*1 1041 > AULUKESTAI; Ricky Delkit NUNAMTA Fischer;
tie, Sr.; Willson; Violet Victor Hammond, Appellants
and Bella
Cross-Appellees,
v. Alaska, DEPARTMENT OF
STATE RESOURCES, Appellee
NATURAL Cross-Appellant, Partnership acting
Pebble Limited Partner,
thrоugh its General Pebble Corporation, Intervenor-Appellee.
Mines S-14560,
Nos. S-14579.
Supreme Court of Alaska.
May29,2015.
were not revocable. Because we therefore conclude that conveyed an interest in land and consequently should have notice, preceded by been we reverse judgment court and re- mand.
II. FACTS AND PROCEEDINGS Setting A. The Naney Wainwright, Clark, S. Vietoria Ste- deposit The Pebble ore lies north of Lake Cotton, Alaska, phen E. Trustees for Anchor- TIliamna. It copper, consists of gold, and age, Appellants for Cross-Appellees. and other minerals and covers an area of about square deposit miles. The ore Fox, sits as- General, Attorney Laura Assistant tride the watersheds of the Kvichak and Anchorage, and Geraghty, Michael C. Attor- Rivers, Nushagak which flow into Bristol General, Juneau, ney Appellee for and Bay. Bay Bristol is home to the world's Cross-Appellant. largest sockeye fishery. wild salmon Singer Matthew and Trickey, Howard S8. average annual run high of this species value Jermain, Owens, Dunnagan P.C., & Anchor- during 1990-2010 was about 37.5 million fish age, Intervenor-Appellee. for of which about caught 25.8 million were for (P.C.), Tangen, Attorney J.P. Law An- at purposes.1 commercial majority Albert, chorage, and Lawrence V. Anchor- production Bay sockeye Bristol comes age, for Amicus Curiae Alaska Miners Asso- from the Kvichak Nushagak River wa ciation. tersheds. flowing The waters Bay into Bristol host WINFREE, MAASSEN, Before: species all five of Pacific salmon as well as BOLGER, Justices, MATTHEWS and trout, char, grayling. sportfisheries EASTAUGH, Senior Justices.* king for salmon and rainbow trout in the Bay Bristol watershed are world renowned. OPINION Additionally Bay Bristol salmon form the MATTHEWS, Senior Justice. centerpiece of the subsistence activities region. I. the residents of INTRODUCTION The area of the deposit provides ore also habitat important Challenged in this case are land and water wildlife, for providing land-based winter and permits use allowing explo- intensive mineral calving habitat for the Mulchatna caribou ration on question State land. The main wе herd, "essential stream concentration" for Department address is whether the of Natu- bears, brown and moose habitat. (DNR) give ral Resources had no- tice before issuing permits. Because the Exploration B. Activities requires Alaska Constitution public notice transferred, when interests in land are deposit The Pebble was discovered ore the late 1980s. The mineral claims to the question depends answer to this on whether permits conveyed deposit location, interest in land. by discovery, were secured trial, After a filing. They court held that are now owned Pebble ("PLP"). notice was permits because the Partnership Exploration Limited nominally were deposit revocable has continued since 1988 and and therefore did not transfer an years. interest has escalated Exploration over the land. permits We conclude that the primarily land use has been exploratory conducted * IV, Sitting by assignment made under article sec- Bay aL, 1. Paur Satomone et 2010 Bristor Area tion 11 2011), of the Alaska Constitution and Alaska Report, (Apr. Annual Manacement 23(a). www.adfg.alaska.gov/FedAidpdfs/ available at Administrative Rule 1-23.pdf. FMR1 five-year periods. permits for use the trial this water when
drilling. As "Temporary Use 1,269 were Water holes had These bore place, took some case addition, Permits," The MLUPs and or "TWUPs." extensive seismic drilled. been terms, specific using explosives were issued for conducted the TWUPs had been studies predeces- they revoca provided PLP and its were lines. also along seismic million on ex- expended over $300 sors had ble at will. ploration. has been author- Although trial, immediately before the years In the incrementally, facilities associated ized some supported was exploration program place exploration have remained with the using Drilling conducted helicopters. was depot many years. supply is a There over each drill were flown to portable rigs that occupying an areа of about staging area might operate at one site. Several sites This con- by 300 to 350 meters. 