Ordinance shot down for superseding state


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The “Save Our Salmon” initiative billed as a way to stop Pebble mine was struck down March 19 in state Superior Court when Judge John Suddock ruled the Lake and Peninsula Borough ordinance unconstitutionally preempts state control over natural resources management.

In his 29-page ruling, Suddock wrote that by “conferring gatekeeper permitting authority” of the state’s natural interests to the Department of Natural Resources, the “Legislature implicitly prohibited local governments from assuming a concurrent role.”

He also referred to the initiative as a “co-equal permitting scheme” in his brief.

The Lake and Pen ordinance was passed on Oct. 4, 2011, by a 37-vote margin. The state then sued the borough on Oct. 28, 2011, claiming it was unconstitutional that the new planning and zoning rule required a borough permit be obtained for mining operations larger than 640 acres before applying for state or federal permits.

State law requires legislative action to prohibit a specific activity on parcels larger than 640 acres.

Article VIII of the state constitution states that, “The Legislature shall provide for the utilization, development and conservation of all natural resources belonging to the state, including land and waters, for the maximum benefit of its people.”

In early 2012, Pebble Limited Partnership, the venture leading the exploration of what is one of the world’s largest copper-gold deposits near Iliamna Lake in the Lake and Pen borough, joined the state’s suit as an intervening plaintiff. The Pebble Partnership unsuccessfully attempted to prevent the ordinance from appearing on the 2011 Lake and Pen Borough ballot.

The ordinance requires the borough assembly to deny a mining permit for projects that “will have a significant adverse impact on existing anadromous (salmon) waters.” It was promoted as the “Save our Salmon” initiative during a widespread campaign in support of the rule.

During oral arguments last September, borough attorneys tried to distance the ordinance from the campaign led by non-affiliated groups that inferred the 2011 vote was a referendum on large-scale mining in the borough.

Judge Suddock did not go as far as to characterize the ordinance as a large mine ban in his ruling, but he wrote, “That the SOS initiative exerts a dissuasive effect on potential investors seems inarguable.

The final September hearing in the case came just days before London-based Anglo American Plc, which held a 50 percent share in Pebble, announced its intent to withdraw from mine project after investing roughly $540 million of its $1.5 billion earn-in requirement.

Northern Dynasty Minerals Ltd. of Vancouver, the remaining holder in Pebble interests, has said it is seeking another investment partner before moving ahead with planning and permitting of its claims.

Pebble issued a written statement following the Suddock’s ruling: “The decision holds up the sanctity of the State of Alaska’s robust permitting process, one that has strict environmental standards for fish, water and wildlife. 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.”

Attempts to reach borough attorneys about plans to continue the matter in court were unsuccessful.

The Superior Court decision might ultimately do little for the Pebble Partnership after the Environmental Protection Agency announced Feb. 28 it would invoke its seldom-used authority under the Clean Water Act to begin a process that could preemptively block the mine.

The agency determined that, based on its Bristol Bay Assessment released in January, the “Pebble mine would likely have significant and irreversible negative impacts on the Bristol Bay watershed and its abundant salmon fisheries,” according to EPA Administrator Gina McCarthy.

Clean Water Act Section 404 wetlands permits are typically issued by the Army Corps of Engineers, but the EPA retains veto power over permit applications. If that power is used to block Pebble it would be the first time it has been used before a wetlands permit application has been submitted.

During arguments, state and Pebble attorneys also argued that the small borough government — a seven-member assembly and six full-time staff — could not effectively rule on complex permits for a massive mine.

Lake and Pen does not currently have any environmental experts on staff qualified to review a mine plan, but the borough said it would keep staff on retainer if the ordinance were upheld.

Elwood Brehmer can be reached at elwood.brehmer@alaskajournal.com.

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