2014-08-28 Work Session Kodiak Island Borough
Assembly Work Session
Thursday, August 28, 2014, 7:30 p.m., Borough Conference Room
Work Sessions are informal meetings of the Assembly where Assembly members review the upcoming regular meeting
agenda packet and seek or receive information from staff.Although additional items not listed on the work session agenda
are discussed when introduced by the Mayor.Assembly,or staff,no formal action is taken at work sessions and items that
require format Assembly action are placed on regular Assembly meeting agenda.Citizen's comments at work sessions
are NOT considered part of the official record.Citizen's comments intended for the"official record"should be made at a
regular Assembly meeting.
Page
1. CITIZENS' COMMENTS (Limited to Three Minutes per Speaker)
2. AGENDA ITEMS
3 - 8 a. Ordinance No. FY2014-20 Decorum Ordinance
ati Procedure, Ordinance, Old Code.pdf
b. Preparation for the Roaming Bears of Fall
9 - 10 c. Update on the KHS Addition and Renovation - Bruce Walters
July 2014 KHS Wilson Report.PDF
KHS Add and Renovation Report - Matt's email .pdf
11 - 12 d. UAF Kodiak Seafood and Marine Science Center Support Letters
Kodiak Seafood and Marine Center Support Letters.pdf
13 - 50 e. Save Our Salmon Initiative Amicus Brief
SOS Attorney's Email.pdf
Amicus Brief- Save our Salmon Initiative.pdf
SOS Resolution to participate in Supreme Court Rulinq.pdf
SOS Ruling 20140319 Final order - Suddock (2).pdf
51 - 52 f. Manager's Office Update to the Assembly
Manager's Update.pdf
3. PACKET REVIEW
a. PACKET REVIEW
NEW BUSINESS
CONTRACTS
Contract No. FY2015-07Aerial Imagery Acquisition.
Contract No. FY2015-14 Approval of the Expenditure Request
for the Scheduled Baler Maintenance.
Page 1 of 52
RESOLUTION
Resolution No. FY2015-06 Urging The Alaska Energy Authority
and Alaska State Legislature to Award Grant Funding for Kodiak
Electric Association's Upper Hidden Basin Diversion Project.
*Resolution No. FY2015-07 Reappointing a Member to the
Kodiak Fisheries Development Association (Albert Schmeil).
ORDINANCES FOR INTRODUCTION
Ordinance No. FY2015-03 Rezoning Lot 2, Block 3, Lakeside
Subdivision From I-Industrial Zoning District To LI-Light Industrial
Zoning District (P&Z Case No. 14-018.)
4. MANAGER'S COMMENTS
5. CLERK'S COMMENTS
6. MAYOR'S COMMENTS
7. ASSEMBLY MEMBERS COMMENTS
Page 2 of 52
AGENDA ITEM #2.a.
KIBC 2.30.070(N) The Assembly may amend, repeal, rescind or reconsider an ordinance by
enacting another ordinance (KIBC 2.30.070(N)).
RESCINDING (KIBC 2.30.070(0)).
• A motion to rescind may be applied to any previously adopted ordinance, resolution, or
action of the assembly except:
1.When the question could be reached by a motion to reconsider;
2. When something has been done, as a result of the vote on the main motion,
that is impossible to undo or persons have otherwise reasonably relied on the
vote to their detriment (the unexecuted part of an action, however, can be
rescinded);
3. When the matter is in the nature of a contract, and the other party has been
informed of the vote;or
4. When a resignation has been acted upon, or a person has been elected to or
expelled from membership or office, and the person was present or has been
officially notified of the action.
A motion to rescind may be made at any subsequent assembly meeting and there is no
time limit on when the motion can be made. A motion to rescind shall not be renewed
during the same meeting at which it was made, but it may be reconsidered in the same
manner as any other main motion.
A motion to rescind yields to all privileged, subsidiary and incidental motions and it
requires the same vote as that required to pass the previously adopted action. There
shall be no more than one motion to rescind on a question. If the motion to rescind
passes, the question on the main motion is automatically before the assembly for further
action, including amendment.
Note: Privileged motions do not relate to pending business. Deal with special matters of
immediate and overriding importance.
Subsidiary motions assist the body in treating or disposing of a main motion.
Incidental motions deal with questions of procedure arising from a pending
motion, etc. examples. Appeal, point of order, suspend the rules, parliamentary
inquiry
• Per Robert's Rules, RESCINDING is also known as repeal or annul. The effect of this
motion is to strike out an entire main motion, resolution, order or rule, that has been
adopted at some previous time.
AMEND SOMETHING PREVIOUSLY ADOPTED(NO. REF.IN KIBC)
• Per Robert's Rules, this is the motion that can be used if it is desired to change only a
part of the text,or to substitute a different version.
•
RECONSIDERATIONS(KIBC 2.30.070(P))—(Time limitations are in place)
• The assembly member makes the motion to reconsider on the same day and at the
same meeting at which the vote to be reconsidered was taken. Such a motion for
reconsideration requires a two-thirds vote to carry; or
• Two assembly members file with the clerk, not later than 5 p.m. on the first borough
business day following the day on which the vote was taken
Page 3 of 52
Ordinance No. FY2014-20 Decorum Ordinance
AGENDA ITEM #2.a.
1
2 Introduced by: Assembly Member Austerman
Requested by: Assembly Members
3 Austerman 8 Lynch
4 Dratted by: Clerk/Assembly member
5 Austennan/Borough Attorney
6 Introduced: 06/19/2014
Public Hewing: 07/03/2014
7 Adopted: 07/03/2014
8
9 KODIAK ISLAND BOROUGH
10 ORDINANCE NO. FY2014-20
•
II
12 AN ORDINANCE OF THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH
13 AMENDING TITLE 2 ADMINISTRATION AND PERSONNEL CHAPTER 2.30
14 RULES OF THE ASSEMBLY SECTION 2.30.080 DECORUM IN DEBATE
15 SECTION 2.30.090 CITIZENS'RIGHTS
16
17 WHEREAS, KIBC 2.30.020(D) Rules of Order"Robert's Rules of Order Current Edition" shall
18 govern the proceedings of the assembly in all cases, unless they are in conflict with these rules;
19 and
20
21 WHEREAS, KIBC 2.30.080 states proper Assembly decorum during debate and Robert's
22 Rules of Order (RRO), Article 7, Section 43, Decorum in Debate suggests that practices and
23 customs should be observed by speakers and members in an assembly to assist the carrying
24 on of debate in a smooth and orderly manner; and
25
26 WHEREAS, KIBC 2.30.090 states the manner in which the citizens could address the
27 assembly and Alaska Statutes 44.62.310 states that the governing body shall provide
28 reasonable opportunity for the public to be heard. "Reasonable opportunity" means that
29 reasonable restrictions are allowed such as time limits and decorum rules; and
30
31 WHEREAS, the right to free speech must be protected while maintaining proper decorum
32 avoiding libel and slander. Every person shall be allowed to state their positions in an
33 atmosphere free of slander, libel, and threats of violence. Every person should be referred to in
34 a respectful manner confining remarks to the merits of the pending questions avoiding
35 personalities.
36
37 NOW, THEREFORE, BE IT ORDAINED BY THE ASSEMBLY OF THE KODIAK ISLAND
38 BOROUGH THAT:
39
40 Section 1: This ordinance is of a general and permanent nature and shall become a part of
41 the Kodiak Island Borough Code of Ordinances; and
42
43 Section 2: Title 2 Administration and Personnel, Chapter 2.30 Rules of the Assembly,
44 Section 2.30.080 Decorum in Debate shall be amended as follows:
° 45
46 A. Decorum in Debate.
48 . . . .-. - • =-< ke motive any
50
Kodiak Island Borough,Alaska Ordinance No.FY2014-20
Page 1 of 3
r. :
i,.
Page 4 of 52
Ordinance No. FY2014-20 Decorum Ordinance
AGENDA ITEM #2.a.
5I
52 Assembly meetings shall be conducted in a courteous and respectful manner. In debate,
53 a person's remarks must have bearing on whether the pending motion should be
54 adopted and should be germane to the question before the assembly. Citizens and
55 Assembly members will be allowed to state their positions in an atmosphere free of
56 slander and threats of violence. Every person shall avoid the use of profanities,
57 personally offensive, insulting,threatening,or abusive remarks at all times. Every person
58 while speaking shall avoid personalities, and under no circumstances can a person
59 attack or question the motives of another person. The chair must act immediately and
60 decisively to correct any person violating decorum in debate and prevent its repetition,
62 .ndjeura:
63
64 B. Order of Speaking.
65
66 1.The manager, a delegate to the assembly, or any assembly member, when desiring to speak
67 at an assembly meeting, shall respectfully address the chair and shall refrain from speaking until
68 recognized.
69
70 2.When two or more persons request recognition at the same time, the chair shall determine
71 which one shall speak first.
72
73 3. An assembly member who Is speaking may not be interrupted to make a motion, even
74 one with high priority like the motion to adjourn.
75
76 C. Point of Order. If any assembly member, in speaking or otherwise, transgresses proper
77 decorum or the rules of the assembly, the chair shall call him to order, or any other assembly
78 member may rise to a point of order. The assembly member called to order shall immediately
79 cease speaking and cease the action to which he was called to order. The chair or assembly
80 member rising to point of order shall state the offense committed and the assembly member
81 called to order shall then be heard in explanation or justification.The chair shall then rule on the
82 point of order.Any assembly member may challenge a ruling of the chair and, if duly seconded,
83 the chair's ruling shall not stand unless affirmed by a majority vote of the assembly.
84
85 D. Private Conversations. When an assembly member is speaking, the assembly shall be in
86 order and no private conversations shall be carried on.
87
88 E. Recognition to Speak. No assembly member shall be recognized to speak on the same
89 question a second time until every assembly member choosing to speak has spoken except the
90 mover of the question, who may open and dose the debate. The chair may take part in the
91 discussion of any matter before the assembly.
92
93 The chair may recognize a citizen to address the assembly upon request of an assembly
94 member, unless objected to by two or more assembly members. Remarks by a citizen so
95 recognized may relate only to a question before the body and shall observe proper decorum.
96
97 Section 3:Title 2 Administration and Personnel, Chapter 2.30 Rules of the Assembly, Section
98 2.30.080 Decorum in Debate shall be amended as follows:
99
100 2.30.090 Citizens'rights.
101
Kodiak Island Borough,Alaska Ordinance No.FY2014-20
Page 2 of 3
Page 5 of 52
Ordinance No. FY2014-20 Decorum Ordinance
AGENDA ITEM #2.a.
02 A. Addressing the Assembly. Any person desiring to address the assembly shall first secure the
03 permission of the chair. However, under the following headings of business, unless the chair
04 rules otherwise, any qualified person may address the assembly without securing such prior
05 permission:citizens'comments, public hearing.
06
07 B. Written Communications. Interested parties or their authorized representatives may address
08 the assembly by written communication in regard to matters then under discussion. Written
09 items bearing a request that they be read into the record shall be read aloud by the clerk or
0 designated assembly person.
1
2 C. Addressing the Assembly After Motion Made. After a motion is made by the assembly, no
3 person shall address the assembly without first securing the permission of the assembly to do
4 so.
5
6 D. Manner of Addressing the Assembly — Time Limit. Each person addressing the assembly
7 shall step up to the microphone, give his name in an audible tone of voice for the record and,
8 unless further time is granted by the assembly, shall limit his address to three minutes. All
9 remarks shall be addressed to the assembly as a body and not to any member thereof. No
20 person,other than the assembly and the person having the floor, shall be permitted to enter into
21 any discussion, either directly or through the members of the assembly,without the permission
22 of the chair.No questions shall be asked of the assembly except through the chair.
