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Judge throws out borough ballot measure aimed at fighting Pebble mine

Lisa Demer

An Anchorage judge this week threw out a 2011 Lake and Peninsula Borough ballot measure that aimed to use the borough's powers to block the proposed Pebble gold and copper mine.

It's a significant victory for a project that has taken a series of hits in recent months, including the loss of a main investor, layoffs and actions by the Environmental Protection Agency that could lead to a veto of the mine.

The initiative gave the borough permitting power over any large mine in the borough that would have "a significant adverse impact" on salmon habitat. The borough clerk's office said the final tally showed it passed 280 to 246. Anchorage Superior Court Judge John Suddock used slightly different figures in his order, issued Wednesday.

While state and federal agencies would need to issue around 50 separate permits for the project, the initiative made the small borough - with no permitting office or staff -- the "co-equal" gatekeeper, Suddock said.

Suddock struck down the Save Our Salmon ballot measure, saying that it violated state law that puts the Department of Natural Resources in charge of regulating mining across Alaska.

"This is not a case about the wisdom of developing the Pebble Mine in a salmon-bearing watershed, and the court obviously takes no position on the matter," Suddock wrote. "Rather, it is a case about who is to decide whether Pebble poses unacceptable risks."

The state Legislature gave DNR the authority to issue required permits for mining, and that implies that it didn't intend to give local governments that same authority, the judge wrote.

"Such a grant of power to local governments would Balkanize state natural resource policy," Suddock said.

Pebble Ltd. Partnership, the mine developer, and the state of Alaska had both challenged the initiative, suing the Lake and Peninsula Borough.

"We think this decision is important for establishing the scope of state authority over natural resource development and clarifying the limits of local power to block development," Margaret Paton-Walsh, an assistant attorney general, said in an email Thursday.

A number of borough residents sponsored the initiative and two, George Jacko and Jackie Hobson, intervened in the court challenge to defend it.

Sponsors of the measure said in a written statement that Suddock's ruling was "replete with factual and legal errors" and they may appeal to the Alaska Supreme Court.

"The scope of the decision, which essentially forecloses on any local governmental role in resource development issues, is breathtaking with potential implications for existing laws from Barrow, to Fairbanks, to Juneau," initiative sponsors said.

They said the initiative was intended to give "local voices a seat at the table" and that Pebble's court challenge was an attempt to silence them.

"They may have succeeded temporarily, but the battle for Bristol Bay is far from over," the statement said.

But Pebble said the state's permitting process provides for public notice and comment, while the Save Our Salmon initiative does not.

"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," Pebble said in a written statement.

The measure didn't block the mine directly but could have done so if the borough denied the project a permit. Pebble never applied for a borough permit so in practical terms the initiative has not had any effect. Mine developers also have not sought key state and federal permits yet, or filed a detailed mining plan.

The Lake and Peninsula Borough stretches from Lake Clark down the Alaska Peninsula to Bristol Bay, home of the largest sockeye salmon runs in the world. The proposed Pebble mine would be on state-owned land at the headquarters of two Bristol Bay salmon-producing rivers.

The borough has a year-round population of just 1,600 people and only six full-time employees, according to the description in the order. Its seat is in King Salmon, a commercial and air traffic hub in the neighboring Bristol Bay Borough.

Reach Lisa Demer at ldemer@adn.com, 952-3965 and on Twitter @lisa_demer.

Because of incorrect information from the Lake and Peninsula Borough clerk's office, an earlier version of this story gave the wrong vote totals for the 2011 Save Our Salmon initiative. The initiative passed 280 to 246, not 117 to 82.

 


By LISA DEMER
ldemer@adn.com
Contact Lisa Demer at LDemer@adn.com or on