Court Says AK Town Can’t Ban Big Mining

(CN) - The Alaska Supreme Court found a voter-approved initiative that bans large-scale mining activities is an overreach of the borough's authority.

The high court's ruling, filed July 17, affirms a lower court opinion.

Initiative sponsors George Jacko and Jackie Hobson, Sr. appealed the earlier decision, which barred Lake and Peninsula Borough from enforcing the voter-approved mining ban.

In 2011, Jacko, Hobson and other borough residents proposed an initiative that would prevent the borough's planning commission from issuing a permit that "could result in excavating, placement of fill, grading, removal and disturbance of the topsoil of more than 640 acres of land" and "will have a significant adverse impact on existing anadromous waters".

Lake and Peninsula Borough lies in southwest Alaska and borders a large salmon fishery, a primary source of revenue. Within the borough and on state-owned land lies a substantial amount of undeveloped copper ore, its mineral rights held by Pebble Limited Partnership.

Extracting the copper would likely create significant waste, of concern to the borough and its thriving salmon industry.

The initiative also required prospective miners to obtain a development permit from the borough prior to obtaining state and federal permits - the opposite of the way permitting usually works.

Before the initiative, Pebble sued claiming the borough had exceeded its legislative power with its permitting process. The trial court declined to rule in that case until voters passed the initiative, which they did in October 2011.

Pebble then amended its complaint, alleging the initiative was preempted by the Alaska Constitution and the Alaska Land Act. The state joined the suit since the initiative would have "a profound effect on the regulatory climate in Alaska" - not to mention the state's royalty and tax revenues.

The trial court found in favor of Pebble and the state, holding that the initiative would have a "dissuasive effect on potential investors" and Alaska's ability to regulate mining, since the state's department of natural resources is the gatekeeper of mining permits in The Last Frontier.

Jacko and Hobson argued that the dispute was unripe and that the trial court's reasoning for disallowing the initiative was erroneous, but the high court found that since the initiative impedes on the Alaska Land Act and potentially affects exploration, development and mining of state resources, it is unenforceable.

The high court said the conflict between "the state articulates a concrete harm stemming from the initiative's mere enactment, and because the controversy is primarily legal, not factual, in nature."

Writing for the high court, Justice Joel Bolger said the borough's initiative - with its ability to veto mining projects authorized by the state's department of natural resources "seriously impedes the regulatory structure of the Alaska Land Act."

"The Legislature has granted DNR 'charge of all matters affecting exploration, development, and mining of the mineral resources of the state.' Because the 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. Accordingly, the Initiative cannot be enforced," Bolger wrote.

Anchorage-based Pebble has experienced its share of litigation related to its mining pursuits. In early 2015 the company appealed the Environmental Protection Agency's plans to block its bid for a permit to mine a pebble deposit near Alaska's Bristol Bay.

This past month, a federal judge dismissed three out of four of the company's claims in a separate case alleging that the EPA conspired to block gold and copper mining plans.

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