Judge hears arguments on voter initiative that could thwart Pebble

ldemer@adn.comSeptember 11, 2013 

Just as signatures are being gathered for a new ballot initiative that could affect the proposed Pebble mine, an Anchorage Superior Court judge is being asked to throw out the results of an earlier measure that Pebble says is a sideways attempt to kill the controversial project.

Judge John Suddock on Wednesday heard arguments from Pebble and the state on one side, and the Lake and Peninsula Borough and backers of the 2011 Save our Salmon initiative on the other.

Voters in the borough, which includes the site of the proposed giant copper and gold mine, in October 2011 approved the initiative by a margin of a few dozen votes.

If the initiative stands, Pebble probably couldn't be developed, the state has told the judge.

The ballot measure itself didn't mention Pebble or ban mining outright. Rather, it outlawed any mine or other "resource extraction activity" covering more than 640 acres that had a "significant adverse impact" on wild salmon habitat.

Pebble and the state want the judge to strike down the initiative, arguing that it wrongly elevates the borough's role above the state's in oversight of natural resources The borough and the measure's backers say the borough has every right to put in place environmental protections.

"We're not prohibiting mining in the borough. We're prohibiting harm to salmon," Josh Van Gorkom, a lawyer representing the borough, told Suddock Wednesday.

But wasn't the intent of the initiative sponsors to stop Pebble? Suddock asked another of the many lawyers involved. "The operation of an open pit mine is incompatible with people in hip boots."

The sponsors of the initiative, George Jacko and Jackie Hobson, just wanted to "give salmon a seat at the table," answered their lawyer, Scott Kendall.

The political campaign may have "resulted in a lot of hyperbole" but the simple language of the initiative says the borough cannot approve a project that will harm salmon, Kendall said.

How much harm? Suddock asked. Consider the hypothetical case of Pebble applying for a borough permit with an assurance that 95 percent of the salmon on a particular stream will make it through, but nothing it can do will save the other 5 percent.

The state may say that's "good enough for government work." But couldn't the borough call that a "net adverse impact" to wild salmon and forbid the mine? Suddock said.

The impact would have to be material, Kendall said. If only 5 percent of a stream's salmon were lost, that would be "an outstanding outcome."

Some people in the borough oppose the Pebble project. Some back it. And many, he said, are in the middle.

The Pebble Partnership says the deposit in the Bristol Bay region is one of the largest of its kind in the world, with the potential for 80.6 billion pounds of copper and 107.4 million ounces of gold. It could be the largest open pit mine in North America.

The prospect also straddles the headwaters of two rivers that provide a quarter of the world's sockeye salmon.

Already the Pebble Partnership has spent almost $500 million and has yet to apply for development permits, one of its attorneys, Matthew Singer, told the judge Wednesday.

The initiative is unconstitutional, he said after the hearing, because it usurps the Legislature's ability to allocate resources among competing users.

Pebble, he said, wants to protect salmon too.

The state, which filed its own lawsuit protesting the initiative and is now joined with Pebble, notes that the minerals at issue are on state land, and belong to the state. The Alaska Constitution gives "exclusive management authority" over natural resources to the state, said Joanne Grace, a chief assistant attorney general who argued the state's position Wednesday.

The borough can't control the development of state resources on state land, she said.

The Constitution says 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."

But it also says that renewable resources such as fish shall be managed "on the sustained yield principle."

At any rate, the initiative doesn't allocate salmon among competing users such as subsistence and commercial fishermen, Kendall said.

Voters can't zone by petition, the initiative opponents say.

The measure isn't a zoning ordinance -- it is an environmental regulation to protect salmon, and the borough has every right to do that, Van Gorkom said.

More is coming. Signatures are being gathered for a statewide ballot initiative called Bristol Bay Forever that is aimed at the August 2014 primary election. It would require the Legislature to approve any big mine within the Bristol Bay Fisheries Reserve, which includes Pebble. It also is being challenged in court. The state is defending that initiative.

The U.S. Environmental Protection Agency has conducted a study of the risk a large mine would pose on the Bristol Bay watershed. The agency is considering using the Clean Water Act to block the mine.

Regarding the Save Our Salmon initiative, a trial had been set for December. Suddock said there will be no need for that. He is going to decide the case based on the motions before him. The losing side likely will appeal.

Reach Lisa Demer at ldemer@adn.com or 257-4390.

 

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