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Mining News: One unclear water initiative remains Original anti-mining measure is removed from ballot; Alaskans may get to vote on ambiguous 07WTR3, pending Supreme Court ruling Shane Lasley Mining News
Alaskans will not be voting on the original anti-mining initiative 07WATR during the August 26 primary election. On June 6, the Alaska Supreme Court dismissed an appeal of a lower court ruling that declared the proposal unconstitutional.
A similar initiative, 07WTR3, is still headed to the August ballot, pending a state Supreme Court ruling on its constitutionality, expected before July 10 so that ballots can be printed on time for the primary election.
If 07WTR3 survives the court challenge, opponents of the initiative say Alaskans will be asked to decide the future of mining in Alaska when they cast their vote on Ballot Measure 4.
Earlier, sponsors of 07WATR sent a request to Lt. Gov. Sean Parnell, asking him to remove the initiative from the ballot. The lieutenant governor, however, does not have a mechanism for removing a ballot initiative once signatures have been collected and a measure has been certified for the ballot. In light of the sponsors’ unwillingness to pursue the initiative, Alaska Supreme Court justices dismissed the case.
Supporters of 07WATR said they decided to drop the initiative so they could focus on the “less divisive” and “less stringent” 07WTR3.
07WTR3 lacks clarity 07WTR3, however, will not be less divisive and will require multiple court rulings to determine how stringent it will be, according to Alaska Legislative Legal Services attorney Alpheus Bullard.
In a June 3 report prepared for Rep. Paul Seaton, R-Homer, regarding the initiative’s potential effect on existing statutory and regulatory standards affecting water bodies in Alaska, Bullard wrote, “The mining initiative is not a model of drafting clarity. The initiative’s use of language creates questions as to the scope and applicability of the initiative’s provisions.”
Seaton’s spokesman, Louie Flora, told Mining News that the Homer lawmaker “had heard several different projections of what the initiative would do and he wanted to make sure when constituents asked him, he would be able to give them accurate information.”
The remaining initiative, 07WTR3, includes two regulatory standards directed at large-scale metallic mines. The first standard would regulate the water discharge, and the second one would regulate the storage of metallic mineral mining wastes and tailings.
Depending on how the initiative is interpreted, the standards could range from those set by current State of Alaska water quality regulations to a complete prohibition of water discharge from large-scale metallic mines.
“Given the ambiguity of the initiative’s language, the degree to which these two additional regulatory standards will be interpreted so as to modify the standards that large scale mining operations must comply with under current law is not clear,” Bullard wrote.
Courts likely would determine impact The effects that 07WTR3 will have on existing large-scale mines also are uncertain. The initiative has a provision that excludes existing mining operations that have received all required permits. Since existing mining operations are required to regularly re-apply for and update existing permits as well as obtain new ones to expand infrastructure and facilities or expand operations to adjacent areas not covered under existing permits, a mining operation can never be classified as having all its permits.
“It is unclear to what extent existing mining operations would be impacted in their future operations,” Bullard said. “Existing operations might not be able to expand or build new facilities without becoming subject to the initiative’s provisions.”
The only thing that seems certain is if this initiative is approved by Alaska’s electorate, the courts will be left to interpret what the new law means and how it will be applied to Alaska’s mining industry.
“Because of the ambiguity of the initiative’s language, the complexity of federal and state water quality regulations, and the potential financial and social impact of the measure, litigation concerning its meaning is likely,” Bullard wrote.
The constitutionality of the initiative is currently being challenged in the Alaska Supreme Court. A ruling is expected by July 10 so that ballots can be printed on time for the primary election. The neutral summary printed on the ballots may end up being the “definition” of the measure that future courts will use to resolve litigation.
“Interestingly, in representing what the initiative will do, the neutral summary may increase the chances of the initiative’s legal effect being interpreted by a court in a manner consistent with the summary’s interpretation, yielding a result that might be different from either what an interpretation of the initiative’s text in isolation might have provided or what the measure’s sponsors might desire,” Bullard noted.
Seaton drew a similar conclusion. “Per the legal opinion, it appears that in a way, the “neutral” ballot summary will be what voters are voting on, and we will have to wait to see how the summary will be interpreting what the vote will mean.”
Either way, if the measure is approved by the Supreme Court, Alaskans will be asked to decide the future of mining in Alaska when they cast their votes on Ballot Measure 4.
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