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Court decision on mining initiative expected soon

August 8th 6:59 pm | Margaret Bauman Print this article   Email this article   Create a Shortlink for this article

Alaska Supreme Court justices have granted a motion from the Pebble Limited Partnership to expedite a decision over a Lake and Peninsula Borough ballot initiative that would affect development of the proposed Pebble mine.

The court is still weighing, however, a request by the state of Alaska to participate in the case and a decision on that matter was expected within a few days.

The issue at stake is whether or not the citizen initiative from Alaskans for Bristol Bay should be allowed onto the Oct.4 ballot in Lake and Peninsula Borough.

The so-called "Save Our Salmon" initiative is aimed at prohibiting construction of large scale mining activities within the borough, to prevent adverse impact on dozens of salmon spawning streams. The Pebble Partnership, which has been doing exploration for several years on state lands at the headwaters of the Bristol Bay watershed and plans to apply for permits to mine the site for copper, gold and molybdenum, is not specifically mentioned in the petition.

Alaska Attorney Genera John J. Burns said in a brief filed Aug. 5 that the state has an interest in the case because of potential impact to the state's mineral resources.

Burns questioned whether the proposed initiative is "unenforceable as a matter of law" by virtue of exceeding by initiative what would be within the power of a home rule borough assembly to enact. "The ultimate disposition of this case is likely to have precedential effect," he argued in the brief.

Lake and Peninsula Borough officials responded with a brief, saying they did not oppose the state's request to participate as a friend of the court, while initiative sponsors George Jacko and Jackie Hobson Sr. asked that the state's request be denied, because the state was raising new arguments not argued or considered in the superior court case.

"The appellate rules only allow parties to the underlying proceeding to participate in a petition for review," attorneys for Jacko and Hobson said..

"The state failed to intervene in the lower court proceeding at its own peril, and thereby waived its opportunity to raise those issues in this petition," their attorneys said. "Additionally, even if those arguments are considered, the state has mad no showing that the petition should be granted, Pebble will not suffer any injury to its rights and no injustice will occur if the election is allowed to proceed," they said.

The Pebble Limited Partnership filed an emergency petition with Alaska Superior Court in Anchorage on Aug. 1, seeking a decision by Aug. 15 on whether an initiative affecting development of the proposed Pebble mine should be allowed to go to a vote in the October election.

The Pebble Partnership alleges that the initiative was not well worded and that there are substantive matters and legal matters involved regarding making land use decisions through an initiative rather than a comprehensive planning process, and that there is case law and precedent supporting their arguments.

Jacko, the director of Alaskans for Bristol Bay, called the emergency petition "a blatant attempt by the Pebble Partnership to silence the voices of lake and Peninsula Borough residents."

"With the majority of Alaskans and over 80 percent of local residents opposing the Pebble mine, it isn't surprising the partnership does not want to allow the people a vote," Jacko said.

The Pebble Partnership petition comes in the wake of a July 26 decision by Alaska Superior Court Judge John Suddock to defer a ruling on summary judgment motions for the initiative until after the October election in Lake and Peninsula Borough.

Suddock's decision, handed down July 26, was made available by attorneys on July 27.

Suddock said that for lack of clearly controlling appellate authority establishing the invalidity of this initiative proposal, the court has deferred ruling on all pending motions for summary judgment under after the election.

The initiative would amend the Lake and Peninsula Borough code to preclude granting permits for mining operations of greater than 640 acres that would give rise to a "significant adverse impact" on any salmon stream.

 

Margaret Bauman can be reached at mbauman@alaskanewspapers.com, or by phone at 907-348-2438.

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