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Thane Neighborhood Ass'n. v. Juneau (9/6/96), 922 P 2d 901
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Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the
attention of the Clerk of the Appellate Courts, 303 K Street,
Anchorage, Alaska 99501, phone (907) 264-0607, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
THANE NEIGHBORHOOD ASSOCIATION, )
ALASKANS FOR JUNEAU, ) Supreme Court No. S-6710
)
Appellants, )
) Superior Court No.
v. ) 1JU-93-1609 CI
)
CITY AND BOROUGH OF JUNEAU, ) O P I N I O N
)
Appellee, )
) [No. 4395 - September 6, 1996]
and )
)
ECHO BAY ALASKA, INC., )
)
Intervenor-Appellee. )
___________________________________)
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
Michael A. Thompson, Judge.
Appearances: Eric Smith, Anchorage, for
Appellants. John R. Corso, City & Borough
Attorney, Juneau, for Appellee City & Borough
of Juneau. James F. Clark, Terry L. Thurbon,
Robertson, Monagle & Eastaugh, Juneau, for
Intervenor-Appellee Echo Bay Alaska.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, Justices, and Carpeneti,
Justice, pro tem.
MATTHEWS, Justice.
Echo Bay Alaska, Inc., applied to the City and Borough of
Juneau in November 1990 for a large mine permit for the AJ Mine.
The proposed mine is located four miles from downtown Juneau. The
tailings that will result from the processed ore are to be pumped
into a tailings pond created by constructing a dam in Sheep Creek
Valley. The proposed dam will be 332 feet high and 750 feet long.
If the mine goes into production 100 million tons of tailings are
expected to be produced and pumped into the pond. The excess water
from the tailings pond will be discharged into Gastineau Channel.
The discharge from the tailings pond to the channel could be as
great as 250 cubic feet per second.
The City and Borough of Juneau Planning Commission
(Commission) approved the application in a notice of decision
issued on May 14, 1993. The approval was subject to a set of
conditions. The permit was to be issued after a financial warranty
was paid and after Echo Bay agreed to the conditions and signed a
mitigation agreement. Approval of the tailings dam and impoundment
and the discharge of wastewater was withheld until additional
information was provided.
Appellants, Thane Neighborhood Association (TNA) and
Alaskans for Juneau (AFJ), appealed the Commission's decision to
the City and Borough of Juneau Assembly (CBJ) on June 7, 1993.
Echo Bay was granted permission to participate as a party. The CBJ
heard oral argument on August 30, 1993, and issued a decision
denying the appeal on September 22, 1993. TNA and AFJ then
appealed to the superior court and Echo Bay was permitted to
intervene. On October 26, 1994, the superior court affirmed the
decision of the CBJ. In this appeal, the appellants argue that the
"CBJ impermissibly used a 'phased' approach in approving"the
permit and that the CBJ's finding that issuance of the permit
complied with standards set forth in the CBJ mining ordinance is
not supported by substantial evidence. In December 1995 CBJ and
Echo Bay filed a supplemental brief, and TNA and AFJ filed a
response addressing the issue of whether the "Planning Commission
[could] assure future compliance with the substantive standards for
mining operations . . . by imposing permit conditions requiring
future performance rather than by demanding pre-application-
approval demonstration of future ability to comply."
THE CODE
The review of large mine permits is governed by the Code
of the City and Borough of Juneau (CC&BJ) 49.65 (1989). CC&BJ
49.65.110 provides in part: "It is the purpose of this article to
foster the development of a safe, healthy and environmentally sound
mining industry while protecting the overall interests of public
health, safety and the general welfare and minimizing the
environmental and surface effects of mining projects for which an
exploration notice or mining permit is required."
The procedure for obtaining a large mine permit is
governed by CC&BJ 49.65.130. CC&BJ 49.65.130(b) requires an
application for a large mine permit to
be submitted in the form of a report contain-
ing sufficient information so that the depart-
ment can, after reviewing the application,
evaluate, in accordance with the standards of
subsection 49.65.135(a), the impacts[ (EN1)] de-
scribed in this subsection that the mining
operation may have on the city and borough.
