down parts of the proposition but also allowed other parts to move forward, and to appear on the ballot. Luckily BM 1 was defeated but Birch was disturbed by the precedent of the court in effect writing law by ap- proving language that was different than what sign- ers of petitions for the measure had approved. “No matter what your position was on Ballot Mea- sure 1, pro or con, it is not good for the court to be able to do this,” Birch said. His bill would require that the Lieutenant Governor to disqualify a ballot measure that has been changed, even in part, by the courts. Meanwhile, one important issue affecting mining that needs to be dealt with in legislation is to place sideboards on the ability of third party groups to file applications for in-stream flow reservations near po- tential mining projects to complicate the ability of a project to secure water for processing. Under current state law government agencies, but also any individual or group, can file for an in-stream flow reservation, in essence a right to maintain a cer- tain amount of flow of water in a stream. This would be important, for example, to ensure there is enough water sufficient for salmon or other species of fish , and that it would not be diverted to some other use, such as for an industrial process.
Former state Natural Resources commissioner Andy Mack, an attorney, was keenly interested in this. “The important word in the law is that water rights can go to a ‘person,’ which can mean a state or feder- al agency, an individual or a non-resident nonprofit,” Mack said. The concern is that assignment of water is a form of property right, and the state needs to tighten up its procedures for awarding these, whether in-stream flow water reservations or water allocations, under a different permit, for a water use such as in mining. Mack was particularly concerned with in-stream flow reservations obtained by federal agencies, which means the federal government could obtain property rights to water that should be under state management. Alaska law also awards these rights on a “first in time, first in right” basis, which opens the potential, in theory, that nongovernmental organizations could file for water rights as a strategy to impede a develop- ment project. The issue has wider implications than just mining, of course. Development of hydroelectric facilities, oil and gas development, and other projects could be affected. But mines being planned are typi- cally a target for nongovernmental organizations. “Water use is very important. It’s nearly impos- sible to do a large project in Alaska without touching
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January 2019
The Alaska Miner
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