A group of Anchor Point residents suing the Kenai Peninsula Borough over its approval of a gravel pit near their North Fork homes have filed a motion with Alaska Superior Court in Kenai seeking to stay mining operations while the court considers the merits of the suit.
Appellant Helen Schwert said mine owners have recently indicated they would begin digging unless a stay was in place.
She also said the group of neighbors has sent a letter asking the Alaska Department of Natural Resources to look into the risk to their drinking water and to protect their water rights.
The group filed suit in April naming the borough as defendant and challenging a series of decisions and rulings of the borough planning commission and board of adjustment.
Residents first began opposing the proposed pit two years ago following an April 28, 2003, decision by the planning commission granting a conditional land use permit allowing land owners Cecil and Ina Jones to extract gravel. The aquifer beneath the proposed pit supplies water to adjoining properties and empties into the North Fork of the Anchor River, opponents said.
In September 2003, a board of adjustment remanded the issue back to the planning commission, saying conditions outlined in the permit were more likely than not to result in damage to the aquifer. The commission later adopted what complainants say was a narrow interpretation of the borough land-use ordinance and again granted the permit.
In February of this year, a BOA heard testimony regarding the issue again, including from the permit applicants, who argued that opponents had failed to present substantial and credible evidence that errors had been made in the application or that the aquifer would be negatively impacted. The BOA affirmed the planning commission decision.
In doing so, the board ignored evidence of negative impacts and chose to interpret the law "to constrain their ability to require more information about aquifer damage, or even to place more stringent conditions in the permit, said plaintiffs' attorney Peter Van Tuyn. In a press release Friday, Van Tuyn said he believed plaintiffs have a strong case for a stay order.
"Not only is the borough on shaky ground with its legal interpretation of the borough code, but the likely harm to the neighbors' drinking water far outweighs any potential harm to the gravel miners."
"It is disappointing that we have to take this action against our very own government to protect our drinking water," said neighbor Steve Ebbert. "You would think they would stand by us against threats to something that fundamental."
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