The application shall contain a map on a scale
of 1:63,360 or a more detailed scale, a de-
scription of the mine site and affected sur-
face; a description and timetable of the
proposed mining operation, including all
roads, buildings, processing and related
facilities; a description and timetable of
proposed reclamation of affected surface; a
description of proposals for the sealing of
open shafts, adits and tunnels upon the com-
pletion or temporary cessation of mining
operations; a description of methods to be
used to control, treat, transport and dispose
of hazardous substances, sewage and solid
waste; and a description of other potential
environmental, health, safety and general
welfare impacts, as well as neighboring prop-
erty impacts and measures to be taken to
mitigate their adverse effects. The applica-
tion shall also contain additional information
normally prepared by the operator for its
feasibility studies and mining plans, includ-
ing information establishing the right to use
the affected surface, labor force characteris-
tics and timing, payroll projections, antici-
pated duration of the mining operation, con-
struction schedules, infrastructure descrip-
tion, and other information reasonably re-
quested by the department in the preapplica-
tion conference held pursuant to Section
49.15.330(b). . . .
(Emphasis added.) Likewise, CC&BJ 49.15.130(b), which governs
applications for land use permits in general, provides that "[a]n
application is complete when it contains all of the information
necessary to determine if the development will comply with all of
the requirements of the permit applied for."
CC&BJ 49.65.130(f) requires the Community Development
Department (Department) to conduct an application review, which
shall include, but not be limited to, the
following determinations: whether air and
water quality will be maintained in accordance
with federal, state, and city and borough
laws, rules and regulations; where sewage,
solid waste, hazardous and toxic materials
will be properly contained and disposed of in
accordance with federal, state, and city and
borough laws, rules and regulations; the
extent to which the operator will agree to
mitigate adverse impacts on the city and
borough; whether the mining operation will be
conducted in such a way as to minimize safety
hazards to the extent reasonably practicable
and will mitigate adverse impacts on the
public and on neighboring properties such as
those from traffic overloading, noise, dust,
unsightly visual aspects, surface subsidence,
avalanches, landslides and erosion; and wheth-
er appropriate historic sites will be protect-
ed.[ (EN2)]
CC&BJ 49.65.130(f) further provides:
The department shall form a recommendation as
to whether the permit should be approved
. . . . The department's recommendation may
include such conditions or stipulations as the
department deems to be reasonably necessary to
mitigate any adverse environmental, health,
safety, or general welfare impacts which may
result from the proposed mining opera-
tion. . . . If the [planning] commission
determines that the application, with
stipulations or conditions[ (EN3)] as
appropriate, satisfies the standards of
Sections 49.65.135 and 49.15.330, it shall
approve the application . . . .
The primary requirements for a large mine permit are
contained in CC&BJ 49.65.135 (1989), which states:
STANDARDS FOR ISSUANCE OF PERMITS AND CONDUCT
OF OPERATIONS. (a) In determining whether to
recommend issuance of a permit, the [community
development] department shall require that:
(1) The mining operations be con-
ducted in accordance with this article, Sec-
tion 49.15.330,[ (EN4)] and any other applicable
provisions of the city and borough code in
such a way as to mitigate adverse environmen-
tal, health, safety and general welfare im-
pacts;
(2) Air and water quality be main-
tained in accordance with federal, state, and
city and borough laws, rules and regulations;
(3) Hazardous and toxic materials,
sewage, and solid waste be properly contained
and disposed of in accordance with applicable
federal, state, and city and borough laws,
rules and regulations;
(4) The operator conduct all mining
operations according to the standards of the
city and borough as contained in this article,
Section 49.15.330, the permit, and any other
applicable provisions of the city and borough
code, so as to minimize to the extent reason-
ably practicable safety hazards and to control
and mitigate adverse impacts on the public and
neighboring properties, such as from traffic
overloading, noise, dust, unsightly visual
aspects, surface subsidence, avalanches,
landslides and erosion;
(5) Appropriate historic sites
designated as significant by the city and
borough be protected;
(6) Reclamation of the affected
surface be in accordance with the approved
reclamation plan of the operator; and
(7) With respect to a large mine
permit application, the operator negotiate and
enter into a mitigation agreement with the
city and borough . . . .
