Alaskans won't get vote on mining ban

Alaska's Lt. Gov. Sean Parnell has denied an application for a statewide ballot initiative submitted by three Bristol Bay residents who are concerned about the possible development of the Pebble project. Parnell followed the advice of the Department of Law in a June 21 memorandum to deny a vote on the Alaska Clean Water Initiative. The proposed law would have placed sweeping restrictions on the state's mining industry.

The initiative aimed to prevent Alaska's waters from being "adversely impacted" by new large-scale metallic mineral mining operations. It defines large-scale operations as any mine that utilizes or disturbs more than 640 acres of lands or waters. This would include projects such as Pebble and Donlin Creek, the Department of Law noted, and it might also include existing projects - all of Alaska's large mines - when they apply for new permits, modifications to their existing permits, or if their exploration or operation boundaries expand. Red Dog's operator, Teck Cominco, is currently seeking to permit and develop an additional adjacent ore body, for example.

Initiatives can't include appropriations

A ballot initiative in Alaska may not include prohibited subjects, one of which is appropriations. "While the question is not definitively answered through existing case law, it is our view that the bill makes appropriations of state assets by designating the uses of public land and water in certain mining operations. Accordingly, the bill is not in proper form," the Department of Law wrote.

The Clean Water Initiative allocates public land and water resources away from mining, the memorandum says.

It does this with five prohibitions: on the release of any toxic pollutant into surface or subsurface water; on the use of cyanide, sulfuric acid, compounds of cyanide or sulfuric acid or other "toxic agents" within any watershed utilized by humans for drinking water or by salmon; on the storage or disposal of mining waste and tailings that may generate sulfuric acid, dissolved metals or chemicals; on the storage or disposal of mining waste and tailings in or within 1,000 feet of any river, stream, lake or tributary that is used for drinking water or by salmon; and on any activity that causes acid mine drainage or causes heavy metals or dissolved metals to enter such waters.

Releases minimized through regulation

"Most large-scale metallic mineral mining operations in the state involve the release of some amounts of toxic pollutants, as defined in the bill, subject to regulation and water quality standards, into water that is designated and may be used for drinking or by salmon, but the releases are minimized through regulation to the point where concurrent use is possible," the memorandum says. "This first prohibition, however, bars the release of any toxic pollutant into water, and effectively allocates the water amongst competing uses."

For example, state and federal regulations limit cyanide in drinking water to 2 parts per million, the memorandum notes. It also points out that according to the Environmental Protection Agency's consumer fact sheet on cyanide, "cyanides are generally not persistent when released to water or soil, and are not likely to accumulate in aquatic life. They rapidly evaporate and are broken down by microbes."

The issue with the second prohibition is similar to the issue with the first prohibition, the Department of Law said, and releases of toxic agents are closely regulated by the Alaska Department of Conservation and the Environmental Protection Agency. The third prohibition also affects all mines, as they all produce and store wastes. "These materials are regulated by state and federal agencies to meet applicable standards. But under this third prohibition, mine operators could not store or dispose of the materials even with regulation. They simply could not mine," the memorandum says.

The fourth prohibition also prevents mining, as it is unlikely that a large mining operator could locate activities further than 1,000 feet away from any water source, the memorandum notes. Most of the existing metal mines have operations within 1,000 feet of surface waters that could be used either for drinking or by salmon. The situation would be the same for pending projects such as Pebble. The fifth prohibition covers a similar scope to the first two prohibitions, the Department of Law said.

Measure similar to one from 2004

This ballot initiative is similar, from a legal point of view, to another one that was rejected in 2004, the memorandum says. In Alaska Action Center Inc. v. Municipality of Anchorage, an initiative sought to dedicate a certain piece of land in Girdwood as parkland to prevent the municipality from developing it as a golf course. In that case the Alaska Supreme Court ruled that the initiative allocated a resource among competing demands, a decision which voters are not permitted to take via a ballot initiative. The mining initiative is also likely to be appealed to the Supreme Court.