Mining News: Courts deem SOS Initiative unenforceable

Alaska Supreme Court agrees that authorities provided by anti-Pebble measure would ‘Balkanize’ state natural resource policies

Shane Lasley

Mining News

Alaska’s highest court says the Lake and Peninsula Borough does not have the authority to enforce the ordinance resulting from the “Save Our Salmon” initiative passed by voters in 2011.

The SOS Initiative, passed by Lake and Peninsula Borough voters in 2011, would have prohibited borough planners from issuing a permit to any project that would disturb more than one-square-mile of topsoil would be determined to have a “significant adverse impact” on waters supporting salmon.

While the SOS Initiative was aimed directly at preventing the development of Pebble, Alaska’s courts say the borough ordinance resulting from the ballot measure usurps permitting authorities reserved to the state.

“(B)ecause the initiative purports to give the borough veto power over mining projects on state lands within its borders, it seriously impedes the implementation of the Alaska Land Act, which grants the Department of Natural Resources ‘charge of all matters affecting exploration, development, and mining’ of state resources,” Alaska Supreme Court justices explained in a July 17 ruling.

Before the measure went before voters, the state of Alaska and Pebble Partnership argued that any borough ordinance resulting from the anti-Pebble initiative would be deemed unconstitutional and unenforceable because it seeks to restrict development of state-owned resources on state lands.

Anchorage Superior Court Judge John Suddock, who heard Alaska and Pebble’s argument, allowed the initiative to go on the ballot – determining it was best to consider the constitutionality of a resulting Lake and Peninsula Borough ordinance after the election.

In 2014, Suddock determined that the regulatory power given to the borough through the initiative violates state law.

In his ruling, the judge said the local authority provided by the SOS Initiative would result in an unruly fragmentation of Alaska’s natural resource policies.

“Such a grant of power to local governments would Balkanize state natural resource policy,” Suddock penned in his decision.

In response to the lower court judgment, the Pebble Partnership said, “This ruling will assure that permitting decisions are made through the state’s comprehensive process, which includes ample opportunity for input from local people as well as stakeholders throughout the state.”

Anti-Pebble advocates George Jacko and Jackie Hobson Sr. appealed the lower court ruling on the grounds that the dispute was not ripe for judgment and that Superior Court decision was wrong.

The Supreme Court, however, determined that the harm being bestowed to Alaska’s regulatory authority was enough to make a final decision on the matter.

Looking into the matter further, the high court agreed that the lower court was right in determining that if the SOS Initiative was upheld it would result in a “power shift” in natural resource policy that conflicts with state law.

As a result, the Supreme Court justices that heard the matter deemed the SOS Initiative unenforceable.