. . . .
(b) Reclamation of all affected surfaces
shall be completed as soon as is reasonable
after affected surface areas are no longer
being used in exploration and mining opera-
tions. Reclamation shall include the follow-
ing: cleanup and disposal of dangerous,
hazardous or toxic materials; regrading of
steep slopes of unconsolidated material to
create a stable slope; backfilling underground
shafts and tunnels to the extent appropriate;
adequate pillaring or other support to prevent
subsidence or sloughing; plugging, or sealing
of abandoned shafts, tunnels, adits or other
openings; adequate steps to control or avoid
soil erosion or wind erosion; control of water
runoff; revegetation of tailings and affected
surface areas with plant materials that are
capable of self-regeneration without continued
dependence on irrigation and equipment where
appropriate; rehabilitation of fisheries and
wildlife habitat; and any other conditions
imposed by the commission. Subsequent to the
issuance of a permit or the grant of authority
under an exploration notice, the operator's
compliance shall be measured against the
requirements contained in that permit or the
conditions of the exploration notice and the
operator's plans submitted with the permit
application or the notice.
THE LARGE MINE PERMIT
After making its determination, the Commission issued a
notice of decision, granting approval for the application for a
large mine permit subject to a set of conditions. The notice of
decision lists the six requirements that are applicable to all
conditional use permits as set forth at CC&BJ 49.15.330 and the
twenty-one requirements set forth in the mining ordinance (CC&BJ
49.65.100-195), and states its findings for each of these
requirements.
TNA and AFJ argue that the findings and conditions in the
notice of decision evidence a lack of compliance with the code.
They argue that the CBJ used a "'phased' approach in approving the
large mine permit." They point to three ways in which they believe
the CBJ engaged in phasing. First, the Commission withheld
approval of the dam, the tailings pond and marine water discharges
until further information was provided, yet granted the permit for
the remainder of the project. Second, the Commission approved the
permit, yet required Echo Bay to provide further information on
certain matters. Third, the Commission imposed as a condition that
Echo Bay obtain necessary permits from other agencies.
Echo Bay and CBJ argue that this phasing is consistent
with the code. CBJ argues "[t]he purpose of the mining ordinance
and the Commission is to grant permits, not to deny them." CBJ and
Echo Bay argue that "the CBJ mining ordinance does not vest the
commission with discretion to disapprove a large mine permit
application when the standards for permit issuance have been met,"
relying on CC&BJ 49.65.130(f), which states that "if the commission
determines that the application, with stipulations or conditions as
appropriate, satisfies the standards of Sections 49.65.135 and
49.15.330, it shall approve the application." (Emphasis added.)
CBJ and Echo Bay also contend that the mining ordinance
can be satisfied by including permit conditions which incorporate
the requirements of the ordinance -- it is not necessary to
determine in advance whether the plans submitted in the permit
application will satisfy those requirements. CBJ argues that the
purpose of the ordinance "is to mandate compliance not predict it."
DISCUSSION
This court must determine to what extent the City and
Borough of Juneau's code allows phasing when evaluating large mine
permit applications. This is a question of statutory interpreta-
tion which does not involve agency expertise. Thus, this court
will use its independent judgment. See Marlow v. Municipality of
Anchorage, 889 P.2d 599, 602 n.1 (Alaska 1995) (reviewing zoning
commission's and board's constructions of zoning ordinance under
independent judgment standard, as issues presented were "pure
questions of statutory construction which d[id] not involve agency
expertise").
A. Did the Commission Err by Granting a Large Mine Permit
Which Excluded the Tailings Dam and Impoundment and
Wastewater Discharge?