23
24 E. Public decorum.Assembly meetings shall be conducted in a courteous and respectful
25 manner. Citizens will be allowed to state their positions during public meetings in an
26 atmosphere free of slander and threats of violence. Every person shall avoid the use of
27 profanities, personally offensive, insulting, threatening, or abusive remarks at all times.
28 Every person while speaking shall avoid personalities, and under no circumstances can
29 a person attack or question the motives of another person. The chair must act
30 immediately and decisively to correct any person violating decorum in debate and
31 prevent its repetition or a member of the assembly may rise to a point of order. The
32 public member called to order shall immediately cease speaking and cease the action to
33 which he was called to order.The chair or assembly member rising to point of order shall
34 state the offense committed. The chair shall then rule on the point of order. Any
35 assembly member may challenge a ruling of the chair and, if duly seconded,the chair's
36 ruling shall not stand unless affirmed by a majority vote of the assembly.
37
38 ADOPTED BY THE ASSEMBLY OF THE KODIAK ISLAND BOROUGH
39 THIS THIRD DAY OF JULY,2014
KODIAK ISLAND :..i.'OUGH
'o
1�L1
frof Friend, rough Mayor
ATTEST:
Nova M.Javier, MMC,�•rough Clerk
140
Kodiak Island Borough,Alaska Ordinance No.FY2014-20
Page 3 of 3
Page 6 of 52
Ordinance No. FY2014-20 Decorum Ordinance
AGENDA ITEM #2.a.
KODIAK ISLAND BOROUGH CODE 230.080
1. When the question could be reached by a or to regulate the rate charged by a public utility for
(� motion to reconsider; its services.
l 2. When something has been done, as a C. An emergency ordinance is effective for 60
result of the vote on the main motion,that is impos- days.(Ord.03-06§2,2003.Formerly§2.17.075).
Bible to undo or persons have otherwise reason- 00% 4 I VV ui or io2
ably relied on the vote to their detriment (the 2.30.080 Debate. WW VV ' I/y
unexecuted part of an action, however, can be A. Decorum in Debate. When any assembly
rescinded); member is about to speak in debate or deliver any
3. When the matter is in the nature of a con- matter to the assembly,he shall address himself to
tract,and the other party has been informed of the the chair and,being recognized,confine himself to
vote;or the question under debate. No assembly member
4. When a resignation has been acted upon, shall impugn the motive of any assembly member's
or a person has been elected to or expelled from vote or argument and shall avoid personalities.An
membership or office,and the person was present assembly member who is speaking may not be
or has been officially notified of the action. interrupted to make a motion, even one with high'
A motion to rescind may be made at any subse- priority like the motion to adjourn.
quent assembly meeting and there is no time limit B. Order of Speaking.
on when the motion can be made. A motion to 1. The manager,a delegate to the assembly,
rescind shall not be renewed during the same or any assembly member,when desiring to speak
meeting at which it was made,but it may be recon- at an assembly meeting,shall respectfully address
sidered in the same manner as any other main the chair and shall refrain from speaking until rec-
motion. ognized.
A motion to rescind yields to all privileged,sub- 2. When two or more persons request recog-
sidiary and incidental motions and it requires the nition at the same time, the chair shall determine
same vole as that required to pass the previously which one shalt speak first.
adopted action. There shall be no more than one C. Point of Order. If any assembly member, in
motion to rescind on a question. If the motion to speaking or otherwise, transgresses the rules of
rescind passes,the question on the main motion is'F the assembly, the chair shall call him to order, or
automatically before the assembly for further any other assembly member may rise to a point of
action,including amendment.(Ord,FY2008-14§2, order.The assembly member called to order shall
2008; Ord. FY2008-13 §2, 2008; Ord. 03-06 §2, immediately cease speaking and cease the action
2003; Ord.02-16 §4, 2002; Ord. 98-02§4, 1998; to which he was called to order. The chair or
Ord.90-48§3,1991;Ord.90-12§2, 1990;Ord.87- assembly member rising to point of order shall
11-0§3,1987;Ord,86.13-0(A)§3,1986;Ord.79- state the offense committed and the assembly
11-0, 1979. Formerly§2.17.070). member called to order shall then be heard in
explanation or justification. The chair shall then
2.30.075 Emergency ordinances. rule on the point of order.Any assembly member
-A. To meet a public emergency, the assembly may challenge a ruling of the chair and,if duly sec-
may adopt an emergency ordinance effective on onded, the chair's ruling shall not stand unless
adoption.Each emergency ordinance shall contain affirmed by a majority vote of the assembly.
a finding by the assembly that an emergency exists D. Private Conversations. When an assembly
and a statement of the facts upon which the finding member is speaking, the assembly shall be in
is based. An emergency ordinance may be order and no private conversations shall be carried
adopted,amended and adopted,or rejected at the on.
meeting at which it is introduced. The affirmative E. Recognition to Speak.No assembly member
vote of all members present,or the affirmative vote shall be recognized to speak on the same question
of three-fourths of the total membership,whichever a second time until every assembly member
is less, is required for adoption of an emergency choosing to speak has spoken except the mover of
ordinance. The assembly shall print and make the question,who may open and close the debate.
available copies of adopted emergency ordi- The chair may take part in the discussion of any
nances. matter before the assembly.
B. An emergency ordinance may not be used to The chair may recognize a citizen to address the
( levy taxes,to grant,renew, or extend a franchise, assembly upon request of an assembly member,
11 unless objected to by two or more assembly mem-
2-15
Page 7 of 52
Ordinance No. FY2014-20 Decorum Ordinance
AGENDA ITEM #2.a.
2.30.090 RULES OF THE ASSEMBLY
bets. Remarks by a citizen so recognized may C. Recess, The chair may call a recess not to
relate only to a question before the body.[Ord.98- exceed 20 minutes at any time during a meeting to
02 §4, 1998; Ord.86-13-0(A)§3, 1988: Ord. 79- determine a rule of order or at the request of a
11-0, 1979.Formerly§2.17.080j. majority of the assembly. The chair may call a
recess at any time between items of business.
2.30.090 Citizens'rights. D. Seating Arrangement. Assembly members
A. Addressing the Assembly.Any person desir- shall occupy the respective seats in the assembly
ing to address the assembly shall first secure the chambers assigned them by the mayor.
permission of the chair.However,under the follow- E. Compensation and Expenses.
ing headings of business, unless the chair rules 1. Assembly members shall receive$300.00
otherwise, any qualified person may address the per month.Assembly members may be included in
assembly without securing such prior permission: the borough health and life insurance plan.
citizens'comments,public hearing. 2. Expenses of assembly members, other
B. Written Communications. Interested parties than transportation and per diem for approved
or their authorized representatives may address travel,incurred because of borough activities may
the assembly by written communication in regard be reimbursed by the borough only after approval
to matters then under discussion. Written items by the assembly.
bearing a request that they be read into the record F. Travel.
shall be read aloud by the clerk or designated 1. Assembly members while traveling over-
assembly person. night on official business will be advanced or reim-
C. Addressing the Assembly After Motion bursed per diem at the rate and under such
Made.After a motion is made by the assembly,no conditions as are prescribed for other appointed
person shall address the assembly without first officers and employees of the borough.
securing the permission of the assembly to do so. 2. Travel shall be at the most economical
D. Manner of Addressing the Assembly-Time fare possible.
Limit. Each person addressing the assembly shall 3. Travel requests to the clerk shall be sub-
step up to the microphone, give his name in an milted timely to avoid unnecessary staff overtime.
audible tone of voice for the record and,unless fur- 4. Once travel arrangements are accepted Cam)
ther time is granted by the assembly,shall limit his and confirmed by the assembly member,and tick-
address to three minutes. All remarks shall be ets are purchased, any changes and additional
addressed to the assembly as a body and not to fees shall be the assembly member's responsibility
any member thereof. No person, other than the except:
assembly and the person having the floor,shall be a. When travel arrangements are
permitted to enter into any discussion, either changed for borough business;or
directly or through the members of the assembly, b. When travel arrangements are
without the permission of the chair. No questions changed for a family-related emergency.
shall be asked of the assembly except through the i. Interim financial assistance may be
chair. (Ord.03-08§2.2003;Ord.98-02 §4. 1998: provided by the borough;however,reimbursement
Ord. 86-13-0(A) §3, 1986; Ord. 79-11-0, 1979. of the assistance shall be subject to assembly
Formerly§2.17.090). approval.
c. If travel arrangements are changed for
2.30.100 Miscellaneous. personal reasons, other than a family-related
A. Suspension of Rules. The standing rules or emergency, additional fees shall not be reim-
the order of business established by the assembly bursed.
may be suspended by a two-thirds vote to which 5. An assembly member traveling on bor-
the assembly is entitled. ough business who is stranded from Kodiak due to
B. Assembly Chambers. The assembly chart- inclement weather or other adverse conditions will
bers shall be under the supervision and control of be reimbursed the appropriate per diem and any
the clerk when the assembly is not In session. It reasonable necessary expenses incurred.
shall be used solely for the transaction of public a. If an assembly member shortens or
business of the borough or,as authorized,within extends their originally scheduled travel time in any
the intent of assembly policy on the use of the way for borough business and becomes stranded,
assembly chambers. reimbursement of the appropriate per diem and
2-16
Page 8 of 52
Ordinance No. FY2014-20 Decorum Ordinance
AGENDA ITEM #2.c.
WILSON ENGINEERING MONTHLY PROGRESS REPORT
Kodiak High School Renovation
Period Ending; July 31, 2014
Summary:
Demolition continues at Area B ground level with the removal the exterior walls providing access to the old senior
commons.The split level concrete floor will be removed in its entirety.Also completed in area B is one of the new
concrete shear walls.Concrete shear walls in Area B provide code required seismic upgrades.Stainless steel railings have
been installed on the new Gymnasium bleacher balcony providing safe access for students when class resumes next
month. The Area A Tower remains the Contractor's primary focus. Finishes on the fourth floor are 80%complete with
flooring materials scheduled to commence next period.Completion efforts are being scheduled one floor at a time
starting with level 4 and working down to the ground level.West parking lot has been graded and ready for paving.
Work in Egan Way found nearly 2000 CY of unsuitable soil under the roadway.The excavated material has been replaced
with specified rock,graded and will be paved next period along with other areas. Civil utilities such as parking light
poles,water main,storm drains and sewer lines have been complete as required to occupy the Tower.
i
Work This Period: "`+'�`-',.' -�7—.. -W—`-a"-.4-..'. ` ,x,nrw",ta'.
• Gypsum wall board and painting level 1 .1814,'"'Y
• Acoustical ceiling grids completed level 3&4 .-
• Lighting and Plumbing fixtures installed level 3 &4 # IFTLIHr 11 ®t a - k'
• PVC roof membrane at Area C parapets completed 'y
l„z
• Civil curb,gutter and walkways on going �.. 4 < tj
tl/
Work Scheduled Next Period:
'
• Paving at West Parking lot and Egan Way -°.
Casework Room A417 Science Lab
• Architectural concrete in the new court yard nr,,::�,�
• Continue finishes in the Tower complex 74'`.— • yy
• Area 8 concrete demo �i Fes- •
-..N_ • —� S
• Utility connections for water and sewer cy;'
Schedule Status: Phase 2 Gymnasium completed. Phase 3 g e ' :, , c r r • • r;'a. ri
completed. Phase 4 schedule modified(completion October 1). , , ,.
Phase 6 completion revised to October 1,2015 i _ _ r
Scheduled Milestones In Progress RFI's l ,
Phase Start Milestone %Complete Last Period 30 Metal Lockers Corridor A429
2 4-5-13 9-23-13 100% This Period 9 r
tV f
3 4-5-13 01-16-14 100% Open RFI's 03 ��"\ r °��`f r i ' . '•
4 4-5-13 8-01-14 69.5% "' P "' _'
5 6-1-14 8-21-14 26% Total To-Date 399 `
*E '. .
