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, 

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THE SUPREME COURT OF THE STATE OF ALASKA 

ALASKA MINERS ASSOCIATION, 

COUNCIL OF ALASKA 

PRODUCERS, and RICHARD 

HUGHES, 

Appellants, 

v. 

JOHN H. HOLMAN; MARK NIVER;

CHRISTINA SALMON; MEAD 

TREADWELL, LIEUTENANT 

GOVERNOR OF THE STATE OF 

ALASKA; and STATE OF ALASKA,

DIVISION OF ELECTIONS, 

Appellees. 

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) Supreme Court No. S-15885
 

Superior Court No. 4FA-13-01296 CI
 

O P I N I O N 

No. 7180 – June 16, 2017 

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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, 

Holland & Knight LLP, Anchorage, for Appellants. Timothy 

A. McKeever and Stacey C. Stone, Holmes Weddle & 

Barcott, P.C., Anchorage, for Appellees Holman, Niver, and 

Salmon. Notice of nonparticipation filed by Elizabeth M. 

Bakalar, Assistant Attorney General, and Craig W. Richards, 

Attorney General, Juneau, for Appellees Treadwell and State 

of Alaska, Division of Elections. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, 

and Carney, Justices. 

STOWERS, Chief Justice. 

I. INTRODUCTION 

Richard Hughes, Alaska Miners Association, and Council of Alaska 

Producers (Hughes plaintiffs) challenged the certification of a ballot initiative that would 

subject large-scale mining operations in the Bristol Bay region to additional legislative 

approval. It is undisputed that this initiative, if passed, would impact the Pebble Project, 

a potential large-scalemining project intheBristol Bay region. The initiative’s sponsors, 

John H. Holman, Mark Niver, and Christina Salmon (Holman intervenors), intervened 

on the side of the State, and the State and intervenors moved for summary judgment to 

establish the legality of the initiative. The superior court granted the State’s and the 

Holman intervenors’ motions for summary judgment and we affirmed on the merits.1 

The Holman intervenors then moved for full reasonable attorney’s fees as 

constitutional claimants under AS 09.60.010.2 The Hughes plaintiffs opposed, arguing 

1 Hughes v. Treadwell, 341 P.3d 1121, 1134 (Alaska 2015). 

2 AS 09.60.010(c) states in part, 

In a civil action or appeal concerning the
 

establishment, protection, or enforcement of a right under the
 

United States Constitution or the Constitution of the State of
 

Alaska, the court (1) shall award, subject to (d) and (e) of this
 

section, full reasonable attorney fees and costs to a claimant,
 

who, as plaintiff, counterclaimant, cross claimant, or
 

third-party plaintiff in the action or on appeal, has prevailed
 

in asserting the right.
 

AS 09.60.010(d) states in part, 

(continued...) 

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that they themselves were constitutional claimants and that the Holman intervenors were 

notconstitutionalclaimants becausetheywereintervenor-defendants. Thesuperiorcourt 

determined that the Holman intervenors were constitutional claimants. It also found that 

because Pebble Limited Partnership (Pebble) financed at least part of the litigation for 

the Hughes plaintiffs, Pebble was the real party in interest; the court further found that 

Pebble did not qualify as a constitutional claimant because it had sufficient economic 

incentive to bring the action. The court therefore awarded the Holman intervenors full 

reasonable attorney’s fees. The Hughes plaintiffs appeal. We hold that because this case 

is fundamentally about constitutional limits on the ballot-initiative process and not 

whether the Pebble Project should go forward, the Hughes plaintiffs did not have 

sufficient economic incentive to remove them from constitutional-claimant status, and 

we therefore reverse the award of attorney’s fees. 

II. FACTS AND PROCEEDINGS 

This appeal involves an attorney’s fees dispute following a superior court 

decision upholding Lt. Governor Mead Treadwell’s certification of the “Bristol Bay 

Forever” ballot initiative. The initiative was approved to be placed on the November 

2014 ballot. It required additional legislative approval for “a large-scale metallic sulfide 

mining operation located within the watershed of the Bristol Bay Fisheries Reserve.” 