In this case, CC&BJ 49.65.135(a)(2) requires that "water
quality be maintained in accordance with federal, state, and city
and borough laws, rules and regulations." In its findings
concerning the AJ Mine, the Commission stated that it could not
"conclusively determine at this time with current information that
the proposed treatment system will maintain water quality in
accordance with federal, state and local laws, rules and regula-
tions." The Commission further found that "[t]he available data
shows that the federal limit for total suspended solids (TSS) will
not be met by the marine water discharge." CC&BJ 49.65.135(a)(4)
provides that a mine operator must "conduct all mining operations
. . . so as to minimize to the extent reasonably practicable safety
hazards." The staff had various concerns about the safety of the
AJ Mine's proposed tailings dam.
The Commission responded to these problems by withholding
approval of the tailings dam and impoundment and the marine
wastewater discharge components of the project. The Commission
decided that it would determine whether to approve the tailings dam
and impoundment and the marine wastewater discharge after the
receipt of further information.
While the Juneau code does have provisions allowing the
Commission to put conditions on a permit, see CC&BJ 49.15.330(g),
49.65.130(f), there is nothing in the code to support granting the
permit for a project as a whole, while excepting one part of a
project. Past decisions of this court make clear that phasing a
project by permitting it in stages is disfavored.
Three of our recent cases provide considerable guidance
as to what sorts of permit approval "phasing"techniques are
appropriate and what kinds are not: Trustees for Alaska v.
Gorsuch, 835 P.2d 1239 (Alaska 1992); Trustees for Alaska v. State,
Department of Natural Resources, 851 P.2d 1340 (Alaska 1993); and
Kuitsarak Corp. v. Swope, 870 P.2d 387 (Alaska 1994). In Gorsuch,
we held that in granting mining permits, "[Department of Natural
Resources (DNR)] may not ignore cumulative effects of mining and
related support facilities . . . by permitting facilities
separately." 835 P.2d at 1246. We ruled that when DNR reviews a
mining permit application, it must "consider the probable
cumulative impact of all anticipated activities which will be a
part of a 'surface coal mining operation,' whether or not the
activities are part of the permit under review." Id. "If DNR
determines that the cumulative impact is problematic,"we stated,
"the problems must be resolved before the initial permit is
approved." Id.
We explained that "[t]his type of 'concept approval' is
necessary to avoid a situation where, because of industry
investment and reliance upon a past mining permit approval, DNR
might feel compelled to approve a subsequent permit for a related
but environmentally unsound facility." Id. at 1246 n.6. We added
that "[i]n some cases, this may require concurrent, as opposed to
serial, review of separate, related permit applications,"while
"[i]n other cases, anticipated problems resulting from cumulative
impacts may require that approval of an initial permit be
conditioned upon satisfactory resolution of the problems
anticipated in subsequent permits." Id.
This court split in Gorsuch on whether an access/haul
road for the mining operation could be permitted under a separate
mining permit. The majority determined that a specific regulation
implied that separate permitting was allowed and that cumulative
impacts could be adequately considered under separate permitting in
that instance. Id. at 1245-46. Justice Rabinowitz, joined by
Justice Matthews, dissented, arguing that the applicable
regulations prohibited separate permitting, and that a single
permit was necessary to ensure that the cumulative effects of the
mining operation would be adequately considered. Id. at 1250-51.
Justice Rabinowitz contended that "[c]ourts have
disallowed segmentation of a proposed project . . . to assure that
the cumulative effects of the project are adequately considered
. . . ." Id. at 1251. Justice Rabinowitz cited Thomas v.
Peterson, 753 F.2d 754, 760 (9th Cir. 1985), for the proposition
that "allowing consideration of cumulative impacts after a portion
of [a] project is already approved"swings the balance in favor of
project approval even if the project would have been disapproved
had all components of the project been considered in the initial
permit application. Gorsuch, 835 P.2d at 1251.