30 meters rigs placed on wood The drill time. tents, sheds, plywood wall and mats sists of one and mats. Between decking or tundra material, by wood- storing interconnected *4 the settlement sump pits dug were three capable walkways. buildings All the are en drilling drilling mud and slurry of by and removed heli- being disassembled discharged from the bore that was waste copter. from drilling was obtained hole.2 Water for fueling station at a lake where There is a drilling complet was nearby sources. When and transfer fuel to planes float can land site, generally bore holes ed at each used to refuel tanks. The stored fuel rigs and drill and the plugged with concrete drill helicopters, transported but it is also sump by helicopter. The removed pads were At by helicopter for use at the sites. sites using original up holes were covered dock, are a two fueling station there necessary. re-seeded overburden large helicopter landing pads, five fuel tanks holes, in all drill plugs remained Concrete structure, tun- containment in an aluminum drill casings were left in some and metal mats, building. temporary and a shelter dra containing holes well. Some bore holes as separate At different location there is opera for future might water that be useful area, storage primarily for storage used merely capped, rather than tions were structures, which fuel containment hoses and plugged. sheds, tents, plywood wall consists of several DNR has issued a series Since 1989 and tundra mats. area, activity in permits for exploration project are The workers on the permits encompassed area
with the flown in there. Instead are not housed increasing of claims over the and the number away. village 17 miles As daily from a some permits were "Miscellaneous years.3 The the trial court stated: Permits," abbreviated as Land Use predecessor Until 2007 PLP's "MLUPs."4 no roads or wheeled vehicles as There are entirely helicopter-supported pro- any out it is an mining companies took needed water permanent airstrip, no streams, gram. There is no nearby ponds, bore holes to facilities, camp residential no four-wheel drilling operations without a support their trails, treat- sewage lagoon, no no water ap PLP first separate water use permit.5 plant, bridges ment no and no obstructions in late 2006 for plied for a water use activities; body. All of the structures water Department issued its 2007 "Explo- are called practices. 4. Permits from 1992 and 1993 There is evi- 2. This describes best Permits," predecessors at times PLP and its but we see no dence that ration and Reclamation discharged simply to flow allowed the material permits significant difference between these ponds. onto the tundra or into tundra Permits." "Miscellaneous Land Use those labeled admitted, alleged, and DNR that no 3. Nunamta applications 2007 included Some filed before that PLP's for 2000 or 2001 and issued usage water needs. information about estimated Labor, predecessors of Annual filed Affidavits they engaged mining showing ities, activ- some dispute years; DNR for those Nunamta and significance of this fact. Concerning temporary spanned are and can be the facilitiesthat have found at Pebble by helicopter. permit periods, application a number of and removed deconstructed storage camp stated that the built in 2004 (Citations omitted.) be ply- continued to used but that certain replaced wood sheds were removed and The 2009MLUP C. by a 24-foot 60-foot WeatherPort tent. That recent MLUP as of the time of The most plus remaining by one 10-foot 20-foot wood- dates of this provides "[elffective trial only buildings en structure were the at this through February shall separate location. At a location two struc- 31, 2010, unless sooner revoked December protect tures had "been erected to water permit is also at for cause. revolelable This keep freezing." them hose[s] from One upon will." It states that it is "for activities by was a building 10-foot 20-foot metal-clad managed State lands described the Har- and the other is a 15-foot 86-foot Weath- Exploration Application" submitted drock application erPort tent. The "[alll noted that PLP. temporary and will be removed when no longer needed." application, The activities described in the Finally, application noted that PLP MLUP, permitted and thus included allowing had TWUPs the use of water from drilling 100 diamond-core bore holes that streams, ponds, previous drill holes for 7,000 deep could be as feet and have 16,200 118,400 day up gallons per gal- up permitted diameter of to 6 inches. Also per "per rig." plan lons week PLP's mud-rotary were 325 bore holes drilled with *5 operation up rigs called for to 12 to be on and reverse-cireulation drills into bedrock « site. depths to 500 feet. of from 10 shooting also allowed 84 seis Proceedings D. 220,000 totaling mic blast lines a maximum of Aulukestai, an association of Nunamta lines, Along the seismic between 500 feet. eight village corporations in Native the Bris- dynamite explod pounds and 925 could be Bay region, and tol two individuals who re- 1,100 approximately ed in shots. Each shot Nondalton, Ricky side in Jack Hobson and will a hole from 2 to 12 feet in excavate Delkittie, "Nunamta"), (collectively ap- Sr. deep. diameter and 2 to 8 feet After the pealed the issuance of the MLUP for the permit expires these blast holes will still be project appeal for 2009-10. The was Pebble and revegetated.6 they present although will be smoothed brought in directed to March was challenged,
