Updated March 20, 2014, 10 a.m.
Alaska Superior Court Judge John Suddock Wednesday granted Pebble Limited Partnership and the State of Alaska's requests for summary judgment in their suit seeking to invalidate a 2011 citizens' initiative that would have limited large mine permitting in the Lake and Peninsula Borough -- the local government within which the proposed Pebble Mine sits -- at the local level.
In a 29-page decision, Suddock ruled that the Lake and Peninsula Borough's 2011 "Save Our Salmon" ballot initiative violates state law. The initiative, he wrote, "effectively mandates co-equal borough and state permitting authority as to mining activities potentially adverse to salmon streams." In fact, parties to the litigation, Suddock wrote, agree that the initiative was marketed to voters as a Pebble Mine ban. The state granted the authority to permit mines to the Department of Natural Resources, he wrote; this initiative would give a local government the power to "ignore DNR's rulings," a power not held by any state agency.
"Such a grant of power to local governments would Balkanize state natural resource policy," Suddock wrote.
Known as the "SOS Initiative," the ballot measure sought to amend Lake and Peninsula Borough code to prohibit permitting for mines larger than 1 square mile that would have a "significant adverse impact" on waters populated by salmon. (The site of the proposed Pebble Mine measures roughly 4.5 square miles.)
Pebble filed a complaint challenging the initiative in May 2011, before the election, but the court put off a decision until after the vote. Borough voters approved the measure by a 37-vote margin, after which the state of Alaska got involved, filing for a declaratory judgment finding the initiative unconstitutional. The cases were consolidated in 2012.
In his ruling, Suddock said the initiative "forecloses the state's due exercise of its natural resources authority."
"This is not a case about the wisdom of developing Pebble Mine in a salmon-bearing watershed, and the court obviously takes no position on the matter," Suddock wrote. "Rather, it is a case about who is to decide whether Pebble poses unacceptable risks." The authors of the Alaska Constitution, he said, gave that power to the state, not to local governments.
Pebble spokesman Mike Heatwole said that the ruling was "clearly good news."
"We're pleased that the judge really took into account some of the arguments we made, including that it was really not a lawful ordinance," he said. "Unfortunately, we had to go through the cost of a campaign, but at the end of the day, the judge's decision validated the state's permitting process to judge and evaluate a project like ours."
Suddock's ruling requires the borough to cease enforcement of the code implemented by the initiative. Attorney Scott Kendall, who represents the initiative's sponsors, said his clients are "extremely disappointed" in the ruling.
"The entire purpose of the SOS Initiative was to ensure that local voices had a seat at the table in any discussion of large-scale mining's impacts on the priceless salmon habitat in the Bristol Bay region," Kendall said in an email. "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."
While Pebble has faced a variety of setbacks unrelated to the SOS Initiative, Kendall said the order has broader implications.
"The scope of the decision, which essentially forecloses on any local governmental role in resource development issues, is breathtaking with potential implications for existing laws from Barrow, to Fairbanks, to Juneau," he wrote.
Kendall said his clients are "currently reviewing all legal options, including seeking review by the Alaska Supreme Court."