If only it was simple. Pebble Mine. Again.

by

Oct 5

Municipal elections were held yesterday across the state. In my borough we had our results within hours with the exception of an Assembly seat too close to call before absentee ballots are counted. Far flung Lake and Peninsula Borough conducts elections entirely through the  mail  so it will be a bit before we will hear what the outcome of the vote on the so-called Save Our Salmon initiative is.

Lake and Peninsula Borough ballots must be postmarked on or before October 4, 2011 to be valid. At least one village within the borough only gets mail in and out twice  a week, weather permitting, so the window for return of completed  ballots is necessarily wider than it might be elsewhere.

Oct 7

Whatever the outcome of the vote in Lake and Pen is, I’ve learned a lot in the last few months about how we are organized as communities within the state here in Alaska. I kinda, sorta, knew some of it but had never tried to look at all of it with a view towards  competing interests between local and state entities.

For all I’ve learned, I also realize I still know very little.

In March of this year, with permission , we reprinted Initiative Would Halt Large Scale Resource Extraction  from The Bristol Bay Times.

This was the first run at getting an initiative on the Lake and Peninsula ballot . It was not certified for the ballot as it included language which was an obvious attempt to “define the jurisdiction of courts or prescribe their rules” which is prohibited under law governing initiatives and referendums here.

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From Alaska Statutes Title 29, Chapter 26- Elections

 

Article 2. Initiative and Referendum.

Sec. 29.26.100. Reservation of powers. The powers of initiative and referendum are reserved to the residents of municipalities, except the powers do not extend to matters restricted by art. XI, sec. 7 of the state constitution. (emphasis mine) (§ 9 ch 74 SLA 1985

Sec. 29.26.110. Application for petition.
 (a) An initiative or referendum is proposed by filing an application with the municipal clerk containing the ordinance or resolution to be initiated or the ordinance or resolution to be referred and the name and address of a contact person and an alternate to whom all correspondence relating to the petition may be sent. An application shall be signed by at least 10 voters who will sponsor the petition. An additional sponsor may be added at any time before the petition is filed by submitting the name of the sponsor to the clerk. Within two weeks the clerk shall certify the application if the clerk finds that it is in proper form and, for an initiative petition, that the matter

      (1) is not restricted by AS 29.26.100;

      (2) includes only a single subject;

      (3) relates to a legislative rather than to an administrative matter; and

      (4) would be enforceable as a matter of law.

(b) A decision by the clerk on an application for petition is subject to judicial review. (§ 9 ch 74 SLA 1985; am § 9 ch 80 SLA 1989)

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As per restrictions in Section 29.26.100, Article XI, Section 7  of the Alaska State Constitution reads:

7. Restrictions

The initiative shall not be used to dedicate revenues, make or repeal appropriations, create courts, define the jurisdiction of courts or prescribe their rules, or enact local or special legislation. (emphasis mine) The referendum shall not be applied to dedications of revenue, to appropriations, to local or special legislation, or to laws necessary for the immediate preservation of the public peace, health, or safety.

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There was talk at the time that it also attempted to “enact local or special legislation” but the very obvious problem with language about what courts must do was adequate to deny certification.

The second proposed initiative backed off describing what courts must do and focussed on legislating under the borough’s planning powers in a broad enough manner to avoid appearing as “local or special legislation” ( within the meaning that the Pebble Mine was not being targeted specifically but that all resource extraction over 640 acres -1 square mile- was being addressed)   and to the extent that it was certified by the borough clerk.

The Pebble Limited Partnership filed motions for  summary judgment  against allowing the initiative on Lake and Pen’s ballot  for being unenforceable.

The arguments vary but they tend to turn on whether the borough can enforce a law which disallows major resource extraction on state land within the borders of the borough.

In late July, Superior Court Judge John Suddock deferred a ruling on the PLP’s motions for summary judgement.

The Bristol Bay Times reported that :

“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.”

 While this discussion of adverse authority relates to attorney conduct it describes well enough the situation here  in
” the matter must meet three conditions: it must be legal authority, it must be directly adverse, and it must be from a controlling jurisdiction.
 
 to make some sense of what the judge is saying to we everyday people out here.
 
Basically, it appears that there is no clear law or precedent which says the home rule borough may not exercise it’s planning powers in this way. 
 
 
The Alaska Supreme Court order denying PLP’s emergency order for review , after Judge Suddock’s ruling, echos similar concerns about enforceability   in the written concurring response as well as the dissenting response.
Our Supreme Court  does have a policy, as Judge Suddock said, of  hands-off  response  before votes on  initiatives when there is no clear law or precedent at stake.
 
 
It doesn’t mean there are not a myriad of problems to be solved if the initiative passes, both in court when it is challenged ( and it will be if it passes) and in the borough if it is allowed to stand.
 
 Oct 8
 
The Lake and Peninsula Borough is organized as a home rule borough.

Alaska allows home rule boroughs and cities great powers compared to many, many places in America.

The State’s discussion of municipal structure says :

“Home Rule Cities and Boroughs Powers and Duties. While general law local governments in Alaska have broad powers, home rule local governments have even broader powers. Article X, Section 11 of Alaska’s Constitution states that a home rule borough or city may exercise all legislative powers not prohibited by law or by charter. ”

The publication, Local Government in Alaska ,  discusses the various types of municipal government in the state and what each is and can do in readable language, as does  the Alaska’s Constitution, a Citizen’s Guide   which  describes the law in readable terms with further explanation of what our Constitution’s framers had in mind when they wrote it.

Article X of the constitution which addresses local governments starts on internal document page number 161, pdf page 175.

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 From our Constitution:

Section 1. Purpose and Construction

The purpose of this article is to provide for maximum local self-government with a minimum of local government units, and to prevent duplication of tax-levying jurisdictions. A liberal construction shall be given to the powers of local government units.

from pdf page 177 of the Citizen’s Guide :

“The second sentence of this section is included to thwart the restrictive and narrow interpretation of this article that the courts and the legislature might be tempted to give it by the weight of tradition, most notably the longstanding judicial doctrine that local governments are powerless to act in the absence of delegated authority. Known as Dillon’s Rule, it asserts:

[A] municipal corporation possesses and can exercise the following powers and not others. First, those granted in express words; second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation—not simply convenient, but indispensable

(Merriam v. Moody’s Executors, 25 Iowa 163, 170, 1868).

The convention delegates wanted local governments to get the benefit of the doubt in disputes over their power to act. In fact, the Alaska Supreme Court has used this section to make close calls in favor of municipalities…”

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The explicit  enunciation in our state constitution that local government units be afforded a liberal construction of their powers is unusual  and important.

The discussion about home rule powers starts on pdf page  183.

These things will be important to understanding what happens next in Lake and Pen  after ballots there are counted.

There is so much emotion involved in the very idea of the proposed Pebble mine. Personally, the non-plan plan, whatever the game PLP is playing with whether they have a plan or not is, makes me deeply sad and disappointed that we have not figured out how to deal with the true costs of mining of the proposed-non-proposed  scope of Pebble as it relates to fisheries in particular, other resources in general.

 I have enormous respect and sympathy for Lake and Pen’s citizens and their quest to halt the PLP’s whatever -it -is plan ( Boy, am I tired of the we-haven’t-submitted-a-plan-so-how-can-you-be-against-it crap . Whatever it is they are doing is TOO much mine  in the wrong place !)

I’m not sure this initiative is the way to do it  for a variety of reasons but  I am  sure my neighbors there are very, very serious about their desire to stop the proposed Pebble Mine.

We’ll see what happens next.

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