The Alaska Supreme Court on Friday supported a lower court's decision to nullify the Save Our Salmon initiative that sought to stop the controversial Pebble mining prospect by limiting large-mine permitting in the Lake and Peninsula Borough.
The 2011 initiative, which gave the borough the ability to unilaterally veto a project approved by the state Department of Natural Resources, is unlawful, the Supreme Court said.
The SOS initiative was designed to prevent large-scale extraction that would degrade salmon habitat. It required the borough to deny development permits that would do so, without considering whether that impact can be mitigated, the Supreme Court said.
"This stands in stark contrast to other resource development permitting processes, which compare the adverse impacts of a project with potential mitigation measures," the decision said. "As a result, the borough's permitting standard is now more stringent than the state's."
That would preempt law that puts the state agency in charge of matters affecting exploration, development and mining, the Supreme Court said.
"Because the SOS Initiative allows — and in some cases requires — the borough to prohibit mining projects that would otherwise be authorized by DNR, the initiative seriously impedes the regulatory process set forth by the Alaska Land Act and is therefore preempted by that statute," the Supreme Court said. "Accordingly, the SOS Initiative cannot be enforced."
The case had been appealed after a decision issued last year by Superior Court Judge John Suddock. The appeal pitted initiative sponsors George Jacko and Jackie Hobson Sr. against the state, Pebble Limited Partnership and the borough.
The opinion was written by Justice Joel Bolger. Bolger, as well as justices Daniel Winfree and Craig Stowers, heard the appeal. Chief Justice Dana Fabe and Justice Peter Maassen did not hear the appeal.
Pebble, a massive copper, gold and molybdenum prospect, is located 200 miles southwest of Anchorage in the Bristol Bay region where lakes and rivers support one of the world's top sockeye salmon fisheries.
Mike Heatwole, vice president of public affairs for Pebble Limited Partnership, said the Supreme Court's decision supports Pebble's longstanding argument that the initiative approved by voters violated state law.
"We're pleased the court upheld the law of the state and permitting decisions regarding mineral exploration and development," he said.
The controversial project lost 50 percent partner Anglo American in 2013 when the London mining giant backed out of the project.
Now Pebble Limited, supported entirely by Northern Dynasty, is looking to replace that lost partner, said Heatwole.
It's also battling the Environmental Protection Agency in court to stop the agency from preemptively blocking the project under the Clean Water Act, before the project has had a chance to be reviewed in the permitting process.
"We're still here," Heatwole said of Pebble.
The appellants in the case could not be reached Friday.
Vicki Clark is executive director of Trustees for Alaska, which represented Nunamta Aulukestai, a group of tribal and village entities that had participated as a friend of the court.
"It's unfortunate the court found local communities don't get to have a say over how local resources are developed," Clark said.
"Looking forward, it's even more important now for DNR to develop a very robust process that looks closely at the impacts involved in any big resource project," she said.
Alaska Dispatch Publishing