1.
e
ill "�1111141011111 .
f „ Accent paint in Restore r � "s. a - l'f '
C7�.' ...t Room A223 .. 1 F , ---K 4t*.... ',]
tr: _ Area B Demo
Bruce Walter, Project Manager
Page 9 of 52
Update on the KHS Addition and Renovation - Bruce Walters
AGENDA ITEM #2.c.
Bud Cassidy
From: Matt Gandel
Sent: Thursday,August 14,2014 1:13 PM
To: Bob Tucker; Bud Cassidy
Subject: RE:Managers Report.KHS Moving Deadline missed
Here is a brief summary of the KHS delay:
Watterson Construction has informed us that they will not be able to meet the October 1,2014 completion date for the
new 4-story tower.Their revised schedule shows a substantial completion date of November 18,2014,with an
additional 20 day period for punch list corrections and commissioning.Final completion for Owner occupancy will be
December 10,2014.We have requested a letter from Watterson stating specific reasons for the delay.KIBSD staff is
aware of the delay and are determining how best to proceed to have the minimum impact on students and staff.It is
likely that this delay will mean KIBSD won't move in to the tower until Christmas break.It is unclear at this time what
affect,if any,this delay will have on future phases on the project.
Let me know if you have any questions.
Matt
From: Bob Tucker _- _
Sent: Wednesday, August 13, 2014 4:00 PM
To: Bud Cassidy
Cc: Matt Gandel
Subject: RE: Managers Report.KHS Moving Deadline missed
Bud you mentioned this the other day. I met with Matt and Bruce this morning and had said you were going to want an
update. We received the new schedule this afternoon and Matt and Bruce are already working on a short report for you
for tomorrow. We will get it to you as soon as possible.
Thanks
Tuck
From: Bud Cassidy
Sent: Wednesday, August 13, 2014 3:29 PM
To: Bob Tucker
Subject: Managers Report. KHS Moving Deadline missed
Bob
Can you write me a short paragraph about the fact that we will not make the deadline to move into the new tower by
October. I want to announce this at the work session tomorrow night.
Maybe give me some reasons why and what this means from a practical matter and from a financial matter
I will say that because school will be in session, that the move into the tower will not occur now until Xmas break.
Thanks
Page 10 of 52
Update on the KHS Addition and Renovation - Bruce Walters
AGENDA ITEM #2.d.
4 : � `. Kodiak Island Borough
rir;:
Office of the Borough Mayor
,t -} - 710 Mill Bay Road
t Kodiak, Alaska 99615
46 II�a S, ,, -- Phone (907) 486-9310 Fax (907) 486-9391
1. I
August 21, 2014
President Patrick K. Gamble
PO Box 755000
Fairbanks, AK 99775-5000
RE: Faculty Position for Kodiak Seafood and Marine Science Center
Dear President Gamble,
The Kodiak Island Borough is in support of the University of Alaska including $113,000 in
general funds for a faculty member in Kodiak at the UAF Kodiak Seafood and Marine Science
Center (KSMSC) in your FY2016 operating budget request to the Governor and Alaska
Legislature. UAF has prioritized this funding and we understand that you are now compiling the
overall list for UA.
KSMSC is important to the state because the KSMSC houses Alaska's only pilot seafood
processing plant for real world, hands-on testing with the latest equipment. Also, the faculty at
the KSMSC assists seafood companies to better utilize and profit from processing all parts of
the harvested fish and shellfish. The KSMSC mission, unique with the UA system, is to increase
the value of Alaska's seafood industry and marine resources through training via workshops,
education through college classes,technical assistance,and research and development.
In the last three years, four faculty members have either retired or left the center for other
employment. None have been replaced, basically leaving Alaska with very minimal capacity to
support training and research in the seafood processing area. This seems like poor strategy
given that the seafood industry is the state's largest employer and a major economic engine all
over Alaska. With UA's Fisheries, Seafood and Maritime Initiative that you have championed, it
makes sense to the Kodiak Island Borough to support this request. Once your request is sent to
the Governor and the Legislature, we will encourage them to prioritize and fund this important
and needed position.
Sincerely,
Jerrol Friend, Mayor
Kodiak Island Borough
CC: University of Alaska Board of Regents
Page 11 of 52
UAF Kodiak Seafood and Marine Science Center Support Letters
AGENDA ITEM #24.
/` Kodiak Island Borough
*If.j IAA'\ Office of the Borough Mayor
s1!' 710 Mill Ray Road• Kodiak, Alaska 99615
,et t Phone (907) 486-93'10 I nt (907) 486-9391
`-..
August 21, 2014
Board of Regents
Chairperson Patricia Jacobson
PO Box 8707
Kodiak,AK 99615
RE: Faculty Position for Kodiak Seafood and Marine Science Center
Dear Chairperson Jacobson,
The Kodiak Island Borough is in support of the University of Alaska including $113,000 in
general funds for a faculty member in Kodiak at the UAF Kodiak Seafood and Marine Science
Center (KSMSC) in your FY2016 operating budget request to the Governor and Alaska
Legislature. UAF has prioritized this funding and we understand that you are now compiling the
overall list for UA.
KSMSC is important to the state because the KSMSC houses Alaska's only pilot seafood
processing plant for real world, hands-on testing with the latest equipment. Also, the faculty at
the KSMSC assists seafood companies to better utilize and profit from processing all parts of
the harvested fish and shellfish. The KSMSC mission, unique with the UA system, is to increase
the value of Alaska's seafood industry and marine resources through training via workshops,
education through college classes,technical assistance,and research and development.
In the last three years, four faculty members have either retired or left the center for other
employment. None have been replaced, basically leaving Alaska with very minimal capacity to
support training and research in the seafood processing area. This seems like poor strategy
given that the seafood industry is the state's largest employer and a major economic engine all
over Alaska. With UA's Fisheries, Seafood and Maritime Initiative that you have championed, it
makes sense to the Kodiak Island Borough to support this request. Once your request is sent to
the Governor and the Legislature, we will encourage them to prioritize and fund this important
and needed position.
Sincerely,
Jerre' Friend, Mayor
Kodiak Island Borough
CC: University of Alaska Board of Regents
i Page 12 of 52
UAF Kodiak Seafood and Marine Science Center Support Letters
AGENDA ITEM #2.e.
Bud Cassidy
From: Joe Levesque cjoe @levesquelawgroup.comr
Sent: Wednesday,August 13,2014 11:41 AM
To: Bob Pederson;Bud Cassidy;Laud Whiddon
Cc 'Shelley Garey'
Subject: FW:SOS initiative materials
Attachments: 20140319 Final order-Suddock.pdf;R_2014.45
Authorize_Attorney_Firm_to_Participate_in_Save_Our_Salmon Lake....pdf
All:
Earlier this year(March 2014) I forwarded to you the Judge's decision regarding the Lake&
Peninsula Borough's"Save our Salmon" initiative. Now there is some interest in submitting an
Amicus Brief on behalf of municipalities to request that the Supreme Court not go too far in restricting
municipal permitting powers. Please review this email chain and the attachments. The law firm
Boyd, Falconer&Chandler will be handling all of the work on the Amicus brief. Does KIB have any
interest in joining the Amicus?
I'm am available to discuss.
Thanks,
Joe
Joseph N.Levesque
LEVESQUE LAW GROUP,LLC
3380 C Street,Suite 202
Anchorage,Alaska 99503
(907)261-8935
(907)261-8931 (Direct line)
(907)230-8126(cell)
Email: joe @levesquelaworoup.com
This transmittal may be a confidential attorney-client commutation or may otherwise be privileged or confidential. If you are not the Intended recipient,
you are hereby notified that you have received this transminal in error and that any review,dissemination,distribution or copying of this transmittal Is
sbicby prohibited. If you have received this communication In error,please notily us Immediately by reply or by telephone(collect at 907-261-8935)and
immediately delete this message and all of its attachments. Thank you.
T'
From:Patrick Munson fmailto:PMunson(aibcf,us.com)
Sent:Wednesday,August 13, 2014 11:21 AM
To:ioealevesouelawnrouo.com
Cc:Brooks Chandler
Subject:SOS initiative materials
Good morning Joe—Thanks for talking with us earlier and for encouraging this project. Attached are the City of
Dillingham resolution and my letter to the Council explaining the basics of this project,as well as Judge
Suddock's order. Feel free to share it with your clients, the AML group,or anyone else who may be interested,
as the issues raised by both documents are(in our opinion) universal to other municipalities.
Page 13 of 52
Save Our Salmon Initiative Amicus Brief
AGENDA ITEM #2.e.
r., r e
ti Kodiak Island Borough
it p�
/4.71'=1. --e.,', � %` v b
a -it OFFICE of the MANAGER
-�{+" Bud Cassidy, Borough Manager
A iE = I,o,: MEMORANDUM
Date: August 22,2014
To: Borough Mayor and Assembly Me ers
From: Bud Cassidy,Borough Manager ift et
Re: Amicus Brief-Save our Salmon itiative.
I have included information from our attorney about a case going before the Supreme Court on an
issue that he thinks may have broader ramifications for the Kodiak island Borough and other
Borough's In the state to regulate resource development projects on state lands within their
borders.He was asked by other municipal attorneys and has asked me specifically if KIB is
interested in joining the Amicus.If there is interest,the borough attorney has until September 1 to
have us join.
The concern as expressed by our attorney in the attached documents is fear that the Supreme
Court in this case will not rule narrowly on the issue of whether a local jurisdiction is a"co-equal"
with the state of Alaska in permitting Pebble Mine.There is a fear that if the court rules broadly
that the state authority trumps any local review,local government will have no say over any
resource extraction project on state land within their borders.
On one hand,the Alaska constitution,Article X provides for"maximum local self-government"
and that a"liberal construction shall be given to the powers of local government units."That
includes planning,zoning and permitting.But on the other hand,Article VIII,Section 2,"provides
for the utilization,development and conservation of all natural resources ...for the maximum
benefit of its people". There are other nuances of the case,but the concern is that a ruling that is
too broad will allow any resource development,which in the eyes of the state wilt benefit its
citizens,will move forward with little local government comment or review.
My investigation and discussion into the issue with AML,SWAMC and others,is that there is
hesitancy in pursuing this issue,AML is concerned about larger state wide issues.SWAMC has
refrained from taking a position because there is a split among membership communities.Even
the city of Dillingham will not move forward supporting this appeal without another partner.My
conversations with the Aleutians-East Borough are that they have not progressed on this issue to
any degree.
The fact that there are differences in Kodiak on the facets of the case may be Important.We are a
second class borough while in this appeal the Lake&Peninsula Borough is a home rule borough.
Also,there is some,but little state-owned land outside of the refuge boundary.Most of the land
outside of the Kodiak National Wildlife Refuge is Native Corporation owned land.There is also
little mineralization on state lands on Kodiak,so chances of a large scale project occurring on
state land are minimal.
Because of the lack of interest by other boroughs,and because of our differing circumstances in
Kodiak versus in the Lake&Peninsula Borough,I would recommend that care be taken in moving
forward in this request.
Please review the information provided.
Page 14 of 52
g Save Our Salmon Initiative Amicus Brief
6
AGENDA ITEM #2.e.
Meeting Date:August 7, 2014
CITY OF DILLINGHAM, ALASKA
RESOLUTION NO. 201445
A RESOLUTION OF THE DILLINGHAM CITY COUNCIL AUTHORIZING BOYD,
CHANDLER & FALCONER TO PARTICIPATE IN AN APPEAL WITH THE LAKE AND
PENINSULA BOROUGH ON THE "SAVE OUR SALMON" INITIATIVE.
