Alaska Conservation Foundation, the Alaska Supreme Court and the Role of Foundations in Supporting Advocacy Work

May 30, 2015

Jeff ClarkeJeff Clarke, CEO

Philanthropy plays a crucial role in strengthening our democracy. Out of Anchorage, Alaska comes an important example. While some in philanthropy have watched this unfold, the proceedings have moved forward with relatively little notice from the wider sector. It’s the story of Alaska Conservation Foundation’s funding of community groups who challenged the constitutionality of actions by the State of Alaska. This in turn spawned a legal process that threatened to undermine the very basis on which philanthropy’s role in strengthening democracy rests. It’s also a story of bold leadership; a refreshing antidote to philanthropy’s generally mild embrace of and commitment to advocacy.

Losing a Court Challenge and a Threat to Nonprofit Donors Everywhere

Over the past six years, litigation over the proposed Pebble Mine in western Alaska’s Bristol Bay region has been working its way through Alaska’s courts. In July 2009, a coalition of tribal entities, village corporations and individuals called Nunamta Aulukestai filed suit challenging the constitutionality of the process by which the state permitted exploration activities at the proposed mine site over the past two decades.

In September 2011, an Anchorage Superior Court judge ruled in favor of the state. The ruling found that the state did not violate the state constitution and, under a “loser pays” statute, recovery of legal costs could be sought if certain underlying conditions were met. The State claimed and the court agreed that Nunamta Aulukestai had an economic incentive to bring its original suit, thus leaving it open to legal cost recovery. The State of Alaska, joined by Pebble Limited Partnership, the proposed mine’s developer, subsequently filed suit against Nunamta Aulukestai to recover $1,000,000 in legal costs.

The State and Pebble Limited Partnership further asserted that Nunamta Aulukestai’s original suit had been bankrolled by environmental activists, including foundations. Based on this assertion, Alaska Conservation Foundation was subpoenaed to provide its donor lists which include foundations, corporations and individuals. It subsequently refused, observing “as a nonprofit foundation, if we allowed this to go forward it would have a really chilling effect on any foundation wanting to support organizations that bring public-interest litigation.”

Appeal and Victory

Alaska Conservation Foundation and Nunamta Aulukestai appealed to the Alaska Supreme Court. Among those who filed briefs on behalf of Alaska Conservation Foundation were some notable environmental organizations. But supporters also included Council on Foundations, ACLU of Alaska Foundation, Alaska Legal Services Corporation, Native American Rights Fund, Northern Justice Project and Planned Parenthood of the Great Northwest.

Last Friday, the Alaska Supreme Court overturned both Superior Court rulings, concluding the state did, through its actions, violate the constitution and the plaintiffs had no economic incentive in filing the original suit.

In commenting on the decision, Alaska Conservation Foundation Executive Director Ann Rothe said, “The Pebble Partnership argued that the Alaska Conservation Foundation had an economic interest in the outcome of the lawsuit because we awarded grants to the plaintiffs, and they demanded we give them a list of our donors, internal communications regarding our grantmaking to these groups and all materials that mentioned the case, including newsletters, web page updates and any emails referencing the case. The court rejected their argument. It’s an important decision regarding the role of foundations in supporting advocacy work. It encourages our investment in efforts to give Alaskans a voice in decisions that affect them.”

Meanwhile, in Whatcom County

This comes on the heels of a story I shared last month from Whatcom County, Wash. about a proposed county charter amendment to “increase transparency in funding between the county and nonprofits.” The amendment, which would have forced nonprofits doing business with the county to disclose their donors and prohibited them from advocating in the public interest, spurred intense criticism and lawsuits. The author recently withdrew the illegal amendment from consideration.

Missed Opportunities?

Philanthropy brings to its work a set of values that shape a point of view. The resulting diversity is a celebrated hallmark of the sector. Regardless of the inherent range of organizational perspectives on sensitive issues like resource development or public-nonprofit partnerships, should we not breathe a collective sigh of relief that both resolved themselves in the manner they did? We should also recognize them for what they were: local efforts to undermine the role and voice of the independent sector. Certainly there will be more attempts to do so in the future. If we believe our most important work is to advance the public good to build resilient, equitable and inclusive communities, did Philanthropy Northwest and its community miss an important opportunity to publicly stand with Alaska Conservation Foundation and nonprofits in Whatcom County respectively?