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Judge defers ruling on summary judgment on mining initiative

July 27th 6:36 pm | Margaret Bauman Print this article   Email this article   Create a Shortlink for this article

Alaska Superior Court Judge John Suddock has deferred a ruling on summary judgment motions for an initiative on Lake and Peninsula Borough's October election ballot, a measure that could affect development of proposed Pebble mine.

Suddock's decision, handed down July 26, was made available by attorneys today. The so-called "Save Our Salmon" initiative is aimed at prohibiting construction of large scale mining activities within the borough, to prevent adverse impact on dozens of salmon spawning streams. The Pebble Partnership, which has been doing exploration for several years on state lands at the headwaters of the Bristol Bay watershed and plans to apply for permits to mine the site for copper, gold and molybdenum, is not specifically mentioned in the petition.

Suddock said that for lack of clearly controlling appellate authority establishing the invalidity of this initiative proposal, the court has deferred ruling on all pending motions for summary judgment under after the election.

The initiative would amend the Lake and Peninsula Borough code to preclude granting permits for mining operations of greater than 640 acres that would give rise to a "significant adverse impact" on any salmon stream.

The initiative also attends this core provision with various administrative changes to borough procedural land-use provisions that the sponsors deem appropriate to implement the overall goal of protecting salmon and their habitat, Suddock noted in his decision.

Plaintiffs in the case, the Pebble Limited Partnership, moved for summary judgment, arguing that the initiative does not qualify for the ballot.

"We haven't decided what we're going to do at this point," said John Shively, chief executive officer of the Pebble Limited Partnership.

Borough Manager Lamar Cotten said that borough officials "are happy that the court upheld the borough's right to hold an election. We think it's important for the public to be involved directly in important public policy matters.

"We recognize that the court defers rulings on all pending motions for summary judgment until after the October election, so we will see what unfolds after that and decide from there," he said.

Suddock said the issue of enforceability as a matter of law turns on the applicability of two decisions of the Alaska Supreme Court holding that proposed zoning ordinances could not be enacted via the initiative process. "Both decisions reasoned that the legislatively imposed requirements for participation by land use planning commissions in zoning matters preclude voter initiatives absent such involvement," Suddock wrote.

"But those decisions arise in the context of land use planning statutes applicable to general law municipalities and boroughs, the judge said.

"Those statutes do not apply to a home rule borough such as the borough here," he said.

"Further the two decisions address zoning, rather than more general land use provisions."

Suddock also took into consideration the Alaska Supreme Court announcement of a policy of pre-election judicial deference to initiatives absent controlling adverse authority.

At this time the court cannot say there is clearly controlling authority that should govern the clerk's certification of the initiative, he said. For lack of clearly controlling appellate authority establishing the invalidity of the initiative proposal, Suddock then deferred ruling on all the pending motions for summary judgment until the election was over.

 

Margaret Bauman can be reached at mbauman@alaskanewspapers.com, or by phone at 907-348-2438

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