WHEREAS, the City Council passed Resolution No. 2010-05 approved on January 7, 2010
opposing Large Scale Mining and the Proposed Pebble Mine; and
WHEREAS, the Lake and Peninsula Borough passed a "Save our Salmon" (SOS) initiative
that Pebble Limited Partnership and the State of Alaska sued to block the initiative; and
WHEREAS, the City of Dillingham had asked their attorneys to follow this lawsuit and to
provide the council a status on it; and
WHEREAS, a decision was issued in March 2013 striking the Initiative and the ruling is now
on appeal to the Supreme Court; and
WHEREAS, the trial court concluded that natural resources on state land are for the benefit
of all Alaskans, and therefore struck down a municipal law that would allow a limited
number of Alaskans to "veto" a project because of its local impacts; and
WHEREAS, if the blocking of this initiative is upheld by the Supreme Court, it could
undermine the ability of local governments to regulate resource development within
municipal borders; and
WHEREAS, the City has an interest in participating in this appeal by submitting an"amicus
brief"to urge the Court to consider certain policies when reaching a decision; and
WHEREAS, the City of Dillingham has an interest in protecting its right to exercise
permitting authority within its city limits;
NOW, THEREFORE, BE IT RESOLVED that the Dillingham City Council authorize Boyd,
Chandler & Falconer to participate on behalf of the City if there are other municipalities
involved and the cost to the City of Dillingham does not exceed three thousand dollars in
appealing to the Supreme Court to reach a decision that does not reduce municipal
authority to regulate its own affairs, or to overturn the trial court's decision entirely.
PASSED and ADOPTED by the Dillingham City Council oryA-tu t 7, 2014.
• / r
.lice Ruby,v ayor
ATTEST: _ [SEAL] _ - - -: -`
jig 4 1 u.1_, I ....... :Ada
ice Williams, City Clerk
City 1 of 1 Dillingham
Page 1 _ t eSofeiion No, 2014-45
Page 15 of 52
Save Our Salmon Initiative Amicus Brief
AGENDA ITEM #2.e.
City of Dillingham Information Memorandum Agenda of: August 7, 2014
Attachment to: 2014-45
Ordinance No. I Resolution No.
Subject:
A RESOLUTION OF THE DILLINGHAM CITY COUNCIL AUTHORIZING, BOYD,
CHANDLER & FALCONER TO PARTICIPATE IN AN APPEAL WITH THE LAKE AND
PENINSULA BOROUGH ON THE "SAVE OUR SALMON" INITIATIVE
City Manager: commend Approval
Signature: ��H42-iL
Route to Department Head Signature Date
/ yr_
X Finance Director "f r r Q 71a81
3gf
X City Clerk L. �;m Fiscal Note: ✓ Yes No Ki4rivar
ds Available: Yes No
Other Attachments:
-July 18, 2014 Letter from Boyd, Chandier& Falconer
Summary Statement:
The City's attorney has been following the Lake and Peninsula Borough's Save our
Salmon Initiative lawsuit which is on appeal to the Supreme court. The attorney
provided an update to this lawsuit which is attached. If the initiative is not upheld it
could impact the ability of municipalities to regulate resource development within its
borders.
The attorney's estimate for submitting an amicus brief on behalf of the City could cost
jA up to$10,000 in attorney fees. This amount would decrease if other communities
choose to participate.
g..
Page 1 of 2 CLKC12
fi?
4F'
iq
ky'
Page 16 of 52
Save Our Salmon Initiative Amicus Brief
AGENDA ITEM #2.e.
Ordinance No. /Resolution No. 2014-45
Summary Statement continued:
Page 2 of 2 CLK012
I
Page 17 of 52
Save Our Salmon Initiative Amicus Brief
AGENDA ITEM #2.e.
City of Dillingham
Fiscal Note
Agenda Date August 7, 2014
Request:
ORIGINATOR: Carol Shade
FISCAL ACTION(TO BE COMPLETED BY FINANCE) FISCAL IMPACT
AMOUNT REQUESTED: FUNDING SOURCE
$ 10,000.00 General Fund
FROM ACCOUNT Project
1000 7020 10 15 0000 0 $ 10,000
Save our Salmon brief
TO ACCOUNT: IVERIFIED BY: Carol Shade Date: 8/7/2014
EXPENDITURES
OPERATING FY15 FY16 FY17 FY18
Personnel
Fringe Benefits
Legal $10,000.00
Major Equipment
Land/Buildings
Construction
—
:
TOTAL OPERATING $ 10,000.00 $ - $ - $
>l
Capital I I -1
REVENUE
FUNDING
General Fund $ 10,000.00
—
State/Federal Funds
B BEDC CDBG
TOTAL FUNDING $ 10,000.00 $ - $ - $
POSITIONS
•
Full-Time
Part-Time _
-'t Temporary
ANALYSIS: (Attach a separate page if necessary) See R 2014-45
PREPARED BY: Carol Shade August 7,2014 _
DEPARTMENT: Finance Department August 7,2014
Page 18 of 52
Save Our Salmon Initiative Amicus Brief
AGENDA ITEM #2.e.
BOYD, CHANDLER & FALCONER, LLP
ATTORNEYS AT LAW
SUITE 302
911 WEST EIGHTH AVENUE
ANCHORAGE, ALASKA 99501
TELEPHONE: (S07] 272-8401
racs1MILe, (907; 274-3698 RECER/ED
9c99,cf.us.corn
July IS,2014 JUL 2 1 2014
Rose Loera
CITY OF DILLINGHAM
City Manager
City of Dillingham
P.O.Box 889
Dillingham,AK 99576
Re: Status of SOS Initiative Lawsuit on Appeal to the Supreme Court -
Dear Rose,
A little over a year ago,you and Mayor Ruby asked us to follow the lawsuit regarding the
Lake and Peninsula Borough's"Save our Salmon"Initiative and update you on significant
developments. As I'm sure you know,the initiative sought to amend the-borough land use code to
prohibit issuance•of a borough land use permit for mines exceeding 640 acres that would have a
"significant adverse impact"on salmon-bearing waters.-PcbbleLimited Partnership-sued to block
the initi:itivu, arguing that.theborough•did-not haveauthoritytoenact a"co-equaP't permitting system
•
that could preclude a mine that the State of Alaska might otherwise permit.-The judge declined to
rule on the lawsuit until after the election.The initiative passed by 37 votes on October 4;2011. At
that point,the State also sued to block implementation of the initiative. PLP and the State's suits
were combined,and a decision was issued in March 2013 striking the Initiative. The ruling is now
on appeal to the Supreme Court. - -
The Trial Court's Decision
In short,the trial court ruled that the LS:PB did not have authority to enact a permitting
system that could prevent large scale mining within borough boundaries. The main basis for the
decision was that the Alaska Constitution c,onforred authority over all state lands to the Alaska
legislature. In turn,the legislature gave vast authority to DNR to regulate mining. Critically,the
legislature reserved for itself the authority to withdraw parcels larger than 640 acres from mineral
development. Based on that limitation,the trial court concluded that the borough's permitting
system was unlawful because it purported to give the borough a power(i.e.,preventing mineral
development over 640 acres by denying a permit)that only the legislature has under state law. It
therefore struck down the initiative,,meaning the borough's permitting system will not go into effect
even though it was supported by a majority of the local citizens.
Although there ate other issues on appeal to-the Supreme Court,this is the one that we view
as Most import§nt to local governments in Alaska and to Dillingham in particular.-The trial court
conclddedthat nzfu ai resources on state land are for the benefit of all'Alaskans,and therefore-stuck
doivIs a-inunieipal law that.would allow a limited-number of Alaskans(ta:, locals near the proposed
-project)to"veto"a project because of its local impacts. Additionally,the trial court seemed
skeptical that local governments could be trusted to make informed decisions about large mineral
•
•
Page 19 of 52
Save Our Salmon Initiative Amicus Brief
AGENDA ITEM #2s.
Rose Loera
July 18,2014
Page 2 of 3
developments because local officials and citizens are so close to the politics, impacts,and passions
of such projects. These are some of the principals the Alaska Supreme Court is now being asked to
consider on appeal. If broadly upheld by the Supreme Court,the trial court's decision could
undermine the ability of local governments to regulate resource development within municipal
borders. The Supreme Court could,at worst,rule that municipalities do not have the authority to
enact permitting systems that might block a project that the state would otaerwise permit)
Analysis of L)ill ingham's Interests
We believe the City of Dillingham may have an interest in participating in this appeal. The
context of the City's participation would be quite limited. When an entity not otherwise involved in
a lawsuit believes that the Supreme Court's decision will impact its legal rights and powers in the
future,it may submit an"amicus brief'to urge the Court to consider certain policies when reaching a
decision. In this case,the City of Dillingham may decide that it has an interest in protecting its right
to exercise permitting authority within city limits. For example,a broad Supreme Court decision
would call into question the City's permitting authority over material sites and perhaps other
activities intended to be covered by the City's recently-enacted land use permitting system.
Moreover,should the Supreme Coon reach a very broad decision that significantly limits municipal
authority to exercise permitting authority,future cases could draw upon its reasoning to further limit
municipal power and self-determination.
The City may decide it wants to defend its municipal authority by submitting an amicus brief
that urges the Supreme Court to reach a very narrow decision,or to overturn the trial court's decision
entirely. Note that neither position requires the City to endorse or oppose the Pebble Project or even
the SOS Initiative. The City's position could be narrowly-tailored to simply urge the Court to reach
a decision that does not reduce municipal authority to regulate its own affairs. The City,on behalf of
itself and other Alaskan cities,would ask the Court to limit its decision to the facts presented in the
lawsuit:whether a borough can enact a law that could veto a project of 6a0 acres or more(no matter
what the Court decides on the merits of the SOS Initiative). That type of narrow decision would
have the least impact on the City's ability to regulate mining(and potentially other activities)within
its borders in the future.
Significantly,we believe the Court will reach a narrow decision on its own. The Supreme
Court typically avoids making broad pronouncements of law that are not necessary to decide a
specific case. If the Court follows that practice here, it will reach a limited decision that applies only
to ordinances that could effectively veto large resoure extraction projects over 640 acres. Thus,the
City's position might be one that the Court will adopt anyway whether or not the City gets involved,
The SOS Initiative sponsors also point out that PLP has not applied for a borough permit
under the new system,much less been denied,so the case should not even be decided at this time.
We believe that issue is secondary to the issues noted elsewhere in this letter,but we are somewhat
troubled by the court's willingness to preemptively strike down a municipal permitting system based
on the idea that it might prevent a development,not That it has actually done so.
Page 20 of 52
Save Our Salmon Initiative Amicus Brief
AGENDA ITEM #2.e.
Rose Loera
July 18,2014
Page 3 of 3
On the other hand,a municipal voice urging the Court to reach a narrow conclusion will help ensure
that this case does not reduce municipal self-determination and local contco1.Other communities are
also considering whether to get involved in the way we described here.
Participation would not be without costs. We believe the City's limited role would require
less than$10,000 in attorney's fees and minimal costs, limited to copies and legal research. This
amount would decrease if other communities participate. Additionally, we understand that the SOS
Initiative and Pebble Project are a hot button issue in the community and that the City may not want
to get involved. This is completely understandable as well. Note,however,that the City could
participate in this limited manner without taking a position on Pebble or even the validity of the
Initiative because we would be urging the Court to make whatever decision it reaches in a way that
least damages other cities'ability to regulate their own affairs. On the other hand, if the City wanted
to take a position,it could direct us to defend municipal authority in that way while also arguing
either in favor of or against the SOS Initiative(and perhaps by extension,the Pebble Project).