the DNR Commissioner. It among things, public lack notice also allowed activities in antici- other yet develop- issuing permit, failure to pation prior to be reached mine DNR's pro- impacts the cumulative phase. ment It allowed 320 shallow soils test address activities, posed exploration and the lack of pits "to determine soil horizons for construc- concerning purposes." pits approxi- specific could be information both tion These wide, mately long, up of water and the nature of the mate- four feet seven feet sources plugging drill holes. deep. sampling pro- rials to be used for to seven feet Onee terminated, backfilled, request cess DNR denied Nunamta's When Nunamta, stay permit, July put place, the overburden would be back in declaratory judgment re-seeding performed complaint filed a for would be neces- sary. superior complaint court.7 This forms supported, ground footprint plan no will be left oth- 6. The states: er than the blast hole. Each shot hole will be smoothed and rounded possible, hand shovel and rake. Where joined by four individuals as 7. Nunamta was covering vegetation will and re- be cut out plaintiffs declaratory judgment action: Nondalton; Delkittie, prior subsequently moved to the blast and Ricky Willson Sr. of Violet Naknek; Anchorage; rolled back over the site when reclaimed. Victor Fischer of disturbed surface will be reseeded with native of Lake Clark. For conven- Bella Hammond collectively plaintiffs vegetation. helicopter program ience we also refer to these As the will be domain, public ing exploration] uses on the and we will present appeal, the basis for the below, fiduciary public trust after we describe has failed to fulfill describe it appeal. for the com- duty manage course of the administrative state resources © good." mon appeal, November In the administrative appeal ground on the denied the 2009 DNR e the issuance of Count II claimed standing. DNR have But Nunamta did not permits exploration and water use without legal considered all the also stated that it had on "reasonable analysis as to their effect by Nunamta grounds presented and factual land, water, public fish concurrent users of have denied the indicated that it would wildlife, and subsis- cultural resources DNR issued merits as well. on the appeal VIII, violates article see- tence resources" holding an eviden- without first this decision 1, 2, Constitution. tions and 8 of the Alaska receiving calling brief- tiary hearing for III claimed that DNR violated eCount ing any on issues. VIII, and 4 of the Alaska article sections 3 DNR's decision to appealed Nunamta relating to the reservation of Constitution court, rulings on due challenging its fish, wildlife, people and waters Judge process grounds. In October subject preferences among common use had violated Spaan ruled that DNR Michael users, by issuing permits beneficial rights by rejecting process Nunamta's due analysis elevating mining to the no and thus grounds without of- appeal standing justification. highest preference without opportunity to cure the fering Nunamta the deficiency. alleged standing But the court e Count claimed that IV from this action was also ruled that harm use issued DNR "are and water rendered a decision cured because DNR had disposals interests in state land de facto had no other on the merits and Nunamta requiring public notice and other and water appealed Nunamta process valid due claims. safeguards of the violation interest" the case was ruling to this court. After of the Alaska Con- of article section 10 sup- orally argued, we asked for briefed and stitution. why briefing appeal plemental as to e alleged that DNR violated arti- Count V light should not be dismissed as moot *6 VIII, cle 18 of the Alaska Constitu- expiration the at issue and section relating of water to tion to the reservation pertinent issues were raised or because by permitting the people for common use declaratory judgment could be raised significant amounts of water for "at use of considering supplemental action. After years public "no longer" least five briefing, dismissing order we entered an analysis impacts of that notice or moot addi- appeal administrative as without water use on beneficial and сoncurrent uses." explanation. tional @ proceedings in Nu- now turn to the alleged Count a violation of article VI declaratory judgment action. namta's VIII, section 17 of the Alaska Constitution- counts, each of which complaint contained six Clause-claiming Application the Uniform permit- generally alleged that the statewide mining exploration permits