In January 2013 Richard Hughes filed suit against Lt. Governor Treadwell 

and the State of Alaska, Division of Elections seeking declaratory and injunctive relief 

and asserting that the initiative was contrary to the subject matter restrictions in 

2

(...continued) 

In calculating an award of attorney fees and costs 

under (c)(1) of this section, . . . (2) the court shall make an 

award only if the claimant did not have sufficient economic 

incentive to bring the suit, regardless of the constitutional 

claims involved. 

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article XI, section 7 of the Alaska Constitution.3 Hughes also alleged that the initiative 

violated separation of powers. Hughes’s Amended Complaint added as a plaintiff the 

Alaska Miners Association, and his Second Amended Complaint added the Council of 

AlaskaProducers. Theinitiative’s sponsors, John H. Holman, MarkNiver, and Christina 

Salmon, moved to intervene as defendants, and the superior court granted that motion.4 

In February 2014 the superior court granted summary judgment in favor of 

the State and the Holman intervenors,5

 and on appeal we affirmed the superior court’s 

decision.6 

After the superior court entered final judgment the Holman intervenors 

moved for an award of full attorney’s fees and costs, claiming that they were 

constitutional claimants or in the alternative that they were entitled to attorney’s fees and 

costs under Alaska Rules of Civil Procedure 797 and 82.8 The Holman intervenors 

3 See Hughes, 341 P.3d at 1124. Article XI, section 7 provides, 

The initiative shall not be used to dedicate revenues,
 

make or repeal appropriations, create courts, define the
 

jurisdiction of courts or prescribe their rules, or enact local or
 

special legislation. The referendum shall not be applied to
 

dedications of revenue, to appropriations, to local or special
 

legislation, or to laws necessary for the immediate
 

preservation of the public peace, health, or safety.
 

4 Hughes, 341 P.3d at 1124. 

5 Id. 

6 Id. at 1134. 

7 Alaska R. Civ. P. 79(a) provides, 

Unless the court otherwise directs, the prevailing party 

is entitled to recover costs allowable under paragraph (f) that 

(continued...) 

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supported their motion with affidavits from Holman, Niver, and Salmon. All claimed 

that they did not have an economic incentive for pursuing litigation; rather, they asserted 

that they were primarily concerned with protecting their rights to get the initiative on the 

ballot.9 

The Hughes plaintiffs opposed the motion and raised two primary 

arguments: (1) they were constitutional claimants and thus immune from attorney’s fees 

under AS 09.60.010(c); and (2) the statute was intended to protect persons who raised 

constitutional claims against the State but not to protect intervenor-defendants against 

7

(...continued)
 

were necessarily incurred in the action. The amount awarded
 

for each item will be the amount specified in this rule or, if no
 

amount is specified, the cost actually incurred by the party to
 

the extent this cost is reasonable.
 

8 Alaska R. Civ. P. 82(b)(2) provides, 

In cases in which the prevailing party recovers no 

money judgment, the court shall award the prevailing party 

in a case which goes to trial 30 percent of the prevailing 

party’s reasonable actual attorney’s fees which were 

necessarily incurred, and shall award the prevailing party in 

a case resolved without trial 20 percent of its actual attorney’s 

fees which were necessarily incurred. The actual fees shall 

include fees for legal work customarily performed by an 

attorney but which was delegated to and performed by an 

investigator, paralegal or law clerk. 

9 Niver declared that he worked for part of the year as a commercial 

fisherman in Bristol Bay. Holman declared that he owned a sport-fishing lodge in the 

Lake Clark area but that his lodge was about 60 miles from the proposed Pebble Mine 

and that the mine therefore would not impact his business. Salmon declared that she 

engages in subsistence gathering, fishing, and hunting in the Bristol Bay region. 

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private parties.10 In support of their argument that they were constitutional claimants, 

they filed affidavits from Hughes; Deantha Crockett, Executive Director of the Alaska 

Miners Association; and Karen Matthias, Managing Consultant of the Council of Alaska 

Producers. Each disclaimed any economic interest in the litigation. Notably, their 

opposition did not allege that the Holman intervenors had an economic incentive to 

litigate and were therefore not constitutional claimants. They also contended that the 

Holman intervenors’ fees were excessive. 

In their reply brief in superior court, the Holman intervenors asserted that 

the Hughes plaintiffs had economic incentive to bring the action and suggested that 

Pebble was actually the entity paying for the litigation. The Holman intervenors attached 

an affidavit from Scott Kendall, an attorney working for them. Kendall attached a 

number of publications to his affidavit connecting the Hughes plaintiffs to Pebble. 