We are presenting this analysis for your review and consideration. We do not have a
recommendation on whether the City should participate because the costs and benefits are ultimately
something for you and the City Council to weigh. If you believe that the City Council would be
interested in reviewing this information,please provide it to them as soon as possible so they cart
provide instructions to us in time to participate if that is the City's preference. The latest we could
decide to participate is approximately August I S because our brief would likely be due on September
2. 'Therefore, if you believe the City Council should consider the matter, we will draft a resolution
directing our firm to represent the City in the Supreme Court, which the Council may approve or
reject at its August 7 meeting.
Please feel free to call anytime to discuss this or any other matter.
Very truly yours,
BOYD,CHANDLER Si.
FALCONER,LIP
te P rick\{'. Munson
PWM/Ikr
cc: Mayor Ruby
Page 21 of 52
Save Our Salmon Initiative Amicus Brief
AGENDA ITEM #2.e.
I
IN THE SUPERIOR COURT FOR THE STATE OF ALASKA
THIRD JUDICIAL DISTRICT AT ANCHORAGE
PE BLE LIMITED PARTNERSHIP, 1
acting through its General Partner, )
PE6BLE MINES CORP., )
Plaintiff )
1
vs. 1
LAKE AND PENINSULA BOROUGH, )
and KATE CONLEY, in her official )
capacity as Clerk of the Lake and )
Peninsula Borough, )
Defendants ) Case No. 3DI-11-00053 Cl
1
GEORGE G. JACKO and )
JACKIE G. HOBSON, SR., I
Intervenor-Defendants )
1
STATE OF ALASKA, ) CONSOLIDATED
Plaintiff, )
vs. )
LAKE AND PENINSULA BOROUGH )
Defendant. )
) Case No. 3AN-I 1-011833
1. INTRODUCTION
The Alaska legislature granted the Department of Natural Resources
(DNR) comprehensive authority over mineral exploration, permitting, and
development, to be exercised for the benefit of all Alaskans. Has the legislature
impliedly granted home rule boroughs co-equal permitting authority over large
scale mining such that the Lake and Peninsula Borough may veto the Pebble
Mine even if DNR would approve it?
II. STATEMENT OF FACTS
Defendant Lake and Peninsula Borough (L&PB) is a home rule borough
incorporated in 1989. Located in southwest Alaska, it approximates the size of
Order and Decision
PeLb(e Lul. I"ship et al. v. Conley et al.
3DI-11-00053C1
Page 1 of 29
Page 22 of 52
Save Our Salmon Initiative Amicus Brief
AGENDA ITEM #2.e.
West Virginia, extending 400 miles from Lake Clark well down the Alaska
Peninsula to Ivanof Bay. Its coastline along the north side of the Alaska
Perinsula defines the southern boundary of Bristol Bay. Bristol Bay hosts the
largest salmon run in the world.
L&PB is very sparsely populated, with a year-round population of about
1,6'0)0, R is governed by a seven-member assembly, and has six full-time
employees: a manager, clerk, administrative assistant, finance officer,
community munity development coordinator, and economic development coordinator.
The borough scat is located at King Salmon in the adjoining Bristol Bay
Borough, presumably for commercial, banking and air-travel convenience.
State-owned land within L&PB cradles the largest discovery of
undeveloped copper ore in the world. It is interlaced with substantial gold and
f
molybdenum deposits. The proposed Pebble Project mining site is 200 miles
southwest of Anchorage, fifteen miles north of Lake Illiamna, and twenty miles
we, t of Lake Clark. Its generally flat terrain, interspersed with glacial ponds,
lies within a broad valley separating the drainages of Upper Tularik Creek and
the Koktuli River, which both flow into the Bristol Bay watershed.
Plaintiff Pebble Limited Partnership (PLP) holds the mineral rights to the
site, and since 2002 has actively engaged in exploration and other pre-
permmitting activity. PLP has applied to the State of Alaska for a 35-billion gallon
pc I year water-usc permit for Upper Tularik Creek and the Koktuli River for
usj in anticipated mining operations. But PLP has not yet extensively applied
Order and Decision
PebLle Ltd. P's/tip at at. o. Conley at al.
3Dt-11-00053 CI
Page/* 2 of 29
Page 23 of 52
Save Our Salmon Initiative Amictts Brief
AGENDA ITEM #2.e.
for state or federal permits, or proposed a plan of operations for mine
development.
The scope of the project and its potential deleterious effects on salmon-
berng waters are discussed in a 2008 article in the Alaska Law Review,'
which although dated, provides a useful context for the parties' motions for
summary judgment.
The exploratory site measures 2.65 miles by 1.7 miles. It is estimated to
contain 67 billion pounds of copper, 4 billion pounds of molybdenum, and 82
million ounces of gold. One area of the site, Pebble West, extends to a depth of
2000 feet, and is a potential locale for an open pit mine that would generate 4.5
billion tons of ore. Each ton of ore might contain up to ten pounds of copper,
.16 ounces of gold, and .46 pounds of molybdenum, for a waste to metals ratio
of 189 to 1. Parts of Pebble East lie below as much as 1000 feet of overburden,
with a mineral depth to 5000 feet. Pebble East might be mined as a pit mine or
a block-cave mine. While Pebble West is expected to yield ten pounds of metals
per ton of ore, Pebble East could yield double that. Jointly, Pebble West and
East can be expected to generate over seven billion tons of waste, presumably
to be stored on adjoining state land forever.
The project would require a vast water system to prevent the pits and
shifts from filling with water, to extract water for processing, and to transport
waste slurry via pipelines. Five earthen dams, up to 700 feet high, constructed
Geoffrey Y. Parker et at., Pebble Mine:Fish, Minerals, and Testing the Limits of Alaska's 'Large
Mine Pert-
ermitting Process', 25 Alaska. L. Rev. I (2008).
r
Order and Decision
Petiole Ltd. P'ship et at. v. Conley et al.
3D1-11-0005301
Page 3 of 29
ti
Page 24 of 52
Save Our Salmon Initiative Amicus Brief
AGENDA ITEM #2.e.
along nine miles of watershed, would buffer waste material from the
environment, creating ten square miles of ponds. Two pipelines one hundred
miles in length would parallel a newly-constructed road to Cook Inlet,
terminating at a deep-water port. One of these pipelines would transport
copper slurry to the port; the other would return recovered slurry water to the
holding ponds. An additional four pipelines totaling 13 miles in length would
transport mine waste to storage and reclaimed water to holding ponds.2
In addition to the mine infrastructure, a 300-megawatt power plant on
they Kenai Peninsula would provide power for a mill to crush, process, and
concentrate ore, and power other mine and port functions, construction camps,
and permanent support facilities, via under-inlet cabling and 100-mile long
transmission lines. Normal operation of the mine and ancillary facilities might
require 1000 skilled workers over a 50-80 year expected mine life.
The host rock of large scale mineral deposits contains metal sulfides.
Exposed to air and water, sulfides form acid mine drainage, which can leach
metals such as arsenic, cadmium, copper, zinc, iron, and lead from the
surrounding rock base. Contaminants from acid mine drainage are the most
critical challenge facing the U.S. mining industry, but quantification of that
risk is problematic:
Because the factors affecting the potential for acid mine
drainage are highly variable from site to site, predicting the
potential for acid mine drainage is difficult, costly, and of
questionable reliability.3
2 Id. at 13-23.
3 Id.at 16.
Order and Decision
Pebble Ltd. P'ship et at. v. Conley et at
301-11-00053C1
Page 4 of 29
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AGENDA ITEM #2.a
Such dissolved metals if not contained can then enter the food chain.
While trace copper is essential to life, concentrations above a threshold arc
toxic to salmon, which are quite sensitive to dissolved heavy metals. But the
threshold for salmon toxicity is multi-factorial and so difficult to predict.
Relevant factors include the copper concentration, water hardness, salinity and
temperature, the presence of suspended solids, cross-effects between minerals,
and response variations due to the genetics and prior exposure rates. Non-
lethal effects of excess copper include impaired sense of smell, disrupted
migration, decreased immune response, respiratory impairment, imbalanced
internal salinity, weakened vibration sensation crucial to predator evasion,
diminished brain function, altered metabolic and blood chemistry, and
irregular hatch rates. Few scientific studies discuss the biologic "cocktail" effect
of multiple metals acting in concert.4
In 2007 Pebble opponents propounded a statewide "Alaska Clean Water
Initiative" prohibiting discharge of any pollutants that would adversely affect
salmon spawning. The measure would likely have precluded development of the
it Pebble prospect. It was defeated by 57% of the voters in a 2008 statewide i
election. Then in March, 2011, sponsors including the intervenors herein filed
a borough initiative popularly denominated the "Save Our Salmon Initiative"
(SOS Initiative) with the L&PB clerk. The proposal sought to amend the
borough's land use code to prohibit issuance of a permit for mines exceeding
i Id. at 20.
Order and Decision
Pebble Ltd. P'ship at at. u, Conley at al.
3 Di-I 1-00053CI
Page 5 of 29
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AGENDA ITEM #2.e.
640 acres that would have a "significant adverse impact" on salmon-bearing
waters. The initiative defined such an impact as:
a use, or an activity associated with the use, which proximately
contributes to a material change or alteration in the natural 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 effects
The initiative also provided that an applicant "should" obtain a L&PB permit
before "obtaining" state and federal ones.6 The parties implicitly agree that the
SOS Initiative effectively mandates co-equal borough and state permitting
authority as to mining activities potentially adverse to salmon streams. The
court will therefore refer to the SOS Initiative as a `gatekeeper" or "co-equal"
permitting scheme.
On May 2, 2011, PLP filed a pre-election complaint for declaratory and
injunctive relief challenging L&PB's authority to certify the SOS Initiative. This
court granted representative SOS Initiative sponsors leave to intervene on May
24; 2011. By order of July 25, 2011, the court deferred decision on pending
motions for summary judgment until after the upcoming October L&PB
5 Lake& Peninsula Borough Code(L&PBC)§09.07.020.
e Td.
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election. By a 37-vote margin, 280 L&PB voters enacted the initiative into law
on October 4, 2011. Then on October 28, 2011, the state filed a declaratory
judgment action challenging its constitutionality.? On January 10, 2012, this
court consolidated the two cases over the partial objection of the state. The
parties withdrew their pre-election motions for summary judgment, and PLP
filed an amended complaint.
In May 2013 all of the parties to the consolidated case filed motions for
surhmary judgment. The state contends that Article VIII, the natural resources
section of Alaska's Constitution, grants "pervasive state authority" to the
legislature that precludes concurrent L&PB regulatory jurisdiction.
Alternatively, the State argues that the legislature has impliedly preempted the
SOS Initiative by delegating control of mining to DNR. Lastly, the state argues
that operations on its land are immune from the SOS Initiative.
PLP joins in the state's constitutional claims, and also contends that the
SOS Initiative is an impermissible appropriation of state assets. PLP further
argues that the SOS Initiative violates equal protection, is unconstitutionally
vague, and wrongfully circumvented L&PB's Planning Commission.
L&PB also moves for summary judgment, because plaintiffs' facial
challenge to the SOS Initiative is not ripe. It contends the SOS Initiative is
proper regulation under borough land use planning authority. in turn, the
intervenors join L&PB's ripeness argument, and address initiative certification
7 State u. Lake and Peninsula Borough, No. 3AN-i 1-118330 (Anchorage Superior Ct.)_
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•
and other issues first raised in PLP's pit-election summary judgment motion,
now withdrawn. And they argue, like L&PB, that the SOS Initiative is not
constitutionally or statutorily preempted.