upland hardrock ting process for hardrock mines is constitu- public were issued without notice and without tionally specifically alleged deficient and also public interest review whereas offshore permitting process related to only mining exploration permits can be is- exploration in the same Pebble is deficient given notice is and a best interest sued after way. particular: In addition, analysis is conducted. this count ® statutory and DNR, challenged as irrational by granting Count I claimed that system sig- regulatory water use that allows permits for and "water use with- "temporary" with- analysis nificant water use labeled findings addressing out the di- rect, public or a interest review impacts indirect and cumulative out notice [min- "Nunamta," recognizing not all of while cases. parties were in both
the individual involved "permanent" deemed whereas withdrawals independent specifically of those imposed by protections. legislature: accompanied such must [Pjrovisions VIII, of Article in order as a defendant. The State PLP intervened all, any meaning have interpret- at must be summary judg- PLP filed motions for containing independent ed as constraints court, superior ment on all six counts. above, however, on State action. As noted Judge presiding, granted Eric A. Aarseth dispute because the main in this case is relating motions as to Count VI these whether the State should have considered Clause, ruling Application Uniform that see- the content of of these constitutional similarly protect tion 17 serves situat- provisions issuing before the MLUPs and unequal application of ed wsers from laws TWUPs, the Court need nоt consider the regulations, whereas Nunamta's claim application provisions of these on a count particular not on users but uses of focused by count basis. The State either needed public lands. policy to balanee the considerations en- claims, As to Nunamta's other the court trenched in Article VIII or it did not. gen- ruled that could be considered The court concluded that were mate- there erally, but could be considered to be "as rial regarding issues of fact Nunamta's re- applied" challenges regu- to the statutes and maining comply claims that the State did not exploration permits which the lations under provisions writing, with the of article collectively The court were issued. summa- permits "Whether these themselves are dis- remaining claiming counts as "that rized posals, and whether the nature of the land performed have the State should best-in- triggers use constitutional considerations re- finding granting terest before at quires underlying an examination of the ac- finding and should have made that issue tivities." public." available to the Both the State and PLP moved for recon- The court stated: summary sideration of the court's order on notes, As the State the constitution does judgment. They argued only questions finding, not mention a best-interest presented requiring of law were and that specifically required by one is not the lan- creating trial would have the effect of guage pro- natural of the various resource ambiguous process unworkable issu- Instead, finding visions. a best-interest ing exploration permits. court an artifact of the State's consideration of denied these motions and later defined the policies constitutional of maximum benefi- for trial in an issues Order On Rule of Law use, uses, yield, cial sustained concurrent > as follows: turn, considerations, All ete. of these trial, At the court will consider: expressions underlying the same *7 1) permits the issued mineral Whether policy encourage constitutional "to the set- Project exploration at the Pebble are func [public] developments land tlement of and tionally irrevocable and amount to a "dis by making resources them [the State's] VIII, posal" under Art. 10. Section available for maximum use consistent with the interest." Because these inter- 2) Whether, if a the amount twined constitutional considerations are "disposal," provided the State constitution- encompassed by single finding, a the ulti- ally adequate prior public notice of the - question here is whether the mate State VIII, disposal under Art. Section and finding have made such a should before 3) exploration permits and Whether issuing permits Project, to the Pebble or mining exploration activity associate[d] (as only alleges) whether the State it was unconstitutionally impinged on reasonable statutory to adhere to its own and concurrent uses under Art. Section 8. regulatory limitations and authorizations. I, I, theme in Counts III The common court, provisionally, rejected Complaint per that at least and V Plaintiffs' is argument provisions subject to restrictions based on the State's mits are impose any protections article VIII did not reasonable concurrent uses.2 them, that often from but