StructureSpot

By Andrew Jensen
Alaska Journal of Commerce

Another ballot battle over Pebble mine is brewing.

The “Save Our Salmon” initiative was certified May 30 to be placed on the Lake and Peninsula Borough ballot this October after initiative backers turned in a petition claiming more than 300 signatures, well above the required amount and comparable to the 384 total votes counted in the October 2010 borough elections.

Unlike the statewide Prop 4 aimed at large metallic mines bigger than 640 acres that failed to pass in 2008 after the most expensive initiative campaign in Alaska history, the setting this time around is in the borough where the Pebble deposit lies just west of Iliamna.

Pebble Limited Partnership, which unsuccessfully sued to keep Prop 4 off the ballot in 2007 before ultimately losing its case before the Alaska Supreme Court in 2009, is again challenging the validity of an initiative it believes is solely targeted at stopping its mine project.

While it makes some changes to the appeals process for permitting decisions, the main thrust of the Save Our Salmon initiative adds language to the Lake and Pen permitting code that states: “Where a resource extraction activity could result in excavation, placement of fill, grading, removal and disturbance of the topsoil of more than 640 acres of land and will have a significant adverse impact on existing anadromous waters, a development permit shall not be issued by the (planning) commission.”

The initiative also changes the preferred order in which permits are applied for. Current code requires that an applicant seeking a borough permit must have already secured all state and federal permits.

The initiative strikes that language and states that, “the applicant should obtain its development permit from the borough prior to obtaining state and federal permits.”

Lake and Pen Borough Clerk Kate Conley approved the language of the initiative April 7, and Pebble filed its challenge May 13 to her decision. George Jacko and Jackie Hobson Sr., the lead sponsors of the initiative, were granted intervenor status to join the defense of the initiative and filed a motion June 1 requesting summary judgment to keep the measure on the October ballot.

The initiative sponsors are represented by Scott Kendall and Timothy McKeever of Holmes Weddle & Barcott of Anchorage. Art Hackney, who was campaign coordinator for the failed Prop 4 initiative, is leading the public relations efforts on the new effort. Pebble opponent Bob Gillam is supplying financing to the tune of $250,000 so far this year, according disclosures filed with the Alaska Public Offices Commission.

Pebble is represented by Matt Singer and Howard Trickey of Jermain Dunnagan and Owens of Anchorage. The borough is represented by Aisha Tinker Bray and Jim DeWitt of Guess and Wood of Fairbanks.

In a new twist, law firm Trustees for Alaska filed a friend of the court brief June 1 on behalf of Nunamta Aulukestai (a coalition of Native village corporations opposed to Pebble mine) alleging that striking the initiative from the ballot would violate the Voting Rights Act.

The brief asserts that Pebble “would have this court disenfranchise hundreds of votes of Alaska Natives protected by the Voting Rights Act by denying them the ability to cast a vote on an initiative that has been lawfully certified by the borough clerk.”

Although the legal challenges have been filed with the 3rd District Court in King Salmon, oral arguments will take place June 23 in Anchorage.

The initiative sponsors have requested summary judgment in their favor without pre-election review of the measure’s validity. While stating the borough acted properly in certifying the initiative in its response to Pebble’s suit, Lake and Pen does not object to pre-election review.

“In the event the borough erred … the significant resources of the borough and its residents, both for and against the initiative, can be saved by pre-election review,” the Lake and Pen response states, “… if the borough acted properly, as it believes, little is wasted by pre-election review …”

Pebble asserts in its challenge to the initiative that the change in order of permits makes the proposal unenforceable as a matter of law because the borough has neither the expertise nor resources to properly consider a project application that figures to be altered multiple times as it goes through state and federal permit processes.

Sponsors of the initiative counter in their motion for summary judgment that applying for the borough permit first is simply a recommendation, and is designed for the benefit of the applicant “to spare an applicant the delay, cost and annoyance from obtaining all other necessary permits — a time-consuming process — only to be required to change their project to meet the borough’s standards.”

An initiative being enforceable as a matter of law is one of four standards a municipal ballot initiative must meet under state statute. The others are: it relates to a single subject; it is legislative and not administrative in nature; and it is not special legislation.

With the Alaska Supreme Court having already rejected Pebble’s nearly identical arguments about special legislation in the Prop 4 case — although Pebble’s attorneys counter that case is different because it is a local, not statewide, issue and even more specifically targeted at Pebble than was Prop 4 — the battle over the Save Our Salmon initiative could turn on enforceability and the legislative vs. administrative question.

The standard for deciding the legislative vs. administrative question was established in 2009 by the Alaska Supreme Court in the Swetzof vs. Philemonoff case, which revolved around an initiative in St. Paul that would have required the city to quit its electric utility business.

In adopting a test used by courts in Kansas, Montana and New Mexico, the Alaska Supreme Court relied on three guidelines for determining whether an initiative is administrative or legislative.

“An ordinance that makes new law is legislative; while an ordinance that executes an existing law is administrative,” states the first guideline. “Permanency and generality are key features of a legislative ordinance.”

The second guideline states: “Acts that declare public purpose and provide ways and means to accomplish that purpose generally may be classified as legislative. Acts that deal with a small segment of an overall policy question generally are administrative.”

The third guideline states: “Decisions which require specialized training and experience in municipal government and intimate knowledge of the fiscal and other affairs of a city in order to make a rational choice may properly be considered as administrative, even though they may also be said to involve the establishment of policy.”

In deciding Swetzof and allowing the initiative to appear on the St. Paul ballot, the Alaska Supreme Court stated that the third guideline (which would appear relevant in the current issue considering the SOS initiative amends language governing the borough planning commission) should not supersede the first two guidelines.

The Supreme Court found that the initiative to require the city to stop selling electricity was indeed a new policy and therefore legislative, and provisions to give the city time to apply to the Regulatory Commission of Alaska to quit the utility gave the tools that made it enforceable as a matter of law.

The sponsors of Save Our Salmon assert the initiative is new policy for the borough and therefore legislative in nature, but that is unclear both from a reading of the Lake and Pen planning code and the sponsors’ own motion for summary judgment.

On page 20 of the sponsors’ motion, it states the initiative seeks to prevent destruction of salmon abundance — “the very goal to which the borough’s development code is already dedicated.” (emphasis theirs)

But on Page 25, the sponsors state, “Prohibiting certain large scale resource extraction activities that will have a significant adverse impact on anadromous waters is new law taking the borough in a new policy direction.” (emphasis theirs)

The purpose section of the SOS initiative states, “The Act is necessary because salmon is a renewable resource which supports both the economy and subsistence lifestyle of the residents of the Borough.”

According to the current planning code for the borough, one of the purpose and balance objectives is, “ensuring that short-term economic gains are not made at the expense of long-term stability and continued productivity of coastal habitats and resources.”

Under administrative policies, the borough code states that, “Maintenance and enhancement of fish habitat will be given the highest priority when evaluating projects which may impact fish spawning, migration, rearing, and overwintering areas.”

In the same section, under policy for anadromous fish waters, the code states, “no development activities, alteration of vegetation, excavation, placement of fill, or land clearing shall take place within a minimum distance of 100 feet from the ordinary high water mark of anadromous fish waters unless feasible and prudent alternatives are not available, and the protection of water quality and stream habitat can be assured.”

The code goes on to lay out additional standards for preserving fish habitat and water quality regarding solid discharges and mining waste known as tailings: “The Borough and appropriate state agencies shall not consider any reduction in water quality standards for industrial use in locations where coastal habitats, fish and wildlife resources, or public uses and activities are dependent on the maintenance of higher water quality standards.”

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