The parties agree that the SOS Initiative campaign materials, pro and
con, often characterized the SOS Initiative as an outright ban of the Pebble
Mine.8 Initiative advocates in general portrayed the mine as a broad threat to
the wellbeing of L&PB's populace. For example, the Bristol Bay Native
Corporation distributed a letter to its shareholders expressing support for the
SOS Initiative:
After much research and deliberation, jthe Bristol Bay Native
Corporation] has concluded that the proposed Pebble Mine project
. . is too big, of the wrong type and in the wrong location. It
poses unacceptable risks to salmon and other resources of the
region. These risks threaten the economic, social and cultural
wellbeing of our shareholders and all residents of the Bristol Bay
region.9
Other less measured campaign rhetoric depicted the SOS Initiative as a de
facto ban on large scale mining,
Under the L&PB code as amended by the SOS Initiative, PLP must apply
to the borough manager, who would then submit the permit application to the
planning commission for review, subject to an appeal to the assembly.') The
commission is a lay body with no full-time staff. At oral argument, L&PB noted
that it has no process or personnel in place to manage a permit application,
See, e..g., State's Mot. for Summ. J. Exs. 4-23.
9 State Mot. for Summ. J. Ex. 9.
tO L&PI3 Code§09.07.040(A), (C).
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but that it will retain an expert if the SOS Initiative survives this court
challenge.
In pre-election briefing the L&PB lauded the SOS Initiative as resolving
all permitting issues without further resort to laborious and expensive state
and federal permitting processes. As a first-in-line gatekeeper, L&PB could
spare Pebble the expense of a federal permit application:
If the borough denies all permits for a large-scale mine as
contemplated. by the initiative, then the mining companies and
Borough can avoid going through the lengthy and expensive federal
permitting process altogether.)I
L&PB did not envision a scientifically rigorous permitting process:
(The] initiative does not require any special skill or expertise. No
special knowledge or experience is needed under the initiative to
prohibit large-scale mining operations significantly affecting
[salmon-bearing] streams, which is the overall purpose and effect
of the initiative. . . . Since there is effectively no permitting process
to go through for large-scale mining, no specialized knowledge or
experience is needed.72
The borough later receded from such innuendoes of inevitable permit denial,
instead characterizing them as views of the sponsors.13
The existent state and federal permitting regime would require upwards
of fifty discrete permits for the Pebble Prospect. At the state level, multiple
agencies, including the Departments of Natural Resources, Environmental
Conservation, and Fish and Game would review PLP's permitting applications.
They would utilize the expertise of mining, gcotechnical, civil, and
L&P6 Opp'n to PL.P s Mot. for Sun-an.J. 13 (pre-consolidation with 3AN-1 1-11833 CI).
la ld.
t3 L8t.P1 Canso!. Opp'n to Pls.'Mot. for Summ.J. 8..
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environmental engineers, as well as geologists, geochemists, meteorologists,
ground and surface water hydrologists, fish habitat biologists, botanists, and
air quality experts.]"
III. APPLICABLE LAW
This is an action for a declaratory judgment. The superior court has
jurisdiction pursuant to AS 22.10.020(g).
Article X of Alaska's Constitution emphasizes that the powers of local
governments shall be broadly construed:
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.15
Specifically, Article X § 11 confers to local governments any authority "not
•
prohibited by law or charter." The state legislature has granted planning,
platting, and land use regulation authority to home rule boroughs.16
Article VIII of Alaska's Constitution devolves control of all state lands to
the Alaska legislature.t7 It reads in pertinent part:
§ 1. Statement of Policy
It is the policy of the State to encourage the settlement of its land
and the development of its resources by making them available for
maximum use consistent with the public interest.
Affidavit of Tom Crafford,State Mot. for Summ.J. 14-15.
Is Alaska Const. article X, § 1.
16 AS 29.35.180(b).
IV State, Dep't of Natural Resources v. Alaska Rioenvays, Inc., 232 P.3d 1203, 1212 (Alaska
2010).
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§ 2. General Authority
The legislature shall provide for the utilization, development, and
conservation of all natural resources belonging to the State,
including land and waters, for the maximum benefit of its people.
§ 4. Sustained Yield
Fish, forests, wildlife, grasslands, and all other replenishable
resources belonging to the State shall be utilized, developed, and
maintained on the sustained yield principle, subject to preferences
among beneficial uses.
§ 5. Facilities and Improvements
The legislature may provide for facilities, improvements, and services
to assure greater utilization, development, reclamation, and
settlement of lands, and to assure fuller utilization and development
of the fisheries, wildlife, and waters.
§ 8. Leases
The legislature may provide for the leasing of, and the issuance of
permits for exploration of, any part of the public domain or interest
therein, subject to reasonable concurrent uses. . .
§ 12. Mineral Leases and Permits
The legislature shall provide for the issuance, types and terms of
leases for coal, oil, gas, oil shale, sodium, phosphate, potash, sulfur,
pumice, and other minerals as may be prescribed by law. . . .
Pursuant to Article VIII § 2, the Alaska Legislature comprehensively
conferred authority over all aspects of mining in Alaska to DNR, ordering all
other state departments to consult with DNR before acting in ways that would
affect any aspect of such mining:
§ 27.05.010. Department responsible for mineral resources
(a) The department has charge of all matters affecting exploration,
development, and mining of the mineral resources of the state . . .
and the administration of the laws with respect to all kinds of
mining.
(h) The department is the lead agency for all matters relating to the
exploration, development, and management of mining, and, in its
capacity as lead agency, shall coordinate all regulatory matters
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concerning mineral resource exploration, development, mining,
and associated activities. . . Before a state agency takes action
that may directly or indirectly affect the exploration, development,
or management of mineral resources, the agency shall consult with
and draw upon the mining expertise of the department.
Alaska Statute 38.04.005 requires DNR to allow maximum use of state lands
consistent with the public interest. AS 38.05.135(a) provides that mineral
deposits On state land are to be held open for exploration under permits or
leases conferred by DNR:
Except as otherwise provided, valuable mineral deposits in land
belonging to the state shall be open to exploration, development,
and the extraction of minerals. All land . . . may be obtained by
permit or lease for the purpose of exploration, development, and
the extraction of minerals. . . .
Under AS 38.05.300, state land parcels exceeding 640 acres may only be
withdrawn from mineral development by the legislature. AS 16,05.871 confers
authority on the Alaska Department of Fish and Game (ADF&G) to review land
uses which may pollute a salmon bearing stream.
IV. DISCUSSION
A. Is the initiative challenge ripe for decision?
L&PB, joined by intervenors, contends that a challenge to the SOS
Initiative is not ripe until the borough's planning commission denies PLP a
.permit. It views plaintiffs' challenge as factually undeveloped. L&PB disputes
plaintiffs' foreshadowing of an inevitable rejection; litigation is avoided if a
permit issues. Implicitly, L&PB contends that the state and PLP have no
immediate stake in the SOS Initiative's dilution of state control over mineral
development, absent permit denial.
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The statute conferring superior court jurisdiction over declaratory
judgment actions requires an "actual controversy."is The Alaska Supreme
Court discussed Alaska's ripeness doctrine in Brause v. State:19
The ripeness doctrine requires a plaintiff to claim that either a legal
injury has been suffered or that one will be suffered in the future.
The degree of immediacy of a prospective injury needed to satisfy
the ripeness doctrine has not been systematically explored in our
case law. . . . [There is no set formula that can identify whether a
case is or is not ripe for decision.20
Nonetheless the Court balanced the need for decision against the risks of
decision. The need to decide turns on the probability and gravity of the
anticipated injury absent a remedy. The risks of decision include ruling on
undeveloped facts, or on difficult and sensitive issues that could be
advantageously deferred.21
The Brause Court found unripe a challenge to a statute denying marital
recognition to same-sex partners. The Court concluded that the statute was
largely symbolic, and that litigation should await an actual denial of a marital
benefit. A useful dissent surveyed Alaska's ripeness jurisprudence, observing
that in general courts may adjudicate an injury consisting of a mere
"identifiable trifle."22 Ripeness existed even where applicants for limited-entry
IS AS 22.10.020(g).
1D 21 13.3d 357 (Alaska 2001).
20 Id. at 359.
11 Id.
22 ld. at 360 (Bryner,J., dissenting) (quoting Bowers Office Prods., Inc. it University of Alaska,
755 P.2d 1095, 1097 (Alaska 1988)).
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Fishing permits had not yet been turned down.23 It is "bad law and bad policy to
approve a rule which shuts the courthouse doors until . . . it may be too late to
obtain meaningful judicial relief."24
The Alaska Supreme Court revisited the topic in State v. ACLU of
Alaska.Zs The Court declined to review the constitutionality of a statute
criminalizing possession of small amounts of marijuana. The Court held that
deferring decision would impose minimal hardship on the marijuana-smoking
plaintiffs because they were concurrently subject to federal prosecution. And
the Court discerned decisional risks because case-specific facts might have
induced it to qualify earlier decisions decriminalizing possession of small
amounts in private homes. Finally, due respect for the legislature mandated
that the Court declare a statute unconstitutional only when necessary.
As in Brause, the ACLU of Alaska decision generated a bewildered
dissent that chided the majority for overlooking long-established Alaska
precedent. It noted that "Alaska law on ripeness historically has kept the
barriers to the courtroom low in order to favor access for Alaska's citizens to
Alaska courts." The dissent surveyed prior decisions and concluded:
IWje routinely accept and decide cases raising the constitutionality
of statutes as an abstract proposition. . . . land] have done so in
virtually every major constitutional case to come before us in
recent years. . . . Indeed, illustrative of Alaska's lenient ripeness
jurisprudence, of eighteen cases since 2001 that raised abstract
constitutional issues, we reached the merits in seventeen, often
23 Id. at 361 (citing Johns v. Commercial Fisheries Entry Commit, 699 P. 2d 334 (Alaska 1985)).
21 Id. (quoting Johns u. Cornrtrercial Fisheries Entry Cornm'n, 699 P. 2d at 338).
25 204 11.3d 364 (Alaska 2009).
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without even discussing ripeness. In only JBrausej . . . did we
uphold a ripeness challenge.26
The dissent's empirical observations powerfully suggest that Brause and ACLU
are relatively rare outliers.
L&PB asserts that making PLP defer litigation until permit denial is
harmless, because PLP will prepare for permitting regardless of the court's
decision on ripeness or on the merits. But the real burden upon PLP lies
elsewhere. In September of 2013 the British mining giant Anglo American
withdrew from PLP, abandoning its $541 million investment and citing a need
to focus on more promising prospects. Anglo American's departure left
Northern Dynasty Minerals the sole stakeholder in the project. Northern
Dynasty announced that it would seek a replacement partner. Any investor
conducting due diligence will necessarily factor in the risks of permit denial.
That the SOS Initiative exerts a dissuasive effect on potential investors seems
inarguable.
The state also expresses a clear need for decision. If local government
entities statewide impede natural resource development via permitting
ordinances, the regulatory climate in Alaska is profoundly affected.
Disincentives to investment adversely affect the State's royalty and tax
revenues. From the state's perspective, a degradation of the investment climate
damages all Alaskans from the moment such risks are manifest in local laws,
and not only at the moment of permit denial.
26 Id. at 374-75.
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This case falls squarely within the broad swath of Alaska cases found,
explicitly or impliedly, to be ripe for adjudication. ACLU of Alaska and Brause
are inapposite broad-brush social-issue challenges to legislative power, where
the palpable risks of decision were not counterbalanced by punishing
hardship. Indeed, the wisdom of the Brause abstention was highlighted within
four years by an issue-specific decision entitling publicly employed same-sex
domestic partners to insurance and other employment benclits.27 The instant
case is devoid of comparable justification for delay, and so is ripe for decision.