In Trustees for Alaska v. State, Department of Natural
Resources, 851 P.2d 1340, 1341 (Alaska 1993) (Camden Bay II), DNR's
approval of a sale of oil and gas leases was challenged. A regula-
tion required DNR to identify known geophysical hazard areas, and
prohibited approval of development in such areas until measures to
minimize geophysical hazards were provided. Id. at 1343. DNR
identified the entire sale area as a geophysical hazard area. Id.
DNR intended to consider particular geophysical hazards on a lease-
site-by-lease-site basis, requiring lessees to submit plans to
mitigate potential geophysical hazards before approval to develop
a specific lease site would be given. Id. at 1343-44 & n.7.
We disapproved DNR's approach. We held that DNR was
required to identify known or substantially possible hazard areas
before approving the lease sale as a whole. Id. at 1344-45. We
explained that "deferring a careful and detailed look at
particularized geophysical hazards to later stages of the
development process . . . entails certain practical risks." Id. at
1344. Such deferral "may tend to mask appreciation of any
cumulative environmental threat that would otherwise be apparent if
DNR began with a detailed and comprehensive identification of [the]
hazards." Id. We again noted that "the more segmented an
assessment of environmental hazards [is], the greater the risk that
prior permits will compel DNR to approve later, environmentally
unsound permits." Id.
Another regulation at issue in Camden Bay II required DNR
to identify important historic sites. Id. at 1345. DNR
purportedly attempted to comply with this regulation by requiring
the lessees to report on such sites and to try to preserve such
sites, arguing that the regulation did not state when historic
sites had to be identified. Id. at 1345 & n.9. We held that DNR
had not complied with the regulation, and that DNR was required to
identify known historic sites before approving the initial sale.
Id. at 1346. We explained that evaluation of historic sites on a
lease-site-by-lease-site basis ran "the risk of undervaluing the
cumulative cultural significance of the region as a whole,"and
that the lessees would have an incentive to underreport historic
sites. Id. We added that our holding that the regulation at issue
required identification of historic sites before approval of the
initial sale did "not mean that more intensive duties are not
required by this regulation at later stages of development." Id.
We also ruled in Camden Bay II, however, that DNR did not
have to examine transportation routes and utility sites before
approving the initial sale because "[u]ntil exploration is proposed
and, in all likelihood, until and unless a commercially exploitable
discovery is made, there will be no occasion for siting, designing
or constructing transportation and utility routes." Id. We
further decided that DNR was not required "to evaluate the
effectiveness of [environmental harm mitigation] measures before
even receiving detailed development proposals,"since DNR would not
be able to assess "detailed mitigation measures even before knowing
which activities it needs to mitigate." Id. at 1347.
In Kuitsarak Corp. v. Swope, 870 P.2d 387 (Alaska 1994),
DNR approved offshore prospecting permits in a region without
conducting an in-depth analysis of the effects of mining in the
region. Id. at 391 n.13, 394 & n.21. DNR contended that it lacked
sufficient information to conduct such an analysis and that it
would be easier to do the analysis when specific mining activities
were performed. Id. at 391 n.13, 394 n.21. We rejected this
procedure. We found that DNR had not adequately considered the
potential and cumulative impacts of mining in the region. Id. at
395-96.
We noted that DNR's argument that it was difficult to
obtain the information necessary to perform a proper evaluation of
the impacts of mining in the region was undermined by evidence of
federal studies similar to the studies which DNR needed to do. Id.
at 396. We stated that "[o]nce the initial impact of mining on the
region has been assessed, any unforeseen occurrences or conditions
that are revealed during exploration can be dealt with by DNR
through use of stipulations and conditions imposed on mining." Id.
(emphasis added). We disapproved of DNR's use of conditions to
require the development of plans to minimize potential dangers as
a substitute for a complete analysis of the potential dangers. See
id. at 396 n.27.
