Legislative Council OKs lawsuit against Dunleavy for executive order creating Department of Agriculture

Legislators says governor violating state constitution by introducing order already rejected earlier this year; Dunleavy argues no such limit exists

Gov. Mike Dunleavy addresses reporters during a press conference at the Alaska State Capitol on Aug. 2, 2025. (Jasz Garrett / Juneau Independent)

By Mark Sabbatini

Juneau Independent

A lawsuit challenging an executive order by Gov. Mike Dunleavy to form a state Department of Agriculture was authorized Wednesday by the Legislative Council, with members stating the balance of powers under Alaska’s Constitution is at stake.

The motion approved by a 9-2 vote authorizes spending up to $100,000 on litigation challenging Dunleavy’s order issued during a special legislative session in August. That came after the Legislature rejected a similar order in March, and House and Senate leaders stated reintroducing the rejected order was illegal under multiple provisions of the state constitution.

"The issue before us here in this vote really is defending the Constitution and the Legislature's role," Sen. Jesse Kiehl. D-Juneau, said just before the council’s vote. "I believe we should do more (agriculture) work in Alaska. I believe Alaska’s state government has a role to play in making it possible and easier for more Alaska farmers, ranchers and mariculturists to grow more food. That vote for me on the executive order in regular session was a very tough one."

"But that's not the question that's before us…What is before us is the question of whether the second shot at an executive order came in a way that the Constitution allows. I am convinced it did not."

Dunleavy, in an Aug. 2 letter responding to the rejection of his second order, asserts the state’s constitution doesn’t limit when he can issue executive orders. Also, the governor stated, "the Legislature may not decline to accept an Executive Order" — a vote to reject it must occur.

"Please be aware that I will treat this attempt by the Legislature to circumvent the constitutionally mandated process to be legally ineffective," he wrote. "Unless the Legislature convenes in joint session to disapprove the Executive Order as required by Section 23, I will consider it to have become law at the close of the special session and proceed accordingly."

The special session ended Aug. 31 without the Legislature taking any action on the executive order. Jeff Turner, a spokesperson for Dunleavy, told the Anchorage Daily News on Thursday the governor’s position on creating the department via the executive order has not changed. The governor has stated the new department will officially be established as of Jan. 1, 2026.

The Legislature’s challenge is based on assertions made in an Aug. 2 letter co-authored by Senate President Gary Stevens, R-Kodiak, and House Speaker Bryce Edgmon, I-Dillingham. It states the Alaska Constitution "does not authorize reissuance of a rejected executive order in the same legislature" — and since the 34th Legislature that convened in January has already rejected the Department of Agriculture order it cannot be reintroduced until a new Legislature is sworn in more than a year from now.

Also, the legislative leaders’ letter states an executive order cannot be transmitted during a special session, and the constitution "allows the legislature up to 60 days of a regular session to consider whether to disapprove an executive order, and the legislature may not be confined to a maximum 30-day special session to consider disapproval of an executive order."

The state already has a Division of Agriculture within the Department of Natural Resources. Dunleavy has said he is seeking to elevate the agricultural agency to Cabinet-level status to further farming and other related industries.

Some legislators voting in favor of the lawsuit said they aren’t opposed to the creation of the department, but want it achieved by legal means. Legislation establishing the department has been introduced and is likely to be considered when lawmakers reconvene in January.

House Majority Leader Chuck Kopp, R-Anchorage, one of two lawmakers voting against the lawsuit, said he believes it's unnecessary for now because it "appears the administration has de-escalated their push towards creating this department outside of the legislative process."

“I would like to see us not initiate this until there’s some overt action by the administration that clearly indicates their intent to move unilaterally on this issue outside of the legislative process," he said.

Turner did not immediately respond to an inquiry by the Juneau Independent on Friday morning about Kopp’s statement. Rep. Sara Hannan, a Juneau Democrat who chairs the Legislative Council, said Friday morning she has not seen any indications of de-escalation by the administration on the executive order.

The other vote against the lawsuit was cast by Rep. Mike Prax, R-North Pole, who cautioned about the implications for similar situations in the future.

"If we win we would establish a precedent that the Legislature can do something by doing nothing and that just does not seem like a very good practice to have established for any organization," he said.

Kiehl, responding to the concerns voiced by Kopp and Prax, said he trusts "our council won't spend the money and file the suit if it's not needed."

"If the governor does, in fact, de-escalate and take back this statement that was in writing a month or two ago that he was going to act on his own, then we don't have to do this (and) that'd be great," Kiehl said.

Meanwhile "I think it is essential that we authorize it in order to defend the Constitution and the Legislature's role."

• Contact Mark Sabbatini at editor@juneauindependent.com or (907) 957-2306.