The Alaska Supreme Court is taking a hard look at one of the touchiest debates in Alaska today: mining and clean water.
Their legal conundrum is Ballot Measure 4, an initiative scheduled for the statewide primary ballot in August.
The initiative sponsors, who oppose the controversial copper and gold Pebble prospect in Southwest Alaska, claim their proposed law would prevent large metal-producing mines like Pebble from polluting salmon streams and drinking water supplies.
But the long-running legal argument over what the initiative would actually do -- and whether it is constitutional -- has wound up in the state Supreme Court.
The court has agreed to rule in the case by July 10, so the August ballots can get printed on time.
One thing is clear: There's some ambiguous wording in the initiative, attorneys involved in the case said on Monday when they presented their arguments to the Supreme Court justices in Anchorage.
Does it ban large metal-producing mines from discharging a single molecule of toxic substances -- like arsenic or cyanide -- or does it just block them from discharging a harmful amount of those substances?
The mining industry and the company trying to develop Pebble said the initiative is an outright ban on any discharge and would make it impossible to develop a large metal-producing mine in Alaska. Only the Legislature has the authority to ban someone from using the state's water and the court should strike the initiative from the ballot, they argued.
Not so, said attorneys for the sponsors of the initiative and the state Department of Law. They argued that despite some bad wording, the initiative clearly refers to toxic substances in harmful amounts and it is constitutional.
There's nothing unlawful about creating specific laws for a single industry, like mining or oil, added Michael Barnhill, an assistant attorney general for the state.
Attorneys for the initiative's opponents -- the Council of Alaska Producers, a coalition of mining companies, the developers of Pebble and the Alaska Federation of Natives -- said the state's interpretation is contrary to the actual wording in the initiative.
Tom Amodio, an attorney for the Council of Producers, a coalition of mining companies operating in Alaska, said the "plain language" of several key sections of the proposed law does not say anything about harmful amounts.
The Supreme Court's ruling should clarify this, Amodio said after the hearing.
"That would at least give us certainty going into the election," he said.
Currently, any companies operating in Alaska are allowed to discharge toxic substances if they comply with the state's pollution rules.
One Supreme Court justice asked Monday whether voters would spend a lot of time trying to figure out what the initiative meant.
Jeff Feldman, an attorney representing the initiative sponsors, said he didn't mean to be disrespectful to the other lawyers in the courtroom, but voters wouldn't get hung up on the semantics over whether the initiative refers to harmful amounts or a single molecule.
"Only lawyers would argue about this," Feldman said.
Find Elizabeth Bluemink online at adn.com/contact/ebluemink or call 257-4317.
