited Partnership. 

Both article XI, section 7 of the Alaska Constitution and AS 15.45.010 

prohibit enacting local or special legislation by initiative. This prohibition is absolute. 

Article XI, section 7 provides that “[t]he initiative shall not be used to . . . enact local or 

79 See Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 

1064, 1077 (Alaska 2009) (citing Pullen, 923 P.2d at 63-64). 

80 Id. 

81 Staudenmaier, 139 P.3d at 1263 (citing Alaska Action Ctr., 84 P.3d 

at 994-95). 

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special legislation.” 82 We apply a “two-stage analysis for determining whether proposed 

legislation is ‘local or special legislation’ barred by article XI, section 7.”83 We first 

consider “whether the proposed legislation is of general, statewide applicability.”84 If 

the initiative is generally applicable, the initiative will not enact local or special 

legislation and the inquiry ends.85 If the initiative is not generally applicable, we move 

on to consider whether the initiative nevertheless “bears a fair and substantial 

relationship to legitimate purposes.”86 We have explained that this standard is analogous 

to our most deferential standard of equal protection review.87 

The parties agree that 12BBAY is not generally applicable. We agree and 

therefore next consider whether 12BBAY “bears a fair and substantial relationship to 

82 This contrasts with article II, section 19, under which a legislative act that 

is “local or special” may still be constitutional, so long as a general act could not have 

been made applicable. Hughes argues that 12BBAY is local or special legislation 

because the initiative could have been drafted to apply statewide. But neither article XI, 

section 7, nor any other source of authority in Alaska, suggests that an initiative would 

enact local or special legislation simply because it could have been drafted to apply 

statewide. Article II, section 19 implies that local or special legislation may be 

permissible where a general act could not have been made applicable, but that provision 

does not apply to initiatives. While the substantive provisions of these two constitutional 

provisions differ, the analysis they use to determine whether particular legislation is 

“local or special” is the same. 

83 Pebble Ltd. P’ship, 215 P.3d at 1078. 

84 Id. (citing Boucher v. Engstrom, 528 P.2d 456, 461 (Alaska 1974), 

overruled on other grounds by McAlpine v. Univ. of Alaska, 762 P.2d 81, 85 (Alaska 

1988)). 

85 Id. 

86 Id. at 1079 (quoting State v. Lewis, 559 P.2d 630, 643 & n.44 (Alaska 

1977)) (internal quotation marks omitted). 

87 Id. (citing Boucher, 528 P.2d at 461). 

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legitimate purposes.”88 12BBAY’s purpose is to protect “Bristol Bay wild salmon and 

waters within or flowing into the existing 1972 Bristol Bay Fisheries Reserve.” We 

conclude there is no serious question that requiring legislative approval of large-scale 

metallic sulfide mining operations in the Bristol Bay watershed bears a fair and 

substantial relationship to that purpose.89 Thus, we must consider only whether 

protecting “Bristol Bay wild salmon and waters within or flowing into the existing 1972 

Bristol Bay Fisheries Reserve” comprises a legitimate purpose. We conclude that it 

does. 

The superior court determined that protecting the Bristol Bay fishery is 

legitimate because the legislation creating the Bristol Bay Fisheries Reserve had the same 

purpose and applied to the same geographic area as 12BBAY. The court stated that “[i]n 

effect . . . , [Hughes’s] attack on 12BBAY as local and special legislation is really a 

misdirected attack on the creation of the fisheries reserve in 1972” and that “[t]here is 

nothing in Alaska constitutional jurisprudence that authorizes a collateral constitutional 

attack on an existing statute in the guise of a pre-election challenge to an initiative that 

does not seek to revise the existing statute.” 

Hughes argues that the superior court erred by concluding that 

AS 38.05.140(f) justified 12BBAY’s special treatment of the Bristol Bay watershed. He 

suggests that the correct question is “whether the narrow classification drawn by the 

legislation that is actually at issue is fairly and substantially justified.” As discussed 

above, the issue here is whether protecting the Bristol Bay fishery comprises a legitimate 

purpose, not whether it is “fairly and substantially justified.” While we conclude that 

88 Id. (internal quotation marks omitted). 

89 The record indicates that large-scale metallic sulfide mining has real 

potential to affect water quality and fisheries. 

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AS 38.05.140 is relevant to whether 12BBAY’s purpose is legitimate, we reject the 

superior court’s conclusion that AS 38.05.140 is dispositive of that question. Under the 

court’s reasoning, the purpose of any initiative that relies on the unchallenged 

classification or geographic scope of an existing and unchallenged statute with a similar 

purpose would be per se legitimate. Nothing in our jurisprudence supports such a rule. 

Hughes argues there is no legitimate economic or biological basis for 

limiting 12BBAY to the Bristol Bay watershed. His argument suggests that the 

initiative’s geographic scope must be justified by detailed economic or scientific 

findings. But such a requirement would not be consistent with our deferential “legitimate 

purpose” test. In State v. Lewis it was sufficient that legislation allowing a specific land 

transfer was “designed to facilitate statewide land use management and to resolve a host 

of pressing legal issues arising in the context of [the Alaska Native Claims Settlement 

Act].”90 In Baxley v. State it was sufficient that the oil and gas leases singled out for 

modification had unique characteristics that could incentivize lessees to abandon the 

fields before extracting all of the oil, thus implicating the state’s interest in maximizing 

oil production.91 

As the superior court discussed in its decision in this case, the legislature 

recognized the importance of the Bristol Bay fishery by establishing the Bristol Bay 

Fisheries Reserve in AS 38.05.140(f). This statute mandates that oil and gas leases or 

exploration licenses may “not be issued on state owned or controlled land [within the 

reserve] until the legislature by appropriate resolution specifically finds that the entry 

90 559 P.2d 630, 643-44 (Alaska 1977). 

