Chilkat Valley News - Serving Haines and Klukwan, Alaska since 1966

Risk that the Haines Borough would have to compensate landowners for prohibitions on resource extractions is low, a borough attorney recently said. But although findings of takings are unlikely, they are still a possibility.

The borough asked attorney Patrick Munson to analyze the question of whether a complete prohibition of resource extraction activities would require compensation of public or private property owners in the Mud Bay rural residential zone.

“Because we believe most property owners will not be able to prove significant harm to

investment backed expectations, we believe the risk to the Borough of banning timber removal is

fairly low. However, if a taking was found, the amount of just compensation ordered could be significant,” Munson said.

A prohibition of resource extraction would not constitute a “whole taking” of property, Munson said, but there is a possibility a prohibition could be deemed “confiscatory” only if it interferes with an owner’s economic use of the property.

In an interview this week, planning commission chair Rob Goldberg declined comment on the opinion but said a recent Supreme Court decision regarding takings sided with the municipality. As long as a municipality leaves some value in the property, it is difficult for a property owner to prove grounds for a taking.

The issue came up when the borough was approached early last month about an application for selective logging in the Mud Bay Zoning District.

Manager Debra Schnabel said in a memo to borough planner Holly Smith and the planning commission that she recommended the commission focus its attention on defining resource extraction for all borough zones.

She said recent conditional use permit discrepancies and current interests in allowing resource extraction “illustrate the need for clarity in distinguishing those elements that define resource extraction as a commercial, industrial or personal use activity, or an environmentally protective or precautionary activity,” Schnabel wrote.

She said resource extraction can be defined by percent of property, cubic yards of material, board footage or number of trees.

Munson said establishing resource extraction as a conditional use in the rural residential zone would pose even less risk of being deemed a taking, but would not change the potential amount of compensation in the event a taking was found.

The issue will go back to the planning commission at its next meeting.