B. Is the SOS Initiative an outright ban on large scale mining?
The Alaska Legislature has reserved to itself sole authority over outright
closures of state land to large-scale mineral development,28 The state
repeatedly characterizes the SOS Initiative as an absolute prohibition of large
scale mineral development within L&PB.29 It projects this stance onto the L&P13
electorate, because both supporters and detractors of the SOS Initiative
sometimes portrayed it as an outright ban on large-scale development 3o The
state then argues that this inference of the voters' intent should inform the
court's textual interpretation of the SOS Initiative, consistent with the holding
in Alaskans for a Common Language, Inc. u. Kritz;
27 See Alaska Civil Liberties Union v, State. 122 P.3d 781 (Alaska 2005).
iE AS 38.05.300(a).
29 See, e.g., State Reply to Mot. for Sumo,J. 2.
3° Id.
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[When we review a ballot initiative, we look to any published
arguments made in support or opposition to determine what
meaning voters may have attached to the initiative. . . To the
extent possible, we attempt to place ourselves in the position of the
voters at the time the initiative was placed on the ballot, and we try
to interpret the initiative using the tools available to the citizens of
this state at that tirne.31
L&PB counters that voter intent is irrelevant, because the SOS
Initiative's text is unambiguous. L&PB pledges that it will marshal expert input
in aid of its administrative permitting process, and that it will dispassionately
weigh evidence such that the outcome of a PLP application is not a foregone
conclusion,
The state's contention that overheated campaign rhetoric plus L&PB's
pre-election legal posturing should decisively inform textual interpretation of
the SOS Initiative is unpersuasive. While voter intent can resolve ambiguity in
an appropriate case, the state does not portray the SOS Initiative as textually
ambiguous. Its provisions set forth standards for decision and define an
administrative process. Campaign predictions that the Pebble project could not
survive such scrutiny were just that: predictions amounting to political
opinion. But no reasonable resident could have concluded, even in the heat of
battle, that borough officials would ignore the initiative's mandated process to
further a political agenda.
31 170 P.3d 183, 192-93(Alaska 20071 (citations omitted).
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The state's fallback textual analysis comports with its voter-intent one—it
reads the SOS Initiative as a de facto ban on all large-scale mining. The state
focuses on the initiative's alternative-use clause, which proscribes:
a use, or an activity . . . which proximately contributes to a material
change or alteration in the natural or social characteristics of a part
of the state's coastal area and would limit the range of alternative
uses of the resources of the coastal area . . . 32
The state argues that this standard is so broad that any alternative land use
would run afoul thereof. For example, Pebble's large geographic footprint would
be read to limit on-site subsistence hunting in violation of the alternate use
clause.33
But courts often import a rule of reason into legislation, or decline to
adjudicate facial challenges based on hypothetical worst-case interpretations
thereof. The court accordingly reads a rule of reasonable materiality into the
alternate-use clause: would the proposed use materially impede, for example,
subsistence hunting within the coastal region as a whole? So interpreted, the
SOS Initiative does not inevitably ban large-scale mining within the L&PB, but
rather imposes a permitting regime with articulated standards to be evaluated
by neutral borough adjudication. No controlling intent of the voters requires a
contrary reading of the initiative.
3= t.:1'13c § 09.07.020.
33 State Opp n to Mots. for Summ. J. 23-25.
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C. Does the Alaska Constitution confer exclusive gatekeeper permitting
authority to the State of Alaska?
Article X § 11 of the Alaska Constitution grants home rule boroughs "all
legislative power not prohibited by law or by charter."3" But the state argues
that Article VIII of the Alaska Constitution carves out a zone of"pervasive state
authority" over natural resource management, wherein home rule boroughs
may only exercise powers expressly delegated by the legislature.35 Since state
law contains no such express grant of mineral development permitting power,
the state argues that the SOS Initiative is invalid.
The state buttresses its lead argument---a constitutionally based
requirement of affirmative state delegation of power, plus no delegation in
fact—with a statutory one: the legislature has so comprehensively delegated
natural resource authority to DNR that any assertion of concurrent gatekeeper
jurisdiction by LP&B is impliedly prohibited.36 In turn, L&PB and the
intervenors assert the opposite: that the statutory grant of land use planning
authority, liberally construed, forecloses any finding of preemption of the SOS
Initiative. But all parties implicitly agree that a judicial finding of preemption
by implied prohibition alone is sufficient to decide the case.
The state rests its constitutional argument on a doctrine of "pervasive
state authority" announced in the 1971 case Macauley v. 1-fildebrand.37 The
3'Alaska Const. art. X, § I I.
33 State Mot. For Summ. J. 18-19.
36 td. at 43.
.'491 P.2d 120 (Alaska 1971).
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Macauley court held that Article VII of the Alaska Constitution so thoroughly
confers authority over statewide education policy to the legislature that only
express statutory grants of education-related power to local governments may
authorize local regulation. But in over four decades since Macauley was
decided, the doctrine has never been extended to areas beyond education.
Subsequent cases have instead relied upon express or implied statutory
preemption of classes of local government action.
Were this court to decide the case on constitutional grounds, it would
frame the issue differently than the state has, by asking instead whether
Article VIil's mandate that natural resources be maximally developed for the
benefit of all Alaskans affirmatively precludes the legislature from delegating
co-equal permitting authority to local governments unconcerned with statewide
equity. The SOS Initiative asserts, for all practical purposes, that the L&PB is
an equal sovereign with the state as to significant adverse mining impacts on
salmon bearing streams. This assertion that a local planning and zoning
commission may exercise veto power over a natural resources project is
unfettered by any obligation to consider the interests of all Alaskans. Rather,
the SOS Initiative empowers the commission to unilaterally focus upon local
interests by calibrating its "significant adverse impact" standard impossibly
low.
But it is unnecessary to resolve whether the legislature could
constitutionally delegate such extraordinary power, if the court first determines
that the legislature has not done so. The court can refrain from unnecessarily
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resolving the constitutional question if the plaintiffs prevail on implied
statutory preemption grounds.aa Accordingly the court first turns to the
statutory issue of implied preemption.
D. Is the SOS Initiative preempted by state law?
Several Alaska Supreme Court cases in the 1970s refined the boundaries
between state and local government power. First, in the 1970 case Chugach
Electric Association u. City of Anchorage"} the State Public Service Commission
authorized the Chugach Electric Association to operate within a specified area
of Anchorage. Anchorage, a home rule municipality, then overrode the
Commission and denied the association a building permit on local regulatory
grounds. Anchorage argued that Article X §11 meant that only express
legislative constraints limited its powers. The Court disagreed, and instead
adopted a "local activity rule" to resolve direct state-local conflicts of law.411 It
decided that allocation of public utility service areas was a matter of statewide
concern such that the commission's regulatory power trumped the local
building permit denial.
But within a short time the Court receded from the beguiling simplicity of
the Chugach local-activity formulation. In 1974 the Court in Jefferson v. Staten
found that a state statute overruled a citizen's procedural objection to the
38 See, e.g., Alaska Fish& Wttdtife Conservation Fund a State, Dept of Fish&Game, Lid. of
Fisheries, 289 P.3d 903, 907 (Alaska 2012)("if a case may be fairly decided on statutory
grounds or on an alternative basis, we will not address the constitutional issues").
39 476 P.2d 115 (Alaska 1970).
° id.at 122-23.
41 527 P.2d 37 (Alaska 1974)_
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transfer of assets between the City of Anchorage and the new configuration of
the Municipality of Anchorage as a home rule borough. The Court shifted from
its local activity formulation in Chugach to a firm focus on legislative intent: did
the legislature expressly or impliedly decree local government abstention from a
particular area of concern?
[trio say that home rule powers are intended to be broadly applied
in Alaska is not to say that they are intended to be pre-eminent.
The constitution's authors did not intend to create city states with
mini-legislature[s]. They wrote into Art. X, § I I the limitation of
municipal authority "not prohibited by law or charter." The test we
derive from Alaska's constitutional provisions is one of prohibition,
rather than traditional tests such as statewide versus local
concern. A municipal ordinance is not necessarily invalid in Alaska
because it is inconsistent or in conflict with a state statute. The
question rests on whether the exercise of authority has been
prohibited to municipalities. The prohibition must be either by
express terms or by implication such as where the statute and
ordinance are so substantially irreconcilable that one cannot be
given its substantive effect if the other is to be accorded the weight
of law 42
The Jefferson Court served notice that it would not find an implied preemption
of local regulation merely because the State had extensively legislated in a
particular area:
We reaffirm our rejection of the doctrine of state pre-emption by
"occupying the field." We will not read into a scheme of statutory
provisions any intention to prohibit the exercise of home rule
authority in that area of the law. If the legislature wishes to
"preempt" an entire field, they must so state"3
42 Jefferson v. State, 527 P.2d 37, 43 (Alaska 1974) (emphasis added) (footnotes and quotations
in original omitted).
a3 Id. at note 33 (citation omitted).
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Jefferson involved an express conflict between a state statute and a local
ordinance, and the Court found the former preempted the latter. Four years
later, in Johnson u. City of Fairbanks,44 the Court decided an implied
preemption case. Fairbanks had enacted a notice-of-claim provision requiring
potential litigants to announce their intention to sue the city well before the
running of the state statute of limitations. The Court held the state statute of
limitations impliedly preempted shorter municipal notice-of-claim provisions,
even though such ordinances merely conditioned but did not abrogate the
statute of limitations. The Court telegraphed its sense that unequal treatment
of potential litigants based on locale was unfair, and not what the legislature
desired. It reasoned:
The two-year statute of limitations reflects a state policy. . . . The
uniform limitations period impliedly allows every victim of tortious
conduct in Alaska, regardless of where he resides and regardless of
whether the alleged tortious conduct was by a governmental unit
or not, to commence an action for damages within two years
without complying with any other time limit. We think the notice of
claims provision in the Fairbanks City Charter seriously impedes
implementation of this statewide legislative policy and therefore is
impliedly prohibited.45
Shortly after the Court's decision in Johnson it further refined its
implied preemption standard, articulating the applicable preemption
standard in terms of"substantial interference":
Merely because the state has enacted legislation concerning a
particular subject does not mean that all municipal power to act
on the same subject is lost We believe that an appropriate
4.' 583 P.2d 181 (Alaska 1978).
45 Id. at 187.
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accommodation can be made between the state and general law
municipalities by a rule which determines preemption to exist, in
the absence of an express legislative direction or a direct conflict
with a statute, only where an ordinance substantially interferes
with the effective functioning of a state statute or regulation or its
underlying purpose.46
Applying this standard, the Supreme Court held that the Bristol Bay Borough's
imposition of a local fish sales tax did not substantially interfere with the
extensive state fish and game regulatory regime.
Guided by this precedent, the court turns to the issue at hand. The
legislature's grant of power to DNR does not mince words. DNR has "charge of
all matters affecting the mineral resources of the state."'" Similarly DNR is
designated the lead state agency on such issues, and all other agencies "shall
coordinate all regulatory matters concerning mineral resource exploration,
development, mining, and associated activities" with DNR 48 But not even the
otherwise dominant DNR is vested with power to close an area to large-scale
mining; that decision is for the legislature alone.ae
The legislature has also granted home rule boroughs authority to engage
in land use planning and regulation.50 And, as the intervenors point out,
boroughs do regulate mining operations.51 The City and Borough of Juneau
Code regulates the mining industry for the purpose of "minimizing the
Liberczti v. Bristol Bay Borough, 584 P.2d 1115, 1122 (Alaska 1978) (emphasis added).
"AS 27.05.010(a).
48 AS 27.05.010(h),
+^ AS 38.05.300.
s^AS 29.35.180(4
5' Intervenor's Mot. for Sumzn.J. 37-39,
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environmental and surface effects of mining projects for which an exploration
notice or mining permit is required."52 In the same vein, the Fairbanks North
Star Borough imposes "conditions for mining use licenses to ensure that
mining activities do not result in the creation of hazards or undue degradation
of borough land."53 And the North Slope Borough created a Resource
Development District to preclude activities which will `permanently and
seriously impair the capacity of the surrounding ecosystem to support the
plants and animals upon which Borough residents depend for subsistence."5'
How, wonder the intervenors, have such ordinances survived for decades if the
state is the sole arbiter of mineral development?