We can draw three general, guiding principles concerning
when and in what manner "phasing"or "segmentation"is permissible
from Gorsuch, Camden Bay II, and Kuitsarak. First, unless a
specific statute or regulation allows phasing, phasing is
disfavored. Compare Gorsuch, 835 P.2d at 1245-46 (regulation
interpreted as permitting phasing) with Gorsuch, 835 P.2d at 1250-
51 (Rabinowitz, J., dissenting) (regulation interpreted as
prohibiting phasing). Where a statute is silent or ambiguous,
phasing should generally not be allowed. See Camden Bay II, 851
P.2d at 1345-46 (regulation silent on when historic sites must be
identified, but best interpreted as requiring identification of
known sites at initial permitting stage).
Second, phasing is prohibited if it can result in
disregard of the cumulative potential environmental impacts of a
project. See Kuitsarak, 870 P.2d at 396 n.30; Camden Bay II, 851
P.2d at 1344, 1346; Gorsuch, 835 P.2d at 1246. The more
interlinked the components of a project are and the greater the
danger that phasing will lead to insufficient consideration of
cumulative impacts, the greater the need to bar phasing. Compare
Gorsuch, 835 P.2d at 1245-46 (separate permitting permissible so
long as DNR determines that cumulative impacts will not be
problematic) with Gorsuch, 835 P.2d at 1250-51 (Rabinowitz, J.,
dissenting) (unified permitting process necessary to ensure
adequate consideration of cumulative effects).
Third, conditions and stipulations may be used to address
unforeseen occurrences or unforeseen situations that may arise
during exploration or development, but permit conditions may not
serve as a substitute for an initial pre-permitting analysis that
can be conducted with reasonably obtainable information. See
Kuitsarak, 870 P.2d at 395-96 & n.27 (approving possible use of
conditions to deal with unforeseen events but disapproving use of
conditions as substitute for feasible, complete analysis).
Thus, phasing through the use of conditions is prohibited
where it is feasible to obtain the information necessary to
determine whether environmental standards will be satisfied before
granting an initial permit, but allowed where it is impractical or
impossible to create detailed development plans without conducting
additional physical exploration. See Camden Bay II, 851 P.2d at
1343-47 (geophysical hazards and historic sites can be investigated
during initial permitting stage but transportation routes and
mitigation measures cannot be analyzed without further exploration
and planning).
Based on these principles the Commission should not have
granted the AJ Mine permit while excepting major portions of the
project. The tailings dam and impoundment and the marine
wastewater discharge system are integral components of the mining
project; they are significantly interlinked to other parts of the
project. If extensive redesigns to these components become
necessary, the mining project could have a significantly greater
environmental impact. Phasing the approval of those components
could therefore cause the cumulative impacts of the mining project
to be inadequately considered.
After the Commission granted Echo Bay the large mine
permit for the project as a whole, the United States Environmental
Protection Agency (EPA) disapproved the proposal for the dam at
Sheep Creek, and Echo Bay abandoned the plan to build the dam
there. The EPA's action will undoubtedly force major redesigns in
the mine project. This sequence of events illustrates the dangers
of CBJ's improper use of phasing -- the initial approval for most
components of the AJ Mine may cause CBJ to fail to take into
account the cumulative impacts of the redesigns made necessary by
the change in the location of the tailings dam.
For these reasons we conclude that the Commission erred
in granting permit approval of the project while deferring
consideration of important portions of the project.
B. Did the Commission Err by Granting the Permit, Yet
Imposing as a Condition that Echo Bay Provide Further
Information?
As noted, the Commission found that it could "not
conclusively determine at this time with current information that
the proposed treatment system will maintain water quality in
accordance with federal, state and local laws, rules and
regulations." In addition, the Commission found that "[t]he
available data shows that the federal limit for total suspended
solids (TSS) will not be met by the marine water discharge." In
addition to withholding approval of a portion of the project, the
second way the Commission responded to this problem was to place
conditions into the permit requiring the project "to comply with
federal and state water quality standards." The Commission should
not have granted the AJ mine permit without knowing whether the
plan that was submitted to it would satisfy water quality
standards.
The ordinance requires that an application contain enough
information for the Department and the Commission to make determi-
nations as to impacts and compliance. First, CC&BJ 49.65.130(f)
requires the Department to conduct an application review, form a
recommendation and provide the recommendation to the Commission.
