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Jacko v. State

Supreme Court of Alaska

July 17, 2015

STATE OF ALASKA, PEBBLE LTD. PARTNERSHIP, acting through its General Partner, PEBBLE MINES CORP., LAKE & PENINSULA BOROUGH, and KATE CONLEY, in her official capacity as Clerk of the Lake & Peninsula Borough, Appellees

Appeal from the Superior Court of the State of Alaska, Third Judicial District, Dillingham, John Suddock, Judge. Superior Court Nos. 3DI-11-00053 CI and 3AN-11-11833 CI (Consolidated).

Timothy A. McKeever and Scott Kendall, Holmes Weddle & Barcott, P.C., Anchorage, for Appellants.

Joanne M. Grace and Margaret Paton Walsh, Assistant Attorneys General, Anchorage, and Michael C. Geraghty, Attorney General, Juneau, for Appellee State of Alaska.

Matthew Singer, Holland & Knight LLP, Anchorage, for Appellee Pebble Limited Partnership.

No appearance for Appellees Lake & Peninsula Borough and Kate Conley.

Victoria Clark, Trustees for Alaska, Anchorage, for Amicus Curiae Nunamta Aulukestai.

Daniel L. Cheyette, Bristol Bay Native Corporation and Peter Van Tuyn, Bessenyey & Van Tuyn, LLC, Anchorage, for Amicus Curiae Bristol Bay Native Corporation.

Before: Winfree, Stowers, and Bolger, Justices. [Fabe, Chief Justice, and Maassen, Justice, not participating.].


Page 338

BOLGER, Justice.


Lake and Peninsula Borough voters passed an initiative prohibiting large-scale mining activities that have a " significant adverse impact" on anadromous waters within the Borough. Pebble Limited Partnership and the State of Alaska pursued separate suits against the Borough, later consolidated, claiming that the initiative was preempted by state law. Two of the initiative sponsors intervened to support the initiative. The superior court granted summary judgment in favor of Pebble and the State and enjoined the Borough from enforcing the initiative. The initiative sponsors appeal, arguing that the dispute is unripe and that the superior court's preemption analysis was erroneous. But because at least the State has articulated a concrete harm stemming from the initiative's mere enactment, the case is ripe for adjudication. And because the initiative purports to give the Borough veto power over mining projects on state lands within its borders, it seriously impedes the implementation of the Alaska Land Act, which grants the Department of Natural Resources " charge of all matters affecting exploration, development, and mining" of state resources. We therefore affirm.


The Lake and Peninsula Borough (the Borough) is a home rule borough in southwest Alaska bordering the world's largest wild sockeye salmon fishery. Within the Borough, on state-owned land, lies what may be the world's largest discovery of undeveloped copper ore. Pebble Limited Partnership (Pebble) holds the mineral rights to this copper and has spent over a decade exploring the feasibility of mining. However, because extracting the copper would likely generate significant amounts of waste, there is concern that the Pebble project may have detrimental environmental effects that could impair the long-term sustainability of the Borough's salmon industry.[1]

In March 2011 George Jacko, Jackie Hobson, Sr., and other Borough residents proposed the " Save Our Salmon" Initiative #2 (the SOS Initiative), a borough initiative prohibiting the Borough Planning Commission from issuing a permit whenever a proposed resource extraction activity (a) " could result in excavation, placement of fill, grading, removal and disturbance of the topsoil of more than 640 acres of land," and (b) " will have a Significant Adverse Impact on existing anadromous waters." The SOS Initiative defined " Significant Adverse Impact" as

a use, or an activity associated with the use, which proximately contributes to a material change or alteration in the natural

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or social characteristics of a part of the state's coastal area and in which:
a) the use, or activity associated with it, would have a net adverse effect on the quality of the resources of the coastal area;
b) the use, or activity associated with it, would limit the range of alternative uses of the resources of the coastal area; or
c) the use would, of itself, constitute a tolerable change or alteration of the resources within the coastal area but which, cumulatively, would have an adverse effect.

The SOS Initiative also replaced the requirement that an applicant obtain " [a]ll applicable state and federal permits . . . before a development permit will be issued by the Borough" with the recommendation that an " applicant should obtain its development permit from the Borough prior to obtaining applicable state and federal permits." Additionally, the SOS Initiative authorized the Borough Planning Commission to indefinitely consider applications for large-scale resource extraction permits.

Before the 2011 election, Pebble sued the Borough for declaratory and injunctive relief, contending that the SOS Initiative exceeded the Borough's " power to legislate on matters governing land use permit requirements" and was thus " unenforceable as a matter of law." Pebble asked the superior court to order the Borough not to certify the SOS Initiative and to remove it from the ballot. George Jacko and Jackie Hobson, Sr. (the sponsors) moved to intervene, and the superior court granted their motion. Pebble, the Borough, and the sponsors moved for summary judgment, but the court ...

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