The mere existence of other local government permitting regimes for large
scale mineral extraction does not establish that the SOS Initiative is legitimate,
Certain tailoring of extractive processes to local standards is not obviously
incompatible with the state scheme. For example, local regulation of dust,
noise, and transportation routes do not clash with DNR's authority insofar as it
fills in unregulated interstices of state law.
To the extent that broad regulatory assertions of authority in home rule
borough codes theoretically conflict with DNR authority but lie dormant, the
state has scant incentive to challenge them. But the code provisions
intervenors reference are not analogous to the asserted equal and concurrent
53 Juneau Code of Ordinances§49,65.110(a).
53 Fairbanks North Star Borough Code§25.20,100(B).
5" North Slope Borough Code§ 19.40.080(A§1).
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AGENDA ITEM #2.e.
gatekeeper natural resources regulation at bar here. The SOS Initiative goes
further than simply tailoring mining processes under the borough's land use
authority; it instead forecloses the state's due exercise of its natural resources
authority. And L&PB would derive this co-equal power not from state mineral
development statutes but from a generic statutory grant of land use planning
authority to local governments. The specific and comprehensive statutory
designation of natural resources management authority to the state may not be
overridden by a general grant of land use planning authority to home rule
boroughs.
The state suggests that even if the SOS Initiative is not an outright ban
on large scale mining within the L&PB, it is a de facto one. The argument has
some force. The initiative campaign likely created in L&PB residents some
expectation that the Pebble project could never withstand local scrutiny. It may
be unrealistic to expect the five members of the land use planning commission,
or the elected assembly members, to be immune from pressures inhering in
these expectations. Any local decision green-lighting Pebble would be seen by
many as a betrayal of local values. Likewise L&PB decision makers may have
an incentive to demand near zero risk, or at least a level of risk lower than
might be tolerated by their state and federal counterparts. This tendency
towards risk-aversion may be exacerbated by fear of the unknown. To the
extent that the L&PB lacks the financial and technical resources to
comprehensively evaluate a multi-faceted undertaking as massive in scale and
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AGENDA ITEM #2.e.
technically complex as Pebble, a rational response to ensuing unevaluated
risks might result in reflexive permit denial.
It is perhaps useful to recall the course of the state's history with its
preeminent natural resource development project: the North Slope oilfields and
the Alyeska Pipeline. Local concerns in the Arctic predicted that a pipeline
would interfere with migratory patterns of the region's massive caribou herd
and endanger subsistence harvest. Had any local political entity acted with
SOS Initiative-style veto power and denied a permit for the pipeline, the entire
course of state history would have been significantly altered. Likewise, Prince
William Sound representatives of the local fishing interests could have argued
that the risks of an oil spill would be catastrophic to their livelihood. Later
events would have shown such a claim to be prescient. But in any case—
caribou migration, maritime oil spill, or as here, watershed pollution--the
successful assertion of self-proclaimed local veto authority has the potential to
supersede state-guided natural resources development with no input from the
political community as a whole. It is precisely this level of veto authority that
the SOS Initiative confers upon the L&PB's land use planning commission, by a
majority of 37 votes.
Is such a power shift consistent with the implied intent of the legislature
as inferred from the statutes through which the legislature has expressly
apportioned natural resources management power to DNR? The most pertinent
statute reads:
§ 27.05.010. Department responsible for mineral resources
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AGENDA ITEM #2.e.
(a) The department has charge of all matters affecting exploration,
development, and mining of the mineral resources of the state . . .
and the administration of the laws with respect to all kinds of
mining.
(b) The department is the lead agency for all matters relating to the
exploration, development, and management of mining. . . . Before a
state agency takes action that may directly or indirectly affect the
exploration, development, or management of mineral resources,
the agency shall consult with and draw upon the mining expertise
of the department.
If the SOS Initiative holds, DNR is no longer in charge; it will be forced to share
power with a local government that, unlike all state agencies, may ignore DNR's
rulings. Under such a scheme, DNR no longer functions as the sole gatekeeper
from whom ")a]Il land . . . may be obtained by permit or lease for the purpose of
exploration."55 And to the extent that the SOS Initiative may be seen as
potentially closing the entire 1-5&PB watershed to large scale mineral
development, it would violate the clear purpose of AS 38.05.300, through
which the legislature jealously guarded that prerogative to itself.
This is not a case about the wisdom of developing the Pebble Mine in a
salmon-bearing watershed, and the court obviously takes no position on the
matter. Rather, it is a case about who is to decide whether Pebble poses
unacceptable risks. By so definitively conferring gatekeeper permitting
authority upon DNR, the legislature impliedly prohibited local governments
from assuming a concurrent role. Such a grant of power to local governments
would Balkanize state natural resource policy. "The constitution's authors did
ss AS 38.05.135(a)
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AGENDA ITEM #2.e.
not intend to create [of home rule boroughs[ city states with mini-
legislature[s]."5G Nor did the legislature so intend when it conferred land use
planning authority on home rule boroughs. The SOS initiative is "so
substantially irreconcilable" with state natural resource statutes and the
constitutionally based principles informing them that "one cannot be given its
substantive effect if the other is to be accorded the weight of law."57
V. ORDER
The court finds that state law impliedly prohibits the SOS Initiative, and
accordingly enjoins its enforcement. The court grants the motions for summary
judgment by the state and PLP consistent with the precepts stated above, and
likewise denies the motions for summary judgment of L&,PB and the
intervenors. The court finds it unnecessary to reach contentions of the parties
not here discussed in light of its disposition of the v emption issue.
DATED at Anchorage, Alaska thi- day of March, 2014.
certify that on 7i^ /9 -/L1
a copy of the above was c-mailed to each of ohn Suddock
the following at their addresses of record:
Matthew Singer Howard Trickey
•erior Court Judge
Aisha Tinker Bray Gary Zipkin
John Baker Ruth Tlotstein
Joanne Grace Margaret Patton Walsh
Scott Kendall Victoria Clark
Nancy Wainu;right Daniel Cheyettc
/1—t —` .
Mary Brault-Judicial Assistant
56 Jefferson u. State, 527 P.2cl 37,43 (Alaska 1974) (quotation and citation in original omitted).
7 Id.
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Save Our Salmon Initiative Amicus Brief
AGENDA ITEM #21.
kraffl 3t : 1 Coy ' r - i flfflae
Ass embly,Workiesssen '?` August 28,2015
Bud Cassidy,
Manager
Managers Office r :
s'rf •Borough's Chief Administrative Officer
s', 11 r 'Supervises 46 Borough Employees—4 Department Heads and 3 Office Staff
Bud Cassidy,Manager
h •'j, s y ; • Prepares and Manages a $56,000,000 Budget
Loun Whsddon,.
•Manages a multimillion dollar Capital Improvement Program.
:y Officer/Executive',
'Y=s ;, •Administers the policies of the Assembly and Borough
Asslslonl,,
• Wki ••mgt•,'' •Enforces Borough lows and ordinances
i Bab Schoize,. '' '
i.,,.,., spec -Negotiates labor contracts and leases
4i Resource Monogement
OfF¢er
' ,.xx $ Lauri Whiddon,
Meagan Christiansen,i
/,pt Writer/Special
HR Officer/Executive Assistant
I
Projects Support w. -Conducts recruitments to hire full time and temporary staff.Completes paperwork associated
with position transfers and promotions.Completes hiring process(background checks,reference
n>F trtt,.z checks etc.),and performs new employee orientation;
•Finalizes paperwork associated with the termination(retirement,ending employment)of KIB
employees;
•Works with attorney and Department directors on personnel issues/grievances at the manage-
• ment level,to guarantee that decisions ore consistent with legal requirements of personnel low the
collective bargaining agreement and the Personnel Manual;
e e¢p§ri-4-a. G6a15— ,-I •Assists deportment heads in staff evaluations(making sure they are legal and complete);
6`f K]6BUd'get `.. e i •Administers the Family Medical Leave Act(FMLA);
Preparation of,a
`va,�' •Key player an educating,reviewing,documenting and forwarding the Salary and Compensation
F•VlSibudge tre- k Study to the Personnel Advisory Board;
getting borough s
& 'I •Coordinates training for Deportment Heads,borough employees;
mturrenttlebrstructure
.+...te+'',rov a •Steil person and secretary to the Personnel Advisory Board to include compiling the packets,
1 and protected rove
jam'" + " drafting minutes and coordinating members;
ynue
kublr and "i' •Functions as Executive Secretary to the Manager to include scheduling meetings,travel,purchas-
=..,r,�,.,. c. es,staff directory,coordinates employee awards;
ei Conduct a landisale
•Acts as the Records Coordinator for the Manager's Office sure that email,correspondence,and
ems# } files are public documents that are easily retrievable.
• 17.Meet Assem• 'Sire-z I.
(_Media
Hireta HR iD rector *<I'
}-and% Manager
Page 51 of 52
Manager's Office Update to the Assembly
AGENDA ITEM #2.f.bftifl Vim4 e 3 fit
4 11 eat.
Bob Schein",
Resource Management Officer
• Preparing for a Spring 2015 Public Land Offering.
Works with the Planning and Zoning Commission to identify candidate sites for future land disposal;
Composes staff reports for Commission review to make prospective Borough owned parcels surplus to the public's needs;
Composes staff reports for Commission to hove candidate parcels rezoned from the"Public Use lands"zoning district to
the appropriate zoning district;
Works with surveyors to subdivide potential land sale candidate parcels.
Prefects title to parcels schedule for sale
Attends Assembly meetings to move the parcels forward for land sale.
Coordinated environmental clean up of contaminated soil and other hazardous material found on parcel in preparing far future land
sole.
• Disposal of Borough land to Adjacent land owners and Non-profits.
Works with Applicant,Commission and Assembly to prepare necessary case work,surveys and deeds for transfer.This included adja-
cent private property owners.
• Works with lessees and lease issues.
Modification of lease boundaries—Kodiak Regional Aquaculture Association—hatchery lease at Pillar Creek.
• Acquiring Clear Title to Borough land from the State of Alaska
Acquires survey instructions,hires surveyors,presents survey plat to the Commission for approval,acquires potent.
• Update to Title 18—Borough Real Property.Attends meeting of PAC and commission on code section modifications.
Meagan Christiansen,
Grant Writer/Special Projects Support
• Grants
A.Coordinated and submitted Landfill Municipal Matching Grants approved by the Assembly as the#1 FY15 CIP Project.
B.Coordinated and submitted Alaska Clean Water Fund Loan Application for landfill project;
C.Submitted and administers two Coastal Impact Assistance Program grants for metals clean up in villages and trail hardening;
D.Active in looking and preparing grant opportunities for alt KI8 projects and programs.
• Special Projects
A.Assigned to coordinate effort to meet Assembly's Strategic Plan Goals and Objectives
B.Member on the Management team—Union Negotiations;
C.Coordinates and develops Federal,Borough wide community and KIB CIP lists;
D.Website Administrator/coordinator of public survey on Assembly Strategic Plan/Online surplus sale/auction of
excess borough equipment;
E. Borough's point person on potential changes on rural subsistence;
F.Trained in ICS and able to fill in during times of emergencies;
G.Member of the Socioi Media work group,
Page 52 of 52
Manager's Office Update to the Assembly
KODIAK ISLAND BOROUGH
WORK SESSION
Work Session of: of -it A4`- -`d, 2 19
Please PRINT your name Please PRINT your name
717-42.-—e A p,,,,, Au), �/icr ry -
c� ANN , ,�Ca' j ';
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