At oral argument counsel for the Hughes plaintiffs conceded that plaintiffs’ 

litigation fees had been paid for by the Alaska Miners Association, the Council of Alaska 

Producers, and Pebble. He also conceded that Pebble had agreed to indemnify all of the 

named plaintiffs in the event of an adverse attorney’s fees ruling. But he argued that if 

the Hughes plaintiffs’ interests in mining could exclude them from constitutionalclaimant status, then the Holman intervenors’ interests in commercial fishing should 

likewise disqualify them from constitutional-claimant status. 

The superior court awarded full fees to the Holman intervenors in the 

amount of $63,944. The court first concluded that the intervenors were claimants under 

AS 09.06.010(c) because “[their] summary judgment motions sought declarations that 

[the initiative] was constitutional and [they] sought dismissal of [the Hughes plaintiffs’] 

10 The Hughes plaintiffs claimed that the Holman intervenors were not 

“plaintiff[s], counterclaimant[s], cross claimant[s], or third-party plaintiff[s]” under 

AS 09.60.010(c)(1). 

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complaint. [Their] claims were, therefore, in substance, counterclaims to [the plaintiffs’] 

claims: [they] sought the exact opposite result [the plaintiffs] sought.” The court found 

that this was true even though the Holman intervenors failed to raise counterclaims in 

their answer. 

The court next sought to determine whether the Hughes plaintiffs were 

constitutional claimants and therefore exempt from paying fees. The court decided that 

“[t]hey filed non-frivolous constitutional claims on which they didnot prevail and [were] 

subject to paying full, reasonable attorney’s fees and costs only if they had an economic 

incentive to bring the action.” The court then found that they had an economic incentive 

to bring the claim because “[t]he only entity actually paying the intervenors’ fees[, 

Pebble,] will be the entity with an undeniably ‘sufficient economic incentive to file suit 

even if the action involved only narrow issues lacking general importance.’ ”11 The court 

did not make findings whether the Holman intervenors had a sufficient economic 

incentive to preclude constitutional-claimant status. 

The court provided an alternate ruling in the event that on appeal this court 

determined the court was not permitted to consider Pebble’s funding of the litigation. 

The court found that “[the Alaska Miners Association’s] and [the Council of Alaska 

Producers’] affidavits fail to make a prima facie showing of the interests of their typical 

members so that the court can assess the organizational economic incentives.” The 

Council noted only that it was a trade group “representing Alaska’s large metal mining 

industry”; the court found that the Council therefore failed to provide it with sufficient 

evidence to determine the Council’s constitutional-claimant status under 

AS 09.60.010(c)(1). Similarly, the court found that the Alaska Miners Association 

11 (The superior court quoted Citizens Coalition for Tort Reform, Inc. v. 

McAlpine, 810 P.2d 162, 171 (Alaska 1991) (discussing economic incentive under 

former public-interest-litigant doctrine). 

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identified classes of members, but it failed to provide information concerning its 

members’ typical economic interests. The court concluded that the two organizations 

therefore waived their claims to constitutional-claimant status. 

The court next analyzed whether Hughes was a constitutional claimant. 

The court noted that his affidavit disclaimed any economic interest in the litigation and 

that he therefore had made a prima facie showing that he had no financial interest in the 

litigation. But the court concluded that the Holman intervenors “submitted evidence 

tending to rebut [this] prima facie showing.” Because the ongoing relationship between 

Hughes and Pebble was unclear, the court stated that the Holman intervenors would be 

permitted discovery on that issue if this court disagreed with the superior court’s primary 

ruling. Finally, the superior court found that most of the Holman intervenors’ fees were 

reasonable. 

The Hughes plaintiffs appeal. 

III. STANDARD OF REVIEW 

“Interpretation of AS 09.60.010 is a question of law to which we apply our 

independent judgment. When interpreting statutes, ‘[w]e look to “the meaning of the 

language, the legislative history, and the purpose of the statute in question” ’ and ‘adopt 

“the rule of law that is most persuasive in light of precedent, reason, and policy.” ’ ”12 

IV. DISCUSSION 

In 2003the AlaskaLegislaturepassedAS09.60.010(c), whichprovides for 

an award of reasonable attorney’s fees to successful constitutional claimants and an 

12 Alaska Conservation Found. v. Pebble Ltd. P’ship, 350 P.3d 273, 279 

(Alaska 2015) (alterations in original) (first quoting Fancyboy v. Alaska Vill. Elec. 

