Judge Strikes Down Lake and Pen "Save Our Salmon" Initiative

Mar 20, 2014

The initiative supersedes the state's constitutionally-backed natural resources policy, according to Judge John Suddock's ruling Wednesday.

Despite all the fuss over the Save Our Salmon Initiative that passed by a narrow vote of Lake and Pen Voters in 2011, the initiative is now officially null and void. That's on account of a ruling from Superior Court Judge John Suddock Wednesday in a three-year-old lawsuit brought by Pebble and the state of Alaska.  KDLG's Dave Bendinger has more:

Audio Transcript:

Pebble and the state of Alaska filed separate lawsuits even before the contentious ballot measure went to the polls in 2011, but Judge John Suddock deferred judgment until after the election.

You may recall that when SOS went to the polls that year it passed by just 37 votes. Who voted in that election was itself the subject of a lawsuit, but putting that aside, when the initiative passed it became law in Lake and Pen, until Judge Suddock's ruling Wednesday.

Here's attorney Matt Singer from the law firm Jermain, Dunnagan, + Owens, which represents Pebble:

"In the conclusion of his decision, he wrote that he was 'enjoining the enforcement' of the SOS Initiative. In plain language, that means the Initiative is void, like it was never passed."

Judge Suddock's 29-page ruling takes a few steps backwards at first, examining Pebble's expected size and potential impacts, the details of which have prompted opponents to try and stop its development.

A 2008 statewide effort to do so, known as the Alaska Clean Water Act, was soundly defeated at the polls. So the 2011 SOS initiative focused on the borough only. It added a separate borough-specific permitting requirement that both the plaintiffs and defendants agreed would be co-equal with the state permits needed for the mine.

You may recall that the ballot's sponsors said early on that SOS was a prudent way of avoiding the lengthy, costly state and federal permitting altogether, since the mine developers could bank on never getting the necessary borough permit.

With their lawsuits now merged, what Pebble and the state of Alaska argued was that the SOS-required permitting superseded the legislature's constitutional authority.

"We have a constitutional mandate to responsibly manage our natural resources," said Singer. "And under the constitution, the legislature has adopted a robust permitting process through the Department of Natural Resources. And what the judge held is that that is the process for determining whether or not a mine should be developed."

Judge Suddock wrote that the SOS Initiative goes beyond "simply tailoring mining processes under the borough's land use authority; it instead forecloses the state's due exercise of its natural resources." He went on to say that granting the kind of power implied under SOS to local governments would "Balkanize" the state's natural resources policy.

As an anecdote, Singer says imagine if any one community along the pipeline passed an ordinance outlawing the pipeline in town:

"That would, you know, could potentially cut off the funding that runs our entire state. As Alaskans, we all have an interest in the responsible management of our natural resources. Not just mines, but oil and gas and fish and all the rest. I think what the judge recognized here is we don't want statewide resources to be regulated and dictated by one special interest group in one part of the state."

The Bob Gillam-backed sponsors of the SOS Initiative were disappointed with Wednesday's ruling. In a written statement, attorney Scott Kendall said the purpose of the initiative was to "ensure local voices had a seat at the table" discussing permitting for mines like Pebble in Bristol Bay. That's a role, they argue, they don't otherwise have.

Kendall said the sponsors strongly disagree with Judge Suddock's ruling and may appeal to the Alaska Supreme Court.

"Through this litigation the Pebble Limited Partnership sought to silence those local voices before they can ever be heard. They may have succeeded temporarily, but the battle for Bristol Bay is far from over," he wrote.

Judge Suddock's striking down of the Save Our Salmon Initiative is final, but the lawsuit isn't entirely closed. Having won the case, the plaintiffs, they being Pebble and the state of Alaska, can now ask the judge to have the defendants, they being the Lake and Pen Borough and several initiative sponsors, pay up to 20% of the legal fees from the three-year-long court battle.

The plaintiffs haven't said yet whether they will seek that compensation or not.