Case of Hammond and Fischer illuminates a bad law
The state of Alaska and the Pebble Partnership are using an Alaska law passed in 2003 to attempt to recoup almost $1 million in legal fees from plaintiffs in a lawsuit -- including former Alaska first lady Bella Hammond and founding father Vic Fischer -- and to dig into their personal finances.
Why? The plaintiffs lost a lawsuit against the state, in which they contended the Department of Natural Resources failed to give adequate public notice and conduct a "best-interests finding" before allowing the Pebble Partnership exploratory permits for its mining project in Western Alaska.
Superior Court Judge Eric Aarseth ruled that the state was not required to give public notice or produce a best-interests finding because the exploration permits didn't constitute a "disposal" of state lands. The judge said it was reasonable to conclude that Pebble could drill and use state waters without substantial harm, and restore them to their previous condition.
Further, he ruled that the action by Hammond, Fischer and company did not meet all the criteria for a public interest lawsuit -- and thus they could suffer the "losers pay" consequences of an Alaska law passed in 2003 at the request of then-Gov. Frank Murkowski.
The purpose of that law is clear -- to discourage lawsuits against development projects in Alaska. To avoid the risk of "losers pay," potential public-interest litigants must meet three criteria: The suit must not be frivolous, it must be about a constitutional issue and the plaintiffs must not have any "economic stake" in the outcome.
In this case, Aarseth found that the suit first easily met the first two criteria but questioned the economic interests element. He decided to allow the state and Pebble to go after the plaintiffs for legal fees and costs, and they have.
We see two issues here:
• The first is the law itself. The law stacks the deck against almost any public-interest lawsuit. The law's criteria are strict but its definition of economic interest is broad, encompassing far more than a direct personal or business economic stake in an issue.
The situation boils down to this: Sue us and we just might bankrupt you. Our pockets are deep -- and full of public money. How about yours?
The Daily News and other media outlets have declined to pursue public records and open meetings cases against a secretive state government precisely because of this law. That's good for the government; it's not good for the public.
This law needs amending. No reasonable person wants the waste of frivolous legal action. But citizens should have recourse to the courts on public issues without the risk of ruin if they lose. This tilts the scales of justice too far in the direction of corporate and state power.
• The second is the action of the state and Pebble based on this law. Yes, they can seek to recoup their losses from Bella Hammond, Vic Fischer and Nunamta Aulukestai, a group of Alaska villages. But should they?
But the plaintiffs didn't sue Pebble. They sued the state. Pebble stepped into the suit voluntarily, to protect their direct economic interests. Pebble's argument is that their involvement was necessary, that if the plaintiffs won, no project could reasonably get underway in Alaska. That's at least debatable. What this means is that any citizens or group of citizens that sued the state could find itself up against an array of companies willing and able to outspend and outlawyer them, and then, if the plaintiffs lost, present them with the bill.
It's one thing for the state to disagree, on a matter of policy, with Hammond, Fischer and others. The law is not always clear and sometimes you need a court to settle a dispute.
But it's a different matter to slap them with six-figure legal bills and a deep look into their personal finances. That's punitive, and a message to those who would sue the state. It's the wrong thing to do to two Alaskans with long records of service to the state, but we'd apply the same principle to any Alaskan who challenged the state on a public issue in good faith.
The state and Pebble chose not to win this round with grace. They deserve the backlash.
BOTTOM LINE: State, Pebble wrong to use bad law to soak losing litigants.