State drops all charges in gravel pit lawsuit

Case leads to symposium on material site issues

Posted: Sunday, July 09, 2006

Charges leveled last year against an Anchor Point gravel pit operator have been dropped.

Clif Shafer and the company he has run since 1984, Dibble Creek Rock Limited, were accused of two counts of diverting water without a permit, two counts of violating a commissioner’s order and two counts of disobeying a commissioner’s order, all misdemeanors, in May 2005.

Shafer faced a year in jail and fines up to $10,000 on each count, and Dibble Creek could have been fined up to $200,000 on each count. His trial was to begin June 19, but on June 16, the Alaska Office of Special Prosecutions and Appeals announced all charges were dismissed.

Assistant Attorney General Kelly Gillilan-Gibson, who is no longer with the office, had alleged that Shafer and Dibble Creek had diverted about 160,000 gallons of water from the gravel pit without a state permit. That diversion allegedly affected the water-production ability of a neighbor’s well. The state also said Shafer and the company had failed to comply with an Alaska Department of Natural Resources order that he cease diverting water, and later that he disobeyed an order to cement a culvert and remove drain rock.

Shafer told the Homer News then that he felt he was not guilty and welcomed a chance to clear his name in court.

He never got that chance.

Assistant Attorney General Daniel Cheyette, who inherited the case from Gillilan-Gibson in March, said he had worked with Shafer and Shafer’s attorney, Charles Tulin, to reach an out-of-court resolution. That resolution came about in part because a culvert was recently cemented shut and Shafer had agreed to post money to sponsor a symposium on gravel pit standards that would be held sometime this fall or winter and include Kenai Peninsula Borough planners, gravel pit operators, DNR officials and the public.

Tulin, however, said the dismissal involved no conditions and the symposium would be sponsored by an engineer familiar with the case, Michael Anderson with USKH Engineering, not Shafer.

Anderson said Monday that he was providing the $10,000 independent of USKH Engineering. He said he knew Shafer and was familiar with the case, and that he was doing it as a public service because a full public discussion of gravel pit issues needs to happen.

“We need to educate both sides (of the gravel pit debate). The same kind of thing is happening in Wasilla and Palmer. I have a lot of friends who own gravel pits — I’m a contractor on the side. I want a benchmark. We need one so we can establish exactly what can go on.”

Cheyette confirmed that the dismissal was issued with no conditions, but that prior to the court order, he had told Shafer and Tulin that the charges would be dismissed when the culvert was cemented and when a check for $10,000 made out to the Kenai Peninsula Borough for the symposium expenses was delivered. He said he had seen a cashier’s check for the amount, but had no way of knowing from whose bank account the money was drawn. Nothing on the official record required that Shafer actually pay the money himself, and in any case, it didn’t really matter, Cheyette said.

“If it were me, I’d be getting on a soapbox and telling everyone what a good corporate citizen I were by sponsoring the symposium,” Cheyette commented. “I’d be making T-shirts.”

The charges stemmed from a situation that developed in 2003 when a Dibble Creek pit neighbor, Melvin Harbort, who no longer lives in Anchor Point, claimed that his 25-foot well was affected by Shafer’s diversion work. Harbort secured state water rights to 500 gallons per day in 2002.

A Homer geophysical company backed up that claim, and so did a DNR hydrologist. A state-hired contractor evaluated Shafer’s pit operation and its impact on the neighboring well, concluding that the diversion had affected Harbort’s well.

Shafer was directed to restore the well, and Shafer said last year that he’d paid $800 to inspect and fix it. Shafer said then he believed the problem was Harbort’s 11-gallon-per-minute pump that drew down the well, the pump being too powerful for the well. Shafer attempted to buy Harbort’s property, but the parties could not agree on a price.

According to the state, Shafer did stop pumping water, but still used culverts and ditches to divert water.

Shafer said Tuesday that his reputation had suffered during the ordeal and that he had looked forward to “clearing my name” in the public forum of a district court trial. He said that, in that respect, he was frustrated by the dismissal.

Cheyette said, however, that he believed the “outright dismissal” of all charges had indeed cleared Shafer’s name.

“They (Shafer and Dibble Creek) are acting as good corporate citizens and responsible gravel pit operators,” he said. “The state, pit operators and their neighbors would benefit from the symposium, making it “a win-win all around,” he added. “Hopefully confrontations that gave rise to this litigation won’t happen at all or at least won’t with as much frequency in the future,” Cheyette said.

It will be up to the borough to decide what topics will be covered in the symposium.

For more than a year, the Kenai Peninsula Borough Assembly has been wrestling with proposals to rewrite borough material site permit regulations. The assembly is to take up that matter again in August.

Homer News reporter Michael Armstrong contributed to this story.

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