CC&BJ 49.65.130(b) provides that the application must contain
"sufficient information so that the Department can, after reviewing
the application, evaluate, in accordance with the standards of
subsection 49.65.135(a), the impacts described in this subsection
that the mining operation may have on the city and borough." That
subsection includes "a description of other potential environmen-
tal, health, safety and general welfare impacts." Subsection
49.65.135(a)(2) provides that "[a]ir and water quality be
maintained in accordance with federal, state, and city and borough
laws, rules and regulations." Second, after the Department
provides the recommendation, the Commission must determine whether
the "application, with stipulations or conditions as appropriate
satisfies the standards of Sections 49.65.135 and 49.15.330."
CC&BJ 49.65.130(f). CC&BJ 49.65.330(e)(1)(B) in turn provides that
the Commission shall determine whether the application is complete.
CC&BJ 49.15.130(b) provides that "[a]n application is complete when
it contains all of the information necessary to determine if the
development will comply with all of the requirements of the permit
applied for." Thus the ordinance requires that (1) the application
contain sufficient information for the Department to determine the
environmental impacts of the mining operation; and (2) the
Commission determine whether the application contains the informa-
tion necessary to determine whether it will comply with water
quality rules and regulations. The Commission's statement that it
did not have enough information to determine whether the system
would adhere to water quality standards makes it clear that the
application failed to meet either of these requirements. Without
this information, the Department lacked sufficient information to
determine the environmental impacts of the project. In addition,
without this information the Commission could not have determined
that the application was complete.
This interpretation of the code is further supported by
Kuitsarak, 870 P.2d at 394-96. In Kuitsarak, DNR did not gather
necessary information regarding environmental impacts before
granting an offshore prospecting permit. Id. Similarly, in this
case, further information on water quality was necessary before the
Commission could grant the mining permit, or even consider the
application complete. (EN5)
CONCLUSION
The Juneau Planning Commission engaged in impermissible
phasing in its approval of the AJ Mine permit. The Commission
deferred approval of components of the mine which are interlinked
with other components, creating an unacceptable danger that
cumulative impacts would not be sufficiently analyzed. The
Commission utilized conditions as a substitute for evaluations that
could have been conducted with feasibly obtainable information.
The Commission reacted by placing conditions on the
permits and deferring approval of mine components when it was faced
with data that the proposed mine projects would not comply with
Juneau code requirements or when it did not have sufficient
information to determine whether the requirements would be met. If
allowed to use such phasing in response to defects in mining
applications, the Commission could grant approval to any permit
application no matter how deficient it is, making the Juneau code
virtually meaningless and Commission decisions effectively
unreviewable.
For these reasons, we REVERSE the decision of the
superior court and REMAND this case to the court with directions to
vacate the decisions of the Juneau Assembly and of the Commission
granting the mine permits, and to REMAND to the Commission for
further proceedings in accordance with this opinion. (EN6)
ENDNOTES:
1. CC&BJ 49.80.120 defines "impact"as used in CC&BJ 49.65 as
"the reasonably foreseeable effects or consequences of a mining
operation."
2. These required determinations track the "standards for
issuance of permits and conduct of operations"put forth in CC&BJ
49.65.135.
3. CC&BJ 49.15.330(g) allows the Commission to place seventeen
kinds of enumerated conditions, as well as "other conditions as may
be reasonably necessary,"on a conditional use permit.
4. CC&BJ 49.15.330 contains the general standards for obtaining
a conditional use permit in Juneau.
5. AFJ and TNA argue that "an applicant simply cannot demonstrate
compliance with all applicable requirements unless it first has
obtained the necessary permits from other agencies." The code does
not necessarily require this level of demonstration of compliance,
but at the very least, the application must contain the
"information necessary to determine"whether the project will
comply. CC&BJ 49.15.130(b)
6. The issues regarding the existence or lack of substantial
evidence to support various CBJ findings are mooted by our
decision.
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