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Pebble Partnership asked court for decision on mining initiative

August 1st 8:05 pm | Margaret Bauman Print this article   Email this article   Create a Shortlink for this article

The Pebble Limited Partnership took further action today to try to head off an October election in the Lake and Peninsula borough that could affect development of the proposed Pebble mine.

The partnership filed an emergency petition with Alaska Supreme Court, pressing for a decision by Aug. 15 on whether an initiative affecting development of the proposed Pebble mine can go to voters in an October election.

Pebble spokesman Mike Heatwole said that the Pebble group wants the issue resolved before the election, rather than afterwards. The Pebble Partnership also 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.

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

Jacko said that "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."

Scott Kendall, an Anchorage attorney representing Alaskans for Bristol Bay, said that the Alaska Superior Court was correct in applying Alaska Supreme court precedent and upholding the right of borough residents to vote on this issue.

Alaskans for Bristol bay is a non-profit organization dedicated to preventing the destruction of the famed wild sockeye salmon fishery.

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.

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.

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.

The initiative also attends this core provision with various administrative changes to borough procedural land-use provisions that the sponsors deem appropriate to implement the overall goal of protecting salmon and their habitat, Suddock noted in his decision.

Plaintiffs in the case, the Pebble Limited Partnership, moved for summary judgment, arguing that the initiative does not qualify for the ballot.

Borough Manager Lamar Cotten said at the time of Suddock's decision that borough officials "are happy that the court upheld the borough's right to hold an election. We think it's important for the public to be involved directly in important public policy matters.

"We recognize that the court refers defers rulings on all pending motions for summary judgment until after the October election, so we will see what unfolds after that and decide from there," he said.

Suddock said the issue of enforceability as a matter of law turns on the applicability of two decisions of the Alaska Supreme Court holding that proposed zoning ordinances could not be enacted via the initiative process. "Both decisions reasoned that the legislatively imposed requirements for participation by land use planning commissions in zoning matters preclude voter initiatives absent such involvement," Suddock wrote.

"But those decisions arise in the context of land use planning statutes applicable to general law municipalities and boroughs, the judge said.

"Those statutes do not apply to a home rule borough such as the borough here," he said.

"Further the two decisions address zoning, rather than more general land use provisions."

Suddock also took into consideration the Alaska Supreme Court announcement of a policy of pre-election judicial deference to initiatives absent controlling adverse authority.

 

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

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