Coop., Inc., 984 P.2d 1128, 1132 (Alaska 1999); then quoting Krone v. State, Dep’t of 

Health & Soc. Servs., 222 P.3d 250, 252 (Alaska 2009)). 

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exemption from paying attorney’s fees for unsuccessful constitutional claimants.13 This 

statute abrogated and replaced Alaska’s common-law public-interest-litigant doctrine.14 

In crafting the constitutional-claimant provision, the legislature incorporated the 

“sufficient economic incentive” exception that we had earlier developed in our publicinterest-litigant cases15: 

In a civil action or appeal concerning the 

establishment, protection, or enforcement of a right under the 

United States Constitution or the Constitution of the State of 

Alaska, the court . . . may not order a claimant to pay the 

attorney fees of the opposing party devoted to claims 

concerning constitutional rights if the claimant as plaintiff, 

counterclaimant, cross claimant, or third-party plaintiff in the 

action or appeal did not prevail in asserting the right, the 

action or appeal asserting the right was not frivolous, and the 

claimant did not have sufficient economic incentive to bring 

the action or appeal regardless of the constitutional claims 

involved.[16] 

The parties agree that the Hughes plaintiffs sought “the establishment, protection, or 

enforcement of a right under . . . the Constitution of the State of Alaska”; the only 

disagreement concerns the question of “sufficient economic incentive.” The superior 

court ruled that Pebble, and not the named plaintiffs, was the real party in interest and 

that Pebble had “sufficient economic incentive to bring the action.” 

The superior court’s determination that Pebble was the real party in interest 

may have been based on our comment in Alaska Conservation Foundation v. Pebble 

13 Id. at 280. 

14 Id. 

15 Id. at 281. 

16 AS 09.60.010(c)(2). 

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Limited Partnership where we said, “We do not suggest that there never could be a third 

party seeking some direct economic benefit by funding a nominal plaintiff’s 

constitutional litigation, and we agree that in such an instance the third party’s direct 

economic incentive might be relevant to an attorney’s feesaward under AS 09.60.010.”17 

But we have never actually held that a third party could be the real party in interest for 

the purposes of this statute. We do not reach this question today because we hold that 

this case is fundamentally about constitutional limits on the ballot-initiative process and 

that therefore the Hughes plaintiffs did not have “sufficient economic incentive” to 

remove them from constitutional-claimant status. 

This case is the mirror image of Alaska Conservation Foundation. In that 

case individual Alaskans and a non-profit organization sued the State for alleged 

constitutional violations in issuing land and water use permits to Pebble.18 Pebble 

intervened on the side of the State, and the State and Pebble were ultimately victorious.19 

The plaintiffs in that case sought to prove constitutional-claimant status to avoid an 

award of attorney’s fees.20 Pebble sought and the superior court granted discovery to 

determine the plaintiffs’ funding sources.21 We reversed that discovery order.22 

17 Alaska Conservation Found., 350 P.3d at 285.
 

18 Id. at 275.
 

19 Id.
 

20 Id.
 

21 Id. at 276-78. 

22 Id. at 275. 

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We explained that “[e]conomic interest need not take the form of 

damages,”23 but “courts must ‘look to the facts of the case to determine the litigant’s 

primary motivation for filing the suit.’ ”24 We concluded that there was not “sufficient 

economic incentive” because the “case [was] only about constitutional limitations on the 

State’s issuance of land and water use permits to Pebble and not about whether the 

Pebble Project should proceed or whether the Pebble Project may harm Bristol Bay 

fisheries.”25 “We reiterate[d] and emphasize[d] the necessity of direct economic benefit 

from constitutional litigation for ‘sufficient economic incentive’ ” and cautioned that 

“[f]ocusing on the funding of constitutional litigation rather than on the litigation itself 

to determine primary purpose . . . can lead easily to the wrong result.”26 Regardless of 

the sources of their funding, the plaintiffs in Alaska Conservation Foundation qualified 

as constitutional claimants. 

