Judge declares clean-water initiative unconstitutional

Posted: Sunday, March 02, 2008

A Superior Court judge in Fairbanks has ruled a clean-water ballot initiative is unconstitutional because it usurps the Legislature's duty of allocating state resources.

The ruling, announced Friday, could derail development plans for Pebble Mine, a massive gold and copper deposit in southwest Alaska. The mine has pitted the mine's backers against commercial and sport fisherman and subsistence users.

"Initiative law in Alaska requires that the Legislature retain discretion to allocate public assets such as water to all uses, including large-scale metallic mining, and not just to salmon and downstream communities," Judge Douglas L. Blankenship wrote.

Blankenship said banning the water use to large-scale mining "changes the function of water from mining use to only human or fish use and foils the Legislature's role as the sole appropriator under the Alaska Constitution."

The proposed Pebble Mine sits near the world's most productive wild sockeye salmon stream in southwest Alaska. Its development prospects has become one of the state's most divisive resource issues.

The Renewable Resources Coalition has collected signatures in two initiative drives to have voters decide whether to impose several restrictions on large-scale metallic mining operations statewide. The other initiative was upheld by Blankenship.

The initiative that was struck down places five prohibitive measures on mining on operations greater than 640 acres.

One provision includes barring a "mining operation from releasing any amount of toxic pollutant into water that is used for drinking water or by salmon."

Lt. Gov. Sean Parnell, who rules on the validity of ballot initiatives, first rejected the coalition's initiative. But after Superior Court Judge Fred Torrisi rejected Parnell's decision, Parnell approved the ballot language.

In doing so, he then became a defendant in the Fairbanks case whose opponents include the developers of Pebble Mine, estimated to be one of the world's largest ore deposits.

Anchorage attorney Thomas Amodio, who represented the initiative opponent and trade group, the Council of Alaska Producers, says the voters cannot delineate the use of the waters.

"The initiative is making an appropriation of state assets - in this case water," Amodio said. "And you can't do that by initiative.

"The Legislature clearly has the power to make an appropriation or repeal an appropriation, but it's not within power of people by an initiative. It's pretty clearly laid out."

Initiative backer Art Hackney said Renewable Resource Coalition's work is not designed to "preclude mining."

"It sets a standard for how you protect the clean water," Hackney said. "It's the basis for an existing industry - fishing. No standards are in place to protect the existing resource."

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