91 958 P.2d 422, 430-31 (Alaska 1998). 

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will not constitute danger to the fishery.”92 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. For example, the initiative 

sponsors provided a report extensively documenting the economic importance of the 

Bristol Bay salmon industry, which concluded that Bristol Bay has the world’s most 

valuable wild salmon fishery. The initiative sponsors also provided a report discussing 

the potentially significant impacts of a proposed large-scale mining project on the Bristol 

Bay wild salmon ecosystem. 

Hughes’s argument and the expert reports that he relies on paint a picture 

of the Bristol Bay fishery as comparatively less economically and biologically important 

than several other fisheries in the state. But even if this were correct, the Bristol Bay 

fishery does not need to be the most important or best fishery in the state to justify 

targeted legislation. Rather, it merely needs to have some unique statewide importance 

that justifies geographically limited legislation.93 Even Hughes’s economist, Dr. Michael 

Taylor, points to factors that distinguish Bristol Bay from the state’s other salmonproducing regions and also show its significance to the state as a whole. For example, 

Bristol Bay possesses a particularly high incidence of sockeye salmon relative to other 

salmon species.94 Its salmon enter the supply chain through different markets than other 

state fisheries — particularly Japan, China, and Russia — thus contributing to Alaska’s 

92 AS 38.05.140(f). 

93 See Baxley, 958 P.2d at 430-31. 

94 Bristol Bay also has the vast majority of sockeye (red) salmon statewide; 

chum and pink salmon represent the majority of the harvest in Prince William Sound and 

Southeast Alaska. A significant loss of salmon in Bristol Bay would therefore 

particularly affect the state’s sockeye salmon population. 

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Asian-Russian export market. Bristol Bay has a significantly compressed harvest 

window,95 with correspondingly low employment stability. Dr. Taylor states that 

“[c]ompared to other regions in Alaska, the Bristol Bay salmon fishery is an economic 

engine,” even though much of the economic benefit favors non-residents. The total 

annual average (2008-2012) of gross earnings by salmon permit holders was 

approximately $143,000,000 for Bristol Bay, $94,000,000 for Southeast Alaska, and 

$93,000,000 for Prince William Sound. Excluding gross earnings by non-resident permit 

holders, the annual averages for these three regions were approximately $61,000,000 

(Bristol Bay), $56,000,000 (Southeast Alaska), and $71,000,000 (Prince William 

Sound). 

According to a report prepared by the University of Alaska Anchorage’s 

Institute of Social and Economic Research titled “The Economic Importance of the 

Bristol Bay Salmon Industry,” 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.” The report states that in 2010 “harvesting, processing, and retailing 

Bristol Bay salmon and the multiplier effects of these activities created $1.5 billion in 

output or sales value across the United States.” “Between 2005 and 2010, Bristol Bay 

averaged 67% of total sockeye salmon harvests (by volume) . . . .” In 2010, Bristol Bay 

salmon fishing and processing employed an estimated 4,369 Alaska residents. 

We conclude 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 

95 The commercial fishing season is six to eight weeks in Bristol Bay, but 

most of the run occurs in just two weeks. This contrasts with fisheries in Prince William 

Sound and Southeast Alaska, where the harvest windows are longer by a month or more. 

Other fisheries that have higher incidence of coho or chum salmon may have several 

months more of harvest as well. 

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state as a whole. We also conclude that 12BBAY’s purpose — to protect “Bristol Bay 

wild salmon and waters” — is legitimate. And we conclude that 12BBAY bears a fair 

and substantial relationship to the initiative’s legitimate purpose. 

The sponsors of 12BBAY certainly could have proposed an initiative of 

statewide application, but instead they chose to focus on a very important fishery in a 

single region. As we explained in Pebble Limited Partnership, however, “legislatures 

routinely must draw lines and create classifications.”96 As in the equal protection 

context, “we are guided by the familiar principles that a statute is not invalid under the 

Constitution because it might have gone farther than it did, that a legislature need not 

strike at all evils at the same time, and that reform may take one step at a time, addressing 

itself to the phase of the problem which seems most acute to the legislative mind.”97 

Applying these principles, we conclude that 12BBAY permissibly distinguishes the 

Bristol Bay watershed and its salmon fishery and does not violate the Alaska 

Constitution’s prohibition on local or special legislation. 

V. CONCLUSION 

For the reasons discussed above, we AFFIRM the superior court’s summary 

judgment order in favor of the State and the initiative sponsors. 

96 Pebble Ltd. P’ship ex rel. Pebble Mines Corp. v. Parnell, 215 P.3d 

1064, 1081 (Alaska 2009) (internal quotation marks omitted). 

97 Id. (internal quotation marks omitted). 

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