Thesameanalysis applies here. Thiscaseisabout constitutional limitations 

on the ballot-initiative process and not about whether the Pebble Project should proceed. 

The Holman intervenors argue that Pebble had a direct economic incentive to bring the 

action because the initiative “injects uncertainty on the question of whether the Pebble 

Project will ultimately be approved by the legislature.” They note that uncertainty alone 

“can scare off financing and derail the [P]roject at very early stages” and “have an 

immediate impact in the form of lowering the stock prices of companies associated with 

the Project, such as [Pebble].” But we held in Alaska Conservation Foundation that “it 

23 Id. at 282 (quoting Matanuska-Susitna Borough Sch. Dist. v. State, 931 

P.2d 391, 403 (Alaska 1997)). 

24 Id. (quoting O’Callaghan v. State, 920 P.2d 1387, 1390 (Alaska 1996)). 

25 Id. at 284. 

26 Id. at 285. 

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was error for the superior court to look at future possibilities and contingencies well 

outside the contours of the litigation.”27 The same is true here: uncertainty or possible 

future gains or losses do not constitute “sufficient economic incentive to bring the 

action” where the primary purpose of the litigation was to bring constitutional challenges 

to a ballot initiative. 

It is undoubtedly true that requiring legislative approval for the Pebble 

Project will add to the level of uncertainty around the Pebble Project. But we have never 

required that parties seeking constitutional-claimant status — or public-interest-litigant 

status under our former framework — be completely disinterested in the case.28 Doing 

so would likely eliminate the constitutional-claimant rule altogether. This case is 

fundamentally about the ballot-initiative process and not a case about whether the Pebble 

Project should go forward. We have repeatedly underscored the public-interest nature 

of suits involving elections.29 

27 Id. at 284. 

28 See, e.g., Ninilchik Traditional Council v. Noah, 928 P.2d 1206, 1218-19 

(Alaska 1996) (holding that a marginal economic incentive for the litigants did not 

preclude themfromasserting public-interest-litigant status); KodiakSeafoodProcessors 

Ass’n v. State, 900 P.2d 1191, 1193, 1198-99 (Alaska 1995) (holding that seafood 

producers were public interest litigants because they would only benefit from the 

litigation if other administrative barriers were overcome). 

29 See, e.g., Municipality of Anchorage v. Citizens for Representative 

Governance, 880 P.2d 1058, 1062 (Alaska 1994) (“The proposition that our democratic 

society has a strong public interest in fair elections is tautological.”); id. at 1061-63 

(reviewing past public-interest-litigant cases and noting that “a number of cases stand for 

the proposition that normal compensation of an elected office is not sufficient economic 

incentive to defeat the public interest status of an officeholder or candidate seeking to 

vindicate a public interest”). 

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We reiterate and emphasize — again — that direct economic benefit is 

needed for there to be “sufficient economic incentive to bring the action.” Possible or 

speculated impact is not enough. We hold that because this case concerns the 

constitutionality of a ballot initiative, Hughes, the Alaska Miners Association, and the 

Council of Alaska Producers did not have a “sufficient economic incentive to bring the 

action.” Therefore, they are protected from an award of attorney’s fees pursuant to 

AS 09.60.010(c) regardless of the real party in interest and regardless of the economic 

interests of the Alaska Miners Association’s and the Council of Alaska Producers’ 

typical members.30 

V. CONCLUSION 

WeREVERSEthesuperior court’s award offullattorney’s fees to Holman, 

Niver, and Salmon. 

30 We do not reach the superior court’s ruling that it would permit discovery 

into Hughes’s relationship with Pebble. But we again reiterate that “[f]ocusing on the 

funding ofconstitutional litigation rather than on thelitigation itselftodetermineprimary 

purpose . . . can lead easily to the wrong results” and that discovery orders of this nature 

could raise constitutional concerns. Alaska Conservation Found., 350 P.3d at 285. We 

also do not address whether intervenor-defendants can be constitutional claimants under 

AS 09.60.010. It is sufficient for purposes of this case to hold that because the plaintiffs 

were unsuccessful constitutional claimants who did not have a “sufficient economic 

incentive to bring the action,” they are protected from an award of attorney’s fees. 

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