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Status Report

October 6, 2022

• CALLA v. State of Alaska is in the discovery phase.
• The Classification Denial appeals that were filed by CALLA and by the Mat-Su-Borough in September 2021 (with respect to CALLA's April 2021 proposal to classify the 152 acre site as dispersed recreation and habitat) have not yet been responded to by the DNR Commissioner.

For more information on the case, the case number is: 3AN-22-06031CI and can be searched for on CourtView

• The Final Finding (FF) on the DNR Preliminary Decision (PD) has not yet been issued. This is in regards to the "re-classification" of 113 acres as an extraction area, and the transfer of management to the Department of Transportation under an Interagency Land Management Agreement (ILMA).
• Borough enforcement of the Conditional Use Permit (CUP) process due to water table breach (earth extraction activity within four feet of the water table) is not occurring. The MatSu Borough (MSB) is denying the validity of multiple expert hydrologists, and evidence collected and documented by their own code compliance officer.

July, 2022

A geologist-hydrologist engaged by CALLA to evaluate the water table breach made a site visit, re-confirming their previous evaluation of a water table breach at the site.

May, 2022

CALLA filed suit against the State of Alaska (DNR). CALLA's suit alleges the State violated Article VIII, Section 10, of the Alaska State Constitution. This section of the Constitution deals with how the State disposes of public land. This is a public interest lawsuit, not subject to Alaska's "loser pays" rule. It could have broad implications.

February, 2022

CALLA worked with another expert geologist/hydrologist to evaluate the water table breach at the quarry wall. The results corroborated the first hydrologist opinion, with additional details added.

To avoid in-state bias, CALLA sought experts outside of Alaska. These results were presented to the Mat-Su Borough Planning Director and Manager, as well as the Talkeetna Community Council's Comsat Quarry Committee. The council engaged with Alex Strawn, the borough's Planning Director, on the topic. The Director responded that the Borough's Professional Engineer (PE) held the opinion that the two expert hydrologists were incorrect.

Of exceptional note, the Borough's PE is not a hydrologist by trade, and was in disagreement with the hydrologists, who are experts in their field.

A public records request by a resident established the Borough Code Compliance Officer had conducted an interview. This interview documented a first person account of blasting at the site that occurred in drill holes that had filled with water. Alex Strawn interviewed the same person and decided this had not occurred. None of Strawn's comments addressed the specifics of whether it occurred. To date the Borough has declined to act with respect to the water table breach.

Strawn wrote a letter to the Comsat Quarry Committee, asserting for the first time, that the ordinance prohibiting violation of the water table was limited specifically to "dredging". The word "dredging" is not in the ordinance language anywhere. References to different types of material extraction are in the language, and include, "rock". Earth extraction activity that gets within four feet of the water table is cause to revoke any exemptions to the Conditional Use Permit (CUP) process. It would require the Borough to exercise oversight.

January, 2022

The Board of Appeals and Adjustments heard CALLA's request for re-consideration and denied it after hearing the State presented testimony of Renee Goentzel of the Department of Transportation (DOT). They testified that the DOT and Department of Natural Resources had a "tacit ILMA" from the 1970s until 2016 and therefore DOT had used it throughout that time without needing any permits or documentation. This is clearly contradicted by facts in the record and state statutes and regulations. The denial for a reconsideration upheld the site's exemption from Mat-Su-Borough (MSB) Conditional Use Permitting (CUP). CALLA anticipates re-visiting this testimony in the future.

December, 2021

CALLA received our IRS 501(c)(3) charitable status.

November 6, 2021

CALLA filed a motion for reconsideration with the Board of Appeals and Adjustments at the Mat-Su Borough (MSB). While parties had 30 days to appeal the BOAA's decision (see previous post) to the State Superior Court, there was also an option to request reconsideration if the BOAA had made a mistake in rendering their decision, provided it was requested within 10 days. We did that.

We believe the BOAA erred by misreading the MSB Conditional Use Permit (CUP) ordinance's intention to permit activity, and instead read the ordinance as permitting a "site". The title of the ordinance is: Chapter 17.30: CONDITIONAL USE PERMIT (CUP) FOR EARTH MATERIALS EXTRACTION ACTIVITIES. Note the title itself tells what the ordinance controls and it is earth materials extraction activities.

The BOAA wrote in their determination, "The BOAA concludes that the site was in existence as of the date of adoption of Ordinance Serial No. 11-153.", whereas the exemption language the state was relying on in their appeal, said, "This Chapter shall not apply to earth material extraction activities on land owned by the state of Alaska that are in existence as of the date of adoption of the ordinance codified in this chapter except for such operations that extract materials within four feet of the water table."...  

And yes, there still remains the issue of breaching the water table. With respect to our motion for reconsideration, the BOAA can take it up or reject it by decision at their next meeting.

October 26, 2021

On October 26, the State won their appeal against the Mat-Su Borough. The Borough had told the Department of Natural Resources (DNR) they could not extract from the Comsat site without a Conditional Use Permit. DNR appealed and the Borough's Board of Appeals and Adjustment ruled against the MSB.

Why? The BOAA said the language of the ordinance they were reviewing was unclear, and applied some of the evidence they heard and saw in DNR's favor.