Among the four ballot initiatives Alaskans will weigh in on this November, Ballot Measure 4 — the Bristol Bay Forever Initiative — is both the least talked about (at least in urban areas far removed from Bristol Bay) and least understood. Additionally, the complex legislation does not lend itself to an electorate trained on bumper sticker political campaigns.
According to those who oppose the effort, Ballot Measure 4 would essentially empower environmentalists to run wild, securing the 36,388 perimeter of the Bristol Bay Fisheries Reserve (BBFR) with copious rolls of red tape, preventing any resource extraction projects from moving forward. Specifically, this means the Pebble Mine. To proponents of the measure, the initiative would add one more protective procedural layer designed to protect half of the world’s wild salmon supply — a $1.5 billion dollar renewable resource to the state of Alaska. Specifically, an extra layer of protection against the Pebble Mine.
The proposal seeks to amend state statute to require legislative approval as the final step in permitting processes for any large scale metallic sulfide mining operation in the Bristol Bay region. The BBFR was established by the legislature in 1972, and was enacted to protect salmon in the Bristol Bay region from oil and gas development. Although the legislation initially included a provision to include protections pertaining to mining, the final bill signed by Governor Jay Hammond did not feature language to that effect. Ballot Measure 4 supporters would like to update the law to include such protections, which they say would force mining projects to play by the same rules as oil and gas companies.Image courtesy Renewable Resources Coalition.
Yesterday in Juneau, Lieutenant Governor Mead Treadwell (R-Alaska) held the third of eight public hearings on Ballot Measure 4. Last week, hearings were held in Kotzebue and Barrow. Future hearings will take place in Ketchikan, Kodiak, Anchorage, Fairbanks, and Dillingham. The hearings are required by a 2010 law requiring that each judicial district of the state be afforded two or more opportunities to learn about initiatives appearing on the ballot.
Tuesday’s meeting was brief; only one hour, with just a single participant in the public testimony portion of the event.
Representing the pro-Ballot Measure 4 side was Anders Gustafson, Executive Director of the Renewable Resources Foundation. During his opening statements, Gustafson emphasized that the reserve produces half of the world’s wild salmon supply. He said that if the state’s action in 1972, creating the reserve, was to protect the fishery from oil and gas projects that presented a risk to Alaska’s wild salmon, it’s logical to enact similar protections against large scale mining projects deemed a similar risk. He noted that the proposal would not affect mining projects outside the region and is not retroactive.
“We think that that is worth protecting as a long term renewable resource for the state of Alaska,” Gustafson said, “and worth an extra level of review before we would put it at risk.”
Alicia Amberg, speaking on behalf of the Alaska Miners Association against the initiative, said that there already were sufficient regulations in place, on both a state and federal level. She said that requiring the added approval of the legislature turned the process political, and also cited concerns about the initiative’s constitutionality.
It’s not the first time constitutional questions have come up. When considering the certification of the ballot initiative, Treadwell was confronted with a letter from Attorney General Michael Geraghty, citing two such concerns. The first is an issue of the separation of powers, held in both the U.S. and Alaska Constitutions.
“[T]he nature of this bill makes it vulnerable to a separation of powers challenge, although we note that any duly-enacted law is ultimately subject to the governor’s veto power,” Geraghty opined. He conceded, however, that the 40 years in which similar requirements for oil and gas development in the region had been on the books, there has not been a court challenge along those lines.
Also in question is a possible violation of the Takings Clause in the Fifth Amendment to the U.S. Constitution (and in Article 1, Section 8 of the Alaska Constitution). When the government seizes property, it must pay just compensation. If the legislature were to deem a mining operation unsafe for the BBFR and nix it, the owner of the vested mineral rights might be found entitled to such compensation.
Such issues of constitutionality, however, are projections. They will ultimately have to be adjudicated by the courts. Alaska
has a very stringent threshold for certifying ballot initiatives, demanding that they go to the ballot unless a clear constitutional prohibition is present. Geraghty, evaluating the two possible constitutional vulnerabilities, determined they did not satisfy that requirement. He ultimately recommended certification.
Treadwell offered two additional concerns. First, he posited that it was not clear when a large scale mining project in the BBFR would trigger legislative approval. The initiative only states that “a final authorization must be obtained from the legislature[.]” The intent seems to suggest that this would come after all other permitting requirements have been attained. Treadwell said that any large dig site will bring unexpected situations. Maybe, he offered as an example, someone unexpectedly finds storm drainage somewhere it wasn’t expected. “Does that require the legislature to come back and approve again?”
Gustafson said that there was no end to hypothetical avenues one could go down when projecting how the law might play out, but said that the intent was to provide “a general rule of reasonableness.”
“At the point a project is fully and finally defined, how big, where it is,” he responded, “that’s where the legislative approval would begin to take place.”
If the scope of a project is significantly changed, Gustafson estimated, that would trigger additional legislative approval. But if the adjustments are small and insignificant, that wouldn’t be considered a reasonable impact warranting legislative approval. That determination would have to be made by the courts.
Court involvement prompted Alaska Miners Association President, Jason Brune, to interject. Brune said that any challenge could result in a referendum. A point Treadwell picked up on:
There is a timing issue though. Let’s suppose that a mine was approved. You know, [the Department of Natural Resources] had gone through the process. The legislature didn’t meet until the following January, so that may be a six month delay… And then, at that point, you’ve got this subject to the legislature, and then 30 days it could be a referendum that can then hold off — the referendum is at the next statewide election, which could be two years away. So, you’re possibly building in a three year delay in the permitting process.
Although precariously positioned atop a slippery slope and strapped to a sled, this is the strongest argument against Ballot Measure 4; that it creates a never-ending cycle of procedural stalling of development projects, and that this eventually evolves to include projects outside of the BBFR (though that last part could not happen legally within the confines of this initiative).
Gustafson countered with the strongest argument supporting Ballot Measure 4, responding: “I don’t care how long it takes. Because this fishery should be around forever. And if it adds a few months, so be it.”
He disagreed with Brune and Amberg about the spread of the protections put in place, should the measure be enacted, to projects outside the Bristol Bay region.
“The creep argument to me is very much something you typically hear in any resource argument from pro-development sides. But here, in this case, we actually have proof that it’s been here for 40 years and not crept anywhere,” Gustafson responded. “Isn’t Bristol Bay worth reviewing? Isn’t that important enough to us where we shouldn’t consider that a burden?”