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STOWERS, Chief Justice.
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-scale mining project in the Bristol Bay region. Theinitiative'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.
The Holman intervenors then moved for full reasonable attorney's fees as constitutional claimants under AS 09.60.010.
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 article XI, section 7 of the Alaska Constitution.
In February 2014 the superior court granted summary judgment in favor of the State and the Holman intervenors,
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 79
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 private parties.
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 constitutional-claimant 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'] 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 did not 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.'"
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 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."'"
In 2003 the Alaska Legislature passed AS 09.60.010(c), which provides for an award of reasonable attorney's fees to successful constitutional claimants and an exemption from paying attorney's fees for unsuccessful constitutional claimants.
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 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 fees award under AS 09.60.010."
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.
We explained that "[e]conomic interest need not take the form of damages,"
The same analysis applies here. Thiscase is about 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 was error for the superior court to look at future possibilities and contingencies well outside the contours of the litigation."
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.
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.
We REVERSE the superior court's award of full attorney's fees to Holman, Niver, and Salmon.