Politicians: “Stay Out of Alaska’s Business!…unless you’re a major corporation.”

By Hal Shepherd

Alaskans are known for doing things “the Alaskan way”. This philosophy is a carry-over, in part, from that rugged individualism that prompted the original settlers of the region to travel to and then survive here. One of the reasons for seeking statehood was to allow Alaskans to benefit from federal laws designed to protect natural resources and the state’s economy from Outside corporations bent on exploitation of the region’s natural resources. With the discovery of oil in Prudhoe Bay, however, the state became less dependent on economic assistance from the federal government. This, in turn, grew into a desire for independence from federal oversight. 

As such, the state’s relationship with the federal government changed from a sense of partnership into a campaign for preventing interference, primarily in the form of environmental regulations what state politicians fondly, refer to as “federal overreach” that is seen as preventing Alaskans from exploiting the state’s rich natural resources. In his book Battleground Alaska: Fighting Federal Power in America’s Last Wilderness, historian Stephen Haycox says: “Alaskans, particularly the state’s political leaders, have persistently fought environmental protection and regulation in the state while at the same time embracing virtually any economic development project that holds the promise of jobs and alternative contributions to the state’s economy.” 

As a result, the “stay out of Alaska’s business movement” originally directed at corporations, has done a 180 degree about face to the “stay out of Alaska’s business!…unless you happen to be a major corporation” movement. In the summer of 2011, for example, Governor Frank Murkowski withdrew Alaska from the Coastal Zone Management Program which set up local coastal zone management resource area boards (CZMRAB) chartered to oversee permitting standards for resources extraction activities. While Murkowski maintained that the program was eliminated because it caused too much litigation, many members of the now disbanded CZMRABs maintain that it was because the extraction industry believed the Program gave too much control over permitting and environmental protection standards to local interests.

Current, Governor Michael Dunleavy is also known for advancing the interests of Outside Corporations over those of everyday Alaskans. In the fall of 2020, for example, Ron Thiessen of Northern Dynasty, based in British Columbia, and the lead entity in the Pebble Partnership, secretly admitted that, with the support of Dunleavey, the partnership would force state and local governments already facing budget cuts due to the tanking state economy, to fork over$1.5 billion for roads, ports and other infrastructure needed for the Mine. 

The Dunleavy administration also took advantage of the state designated emergency declaration during the COVID-19 pandemic when the state-owned Alaska Industrial Development and Export Authority rushed through funding for the controversial Ambler Mine Road, stating that the project was necessary to save rural Alaskans from the economic crises caused by the pandemic. Due to the expense of the road and the likelihood that it would cause irreparable damage to the Western Arctic Caribou Herd and other subsistence resources, however, the state’s fast-tracking has been called into question by other state political leaders who say that it is giveaway to the Canadian-based Trilogy Metals Inc, which needs the road to develop several mines in the Ambler area.

The final piece of the puzzle in the corporate takeover of Alaska government, however, occurred when our politicians adopted the legal standards a foreign country to exclude the public from going to court to protect the state’s natural and subsistence resources. While other states, for example, use the so called “American Rule,” where each party pays its own way independently, Alaska’s Rule 82 is modeled after the English Rule which makes the losing party responsible for all or a part of the prevailing party’s attorneys’ fees. 

While, at first glance, this standard sounds like an effective means of preventing frivolous litigation by making sure potential plaintiffs believe they have a winnable case before going to court, such a rule actually discourages good faith litigation. In fact, in order to prevent Rule 82 from deterring potential plaintiffs desiring to bring public interest lawsuits, the courts created an exception that would prohibit an award of attorney fees in such cases. 

After extensive political pressure from corporations and other defendants who become alarmed by successful lawsuits filed by citizens, however, in 2003, the Alaska legislature abolished the judicially created the public interest exception with the adoption of HB 145. Legal experts, however, claim that because the Act is clearly intended to discriminate against the general public who might be considering filing good faith environmental protection claims, it violates the concepts of fundamental fairness contemplated by the Bill of Rights and the U.S. Constitution. 

Specifically, in describing the legal obligation of state governments, the Fifth Amendment says that no one shall be "deprived of life, liberty or property without due process of law." Then in the only instance in which a prohibition is stated twice in the Constitution, the Fourteenth Amendment, repeats the identical terms in what has been referred to as the “Due Process Clause.” Due Process, therefore, mandates that before any governmental entity may deprive a citizen of the United States of life, liberty or property, it must provide fair procedures.

In fact, the courts in Alaska have found that access to the judicial system is a fundamental right under the state’s Constitution, when citizens are attempting to protect natural resources and efforts by the government to prevent meaningful access to the courts are therefore, a violation of procedural due process. In fact, the Alaska Supreme Court has found that fairness underlying the right to procedural due process is particularly important in relation to protection of water resources which as in the case of the Due Process clause in the U.S. Constitution, is also mentioned twice in the state constitution as reserved for to the people “for common use” and for “fish and wildlife.” 

While the Alaska legislature maintained that the intent of HB 145 was to prevent courts from discriminating “in the award of attorney fees and costs to or against a party in a civil action or appeal…” some would say what it actually did, was to turn the Due Process Claus on its head. This is based on the fact that, due to the limited ability of the general public to afford the cost of litigation including to pay the other sides attorney fees if they lose, the statute clearly favors corporations over such individuals regarding access to the courts. 

That the statute has had a chilling effect on good faith public interest law case is illustrated by the fact that non-profit organizations have dramatically slowed the filing of public interest lawsuits. In an Alaska Law Review article entitled “The End of The Public Interest Exception: Preventing the Deterrence of Future Litigants with Rule 82(b)(3)(I),” written shortly after the adoption of HB 145, the author observed that:

the Sierra Club, which in the past has filed numerous cases to protect Alaska’s natural resources ‘has not brought a single action in Alaska state court…because there has been no reliable way to predict its potential liability for fee and cost awards.’ Likewise, the Northern Alaska Environmental Center ‘has filed only one non-constitutional case’…which had eight plaintiff organizations to share the burden of any potential adverse fee award.’ The risks for potential plaintiff groups in other contexts are similar.

As an excuse to give major corporations unfettered access to the state’s natural resources, politicians have turned the idea of doing things the Alaskan way into keeping out federal environmental regulations and silencing local residents and the general public when they attempt to enforce and adopt natural and subsistence resource protection policies. Instead of the fallacy of federal over-reach created by Alaska politicians, maybe it’s time that we concern ourselves with corporate over-reach that has occurred with the encouragement of the same politicians.