Nunamta Aulukestai v. State, Department of Natural Resources
351 P.3d 1041
Alaska2015Background
- Pebble Limited Partnership (PLP) conducted extensive hard-rock exploration on State land in the Bristol Bay watershed under Miscellaneous Land Use Permits (MLUPs) and Temporary Water Use Permits (TWUPs); exploration involved hundreds of drill holes, seismic lines, and on-site sump pits storing drilling waste.
- MLUPs and TWUPs were issued for fixed terms (up to five years) but on their face were revocable and MLUPs forbade permanent improvements; PLP had invested hundreds of millions in exploration and had an MOU with the State involving reimbursements and interagency review.
- Nunamta Aulukestai and local residents sued seeking declaratory relief, alleging the permits were de facto disposals of state land interests requiring prior public notice under Alaska Const. art. VIII, § 10 and that the State failed to consider constitutionally-required public-interest/concurrent-use factors.
- The superior court found (after trial focused largely on environmental/water impacts) that permits were revocable, not disposals, and therefore no prior public-notice or best-interest finding was required; it also found insufficient evidence of long-term environmental harm.
- On appeal the Alaska Supreme Court treats the core questions as legal: whether MLUPs/TWUPs were functionally irrevocable (thereby constituting disposals/interests in land triggering the Public Notice Clause) and whether exhaustion/claim-splitting barred the action.
Issues
| Issue | Plaintiff's Argument (Nunamta) | Defendant's Argument (State/PLP) | Held |
|---|---|---|---|
| Whether MLUPs were disposals of an interest in land (functional irrevocability) | MLUPs are functionally irrevocable because revocation would destroy PLP's massive investment; legacy structures (concrete plugs, casings, sump wastes) and State reliance/deminimis political/economic pressure make revocation unlikely | MLUPs are revocable licenses; investment is speculative intellectual property and exploration data has independent value; structures are temporary and removable | MLUPs are functionally irrevocable and therefore disposals of an interest in land requiring prior public notice under art. VIII, § 10 |
| Whether TWUPs were disposals of an interest in land | TWUPs permit long-term large water withdrawals and so may implicate public-interest protections | TWUPs are revocable, cover discrete sources, and revocation would not threaten PLP’s overall program or leave permanent structures | TWUPs are not disposals of an interest in land (they are revocable and do not meet functional-irrevocability tests) |
| Whether claim-splitting / failure to exhaust administrative remedies bars the declaratory action | Constitutional issues are appropriately litigated in court; administrative exhaustion not required for pure constitutional questions | Plaintiffs should have exhausted administrative appeals and not split claims between forums | Court rejects dismissal: exhaustion and claim-splitting doctrines do not bar this case given the constitutional nature of the claims and DNR’s limited forum/remedies |
| Whether a constitutional "best-interest" finding was required before issuing permits | Article VIII requires prior public-interest consideration and notice when disposing interests in land | No separate constitutional best-interest finding required beyond statutory/regulatory process; superior court’s contrary view was premised on permits not being disposals | Court does not decide broadly whether written best-interest findings are always required post-REDOIL, but holds that because MLUPs are disposals, prior public notice (and related protections) were required; remands for declaratory relief |
Key Cases Cited
- Northern Alaska Envtl. Ctr. v. State, Dep’t of Natural Res., 2 P.3d 629 (Alaska 2000) (adopts functional-irrevocability tests for distinguishing licenses from disposals)
- Wilderness Soc’y v. Morton, 479 F.2d 842 (D.C. Cir. 1973) (en banc) (formulates tests for functional irrevocability: destruction of investment and removability/lasting environmental impact)
- Alyeska Ski Corp. v. Holdsworth, 426 P.2d 1006 (Alaska 1967) (Alaska Land Act and public-notice constitutional context)
- SOP, Inc. v. State, Dep’t of Natural Res., Div. of Parks & Outdoor Recreation, 310 P.3d 962 (Alaska 2013) (permits may be easements when revocable only for cause and otherwise exhibit easement characteristics)
- Laverty v. Alaska R.R. Corp., 13 P.3d 725 (Alaska 2000) (substance-over-form analysis in characterizing licenses vs. interests in land)
- Sullivan v. Resisting Environmental Destruction on Indigenous Lands (REDOIL), 311 P.3d 625 (Alaska 2013) (articulates that article VIII may require continuing public-interest assessment during resource projects)