testified testimony and evi- nation receive The court will allowing complete, chemical plugging revocable nature is not it relates to the dence as In addi- impact biological reactions to continue. permits and actual and permit tion, or issuance cement exploration activities Moran testified that Dr. degraded over decades grout plugs concurrent uses the reasonable has had on of the land and water you get groundwater or common uses contamination "then pertinent sections of Art. by the long-term." defined pled by the Plaintiffs. and as VIII other According experts, to Nunamta's best interest conduct its own court will not potential contamination is major source of ("BIF") finding or determine whether commonly drilling The most used mud. equivalent" a "functional State conducted chemicals, A wit- "EZ mud" contains toxic to bifur- court will not need of a BIF. The Department employed by the State ness not entertain the trial. The court will cate testified that Environmental Conservation argument prospective about evidence were toxic to fish in the components EZ mud development or actual harm due to the in the water bore concentrations found geographical mining within the concerned thought the time wastewa- holes areas. feet to from a bore hole could travel 100 a ter hybrid supreme adopted court ap- 1. The body, greatly it would be diluted water determining permit proach whether a is func- it was qualitatively thus "we determined that tionally Alaska Environ irrevocable. Northern drilling reach unlikely for the additive to DNR, (Alaska mental Center v. 2000). A is irrevocable body toxic to water at a level that would be likely to be revoked because of is not fish." long-term magnitude harm if there is impact. 638-39. This ful environmental Id. at testimony presented Nunamta con- with the constitutional com test reads consistent cerning water contamination addressed not "(transactions may mentary Section 10: on potential for contamination. Dr. vary importance those of from routine to value." substantial Moran testified that his review of the data similarly uses" is "Reasonable concurrent monitoring "lev- from several wells indicated Art. VIII as described in the various sections of that if fresh- els of metals and other anions interest;" 1-"public Section follows: Section them, exposed fish were those would people;" water 2-'"benefit of the use;" Section 3-'"common among 4-"preferences Section beneficial that the be toxic." Dr. Zamzow also testified uses;" 13-'"common use" and con- and Section monitoring by Pebble in wells data collected current uses. drilling having impact indicated that primary ten-day A was held. The trial chemistry, although she was unable to water water contamination foeus of the trial was degree impact. state presented evidence that issues. Nunamta respect impacts, to oc- to other Nunamta contamination had and would continue With testimony ponds tundra drainage. expert presented some through acid One cur rock witness, Moran, drilling sources for had been described this as "the used as water Dr. past, and that in the tendency temporarily that has sul- dewatered of mineralized rock water, drilling discharged had been into ... muds fides to react air bacteria, testimony ponds. presented Nunamta also to create natural acids especially the rock and release con- solubilize frequent helicopter traffic had that then moose, caribou, bear process caused brown taminants." This occurs both Further, guide, area. Steve Mor- sumps, where it is avoid the bore holes and *8 ris, previously had main- greater testified that he magnified because of the surface caribou, spike camps drilling tained for hunters pulverized area of the waste. Accord- moose, bear, ekploration that experts, Dr. and ing to another of Nunamta's unusable, rock, Zamzow, say- finely activity had rendered the area ground mineralized helicopter activity in itself is wetting drying ing, condi- "The exposed when tions, you bring paying client may up years enough become that can't take to 15 there, spike camp, any in one plugging put out them a agreed acidic. Dr. Moran that bore They that I used to use. groundwater of those dozen units holes would minimize contami- day points reaching than on unreliable outlier data in helicopters in one will see more monitoring her conclusion that some of the game." they big will ongoing drainage wells indicated acid rock testimony presented expert on PLP also reactions. contamination. PLP's ex- the issue of water The court also "that most found of the core Stelljes, that he reviewed pert, Dr. testified holes drilled at the Pebble site since 2006 monitoring wells and was un- data from 37 plugged" have been and that "[blecause fingerprint indica- any able to find chemical generally plugged, holes have been the likeli- drainage. opinion It his tive of acid rock was generation substantially hood of acid rock had not exploration that activities stopped altogether." reduced or With re- quality in the area. Dr. Stell- harmed water spect drainage to acid rock from the drill discharged jes drilling that mud also testified cuttings sumps, the court found the sumps impermeable barri- into the creates evidence "insufficient conclude that er is "entombed" between the shallow sump pits generating are in fact rock [acid "very impermeable" bedrock below and a drainage] contamination" and that even above, compacted soil thus tundra mat and they were "there is no evidence that such groundwa- preventing migrating it from into actually migrating contamination is to an the data In addition he testified that ter. may area in concentrations that cause harm indicating contami- Dr. Zamzow relied on as living organism." ato by drilling simply "outli- nation caused ers," is, sampling errors. PLP also PLP that With reference to evidence that temporarily dry no had presented pumped evidence that there has been several tundra ponds, wildlife did impact on local caribou or other as court concluded that this not activities, necessarily exploration and that mean that harm to fish and result of its ponds tundra from which water was taken aquatic life had occurred because there "(1) proof PLP would have to be extract- fully recharge year. in than a less (2) pond, ed all the water in a that fish were Following the trial the court issued de- (8) actually pond, in present that the findings. The court found that tailed written lack of in fact harmed the fish." The water presented the evidence was "insufficient for court concluded that there was not credible likely find it true than not this Court to more things evidence that all three of thеse had exploration activities at the Pebble occurred. The court further noted that even actually in study area have caused or will fact if all the water were removed from a tundra long-term, im- cause harmful environmental blackfish, pond containing that would not drainage other con- pacts from acid rock necessarily im- mean that the fish would be is- tamination." As to water contamination for a pacted because can breathe air sues, adopted the court the views advocated period of time. by PLP. The court found that Dr. Moran was wildlife, impacts As to on the court found testimony trustworthy that his witness but in the decline in the number of caribou as toxic concentrations of dissolvedmetals mi- the Pebble area was due to the natural monitoring did establish that the wells gratory cyclical varia- nature of caribou by exploration were caused elevated levels population, and not to tions their activities; this the court further discounted exploration court also PLP's activities. The testimony conclusory, speculative, to be insufficient evidence that found there lacking a in scientific data. The court basis had caused a PLP's activities ... also observed that Dr. Moran "admitted permanent impact any other wildlife groundwater" that fish do not live the area. similarly "Dr. admitted that Zamzow guide, Concerning testimony swimming underground moni- fish are not concluded, Morris, "Thus," guided hunting activi- Steve that his toring wells." the court activity, displaced by helicopter groundwater metals in ties had been "elevated levels of reason, find- accept court refused to monitoring probative wells is not evidence ing likely longer that he no used this it more aquatic organisms." The court impacts to *9 change hunting relying because of a in state that Dr. Zamzow was area also concluded . tionally and did not constitute prohibited non-resident revocable regulations Further, disposal"; taking caribou. hunters from personal reasons were court found Morris's (2) "The extensive land and water uses give way to other interests: and must trigger safe- magnitude were of sufficient "[Rlather, preference to personal it was a VIII, 1, 2, 83,4, 8, guards of Article sections taking signs civilization when clients avoid 17"; trips.... Mr. Morris hunting on wilderness (83) pub- "The State failed to undertake with other
must share the State resources analysis required by lic-interest Article VIII users...." reasonable concurrent TWUPs"; prior issuing the MLUPs and general that Nu- court concluded in likely more did not show that it was namta (4) long- exploration had caused superior improperly exelud- than not that "The court impacts in term and harmful environmental impacts ed evidence of economic and cumula- area, project or that such harms the Pebble findings impacts, and failed to make tive con- "necessarily will occur." The court also Closing and Leasehold Mineral Order 398 exploration and water use cluded that PLP's # Location Order 1." disposals of interests permits were not points in its cross- The State raises two unconstitutionally not State lands did appeal claiming: impinge on reasonable concurrent uses. (1) superior court should not have "The paragraph court's final stated: litigate separate allowed Nunamta to two Court finds that Plaintiffs failed to This challenging permits"; cases Pebble's prove explained has been their case as per- this decision. The MLUP TWUP (2) specific "The Court should not review mits at issue in this lawsuit do not amount permitting weigh gen- in on the decisions or disposal of an interest in state lands to a quality permitting eral of DNR's and en- VIII, 10 of the Alas- under Article Section forcement." Therefore, ka Constitution. any question trigger not constitutional did IV. DISCUSSION requirement prior public notice or that finding interest the State conduct best A. Issues Addressed The evi- they permits. before issued the issu- process. This is a case about Before demonstrate dence at trial also failed to ing duty permits, did the State have a under mining permits or the associated that the give did it have the constitution to notice and activity impinged on rea- duty consequences potential to consider user under Arti- sonable concurrent use or permitted activity? The relevant time the evidence cle Section 8. Based on period by questions prospec- raised these trial, provided likely than not at it is more They tive. are not answered an after-the- permits provided for non-exclusive inquiry private party in which a is tasked fact con- use of State lands and the activities proving with the burden of that substantial any significant ducted on site did not cause damage environmental has occurred. impact long-term harm to concurrent it act before it State must know how should conclusions, uses. Given these the relief Similarly, extent the an- acts. requested Plaintiffs is DENIED questions an assess- swer to these turns on judgment is entered in favor of Defendant impacts permit- ment of the environmental and Intervenor. activities, must be made ted the assessment appealed Nunamta to this court. prospectively on known and reason- based Further, if the ably possible consequences. IIL ON APPEAL ISSUES give potential notice and consider duties to organized arguments un- Nunamta has exist, consequences discharged captions der four main as follows: later apparent harmlessness what (1) exist, and, incorrectly place; if the duties do not "The court deter- takes by subsequent they are not created acts mined that MLUPs and were fune- TWUPs
1051
costs,
attorney's
causing
harm. The duties as-
of
fees and
environmental
Since these
public
depend
in-
on
prevailing party
are intended to facilitate
awards
deter
serted
mination,
making,
informed decision
controversy
volvement and
this case remains a live
purpose
determining
party
for the
which
and to minimize environmental harm and
conflicting
purposes
damage to
users. These
prevailed. Mootness on the merits notwith
by
retrospective
examina-
are not served
standing, оur determination that the MLUPs
activity.8
permitted
tion of
nature of the
functionally
may
irrevocable
serve as a
precedent
useful
to DNR when it is faced
by
superi-
issue as framed
central
question
give
with the
of whether
prior
as-applied challenge
or court was an
to the
public
issuing permits
notice before
in future
statute;
constitutionality of a
from the trial
similar cases.
perspective,
court's
some factual context was
needed.9 But this was not an environmental
important question
A second
potentially
is
presented
tort case. We consider
issues
presented.
expressed by
As
superior
law;
primarily
here to be
ones of
the tests
concluding paragraph
court
of its deci-
revocability require
functional
consider
sion,
for
require
did the Constitution
DNR to
future,
ation of the
not a detailed assessment
finding"
"conduct a best interest
before issu-
envi
of environmentalharm to date.10 While
ing
permits,
regula-
even if a statute or
resulting
past explora
ronmental harm
from
superior
tion did not? The
court answered
ques
tion activities would be relevant
to the
question
negative,
be-
present
permits
are
tion of whether
future
permits
cause it concluded that the
were not
revocable,
functionally
not
the absence of
disposals of an interest
in land. This conclu-
present
necessarily
harm
not
mean
holding
sion must be vacated based 'on our
permits
are
revocable.
disposals
that the MLUPs were
of an inter-
position
taken
the State and PLP at
parties
est
land.
have briefed the
summary judgment
level was that
impact
Resisting
that Sullivan v.
Environ-
dispositive issues in this
could be re
case
Indigenous
mental Destruction
on
Lands
questions
agree,
solved as
of law. We
(REDOIL),12
decided
this court after the
case,
shown
our resolution of this
and it is
present
appealed, may
was
case
have on this
hoped
involving pro
to be
that future cases
issue.
In REDOIL we held that while article
prac
will
cess issues
be resolved on motion
require
does not
written best
VIII
interest
tice,
avoiding
expense
lengthy
thus
of a
findings,
require
it does
some form of con
~
trial.
tinuing
assessment
factors relevant
to the
during the
interest
course of a natural
permits
All
that were chal
project, particularly
resources
when a
lenged
expired.
in this case have
As to
authorizing
contemplat
activities is
future
them,
challenging
this case is moot. A suit
present
ed.13 Given our resolution
government-issued permit
the lawfulness of a
case, we
need
resolve whether
how
technically
is
moot onee the
has ex
applied
REDOIL
be
should
issuance of
pired.11 It is not clear from the record that
permits
present
like those involved in the
conducting
PLP
intends
conduct
case.
similar
in the future.
activities
pending
proceedings
argu-
But still
in which
do not
Nunamta's other
address
seeking large
validity
the State and PLP are
awards ments for
raise issues as to the
(REDOIL},
Lands
where the
court con-
State,
8. As we observed
in Trustees
Alaska v.
'
challenge
as-applied
sidered an
to a constitution-
Resources,
745,
Natural
865 P.2d
Department
(Alaska 1993),
question
al
that we addressed in broader terms.
750 n. 7
a best
interest determina-
place
625, 627,
(Alaska 2013).
tion "must take
before the lease decision is
311 P.3d
633
made, not as an after-the-fact exercise."
Cmty.
Hartig,
11. See Alaska
Action on Toxics
Servs.,
Kyle
Dep't
9.
S. v.
Health & Soc.
(Alaska 2014).
Servs.,
P.3d
Children's
Office of
(Alaska 2013) (citation omitted).
12.
we par- appeal and its evident the administrative under judgment" standard "independent tial tiality. most adopts "the rule of law this court which court, Judge Craig Stowers The reason, precedent, light of persuasive motion, ruling the State's presiding, denied policy." agency forum forcing this caseinto an that probably "appreciably not advance the Cross-Appeal Case Is Issues-This B. case, light especially in of issues in the By The Doctrine Of Not Barred plaintiffs and the fact that both the state Exhaust Administrative Failure To essentially pure ques- arguing that these are Prohibiting The Rule Remedies Or law in some sense tions of constitutional Splitting. Claim observed, "I don't The court also another." argues appeal that this should The State inextricably necessarily that the facts are see have Nunamta should be dismissed because princi- the constitutional law intertwined with by liti- its administrative remedies exhausted court also stated that view ples." The presented in this case gating the issues issues, briefing on the "I'm not sure the full by filing a appeal rather than administrative why I rule on them as a matter couldn't ° declaratory action. separate judgment law." argues by pursuing both State also reassigned Judge was After the case declaratory action and the administrative appellee's on the motions Aarseth ruled action, the doe- Nunamta judgment violated PLP the State summary judgment, both splitting cause of action. prohibiting a trine the case on failure to again moved to dismiss dis grounds. As an alternative to issue exhaust raised the exhaustion The State missal, for a remand to DNR so moved PLP asked September 2009 the State twice. evidentiary hearin it could conduct needed grounds that included failure to dismiss on for an alterna g.15 The State also asked respect that with exhaust. The State noted dismissal, MLUP, seeking converting an order pursuing was tive the 2009 Nunamta appeal. administrative rеmedy DNR the case to an timely administrative before because, to State's Nunamta should not be allowed theory and that under the was summary judgment mo court's order on the original proceeding with an short-cireuit tions, DNR's issuance of the propriety had Acknowledging that Nunamta action. issue, claims, Nunamta's claim was argued permits was at the State raised constitutional appeal and it remedy ap- an administrative would be that the administrative Citing considered as such. Yost should be supply a factual context propriate in order to agency oped that has the technical Anchorage 285, 289 Dist., Sch. 260 P.3d J.P. v. State, 2011) (Alaska Dep't (quoting Servs., knowledge expertise Jacob v. to address this Servs., Children's highly option Health & Soc. many issues. The convoluted Office of 2008)) (internal (Alaska longer certainly of much is almost trial omitted). quotations marks presently larger proportions contem- than for which there on numerous issues plated, 15. PLP stated: legal standards or other are no established unwieldy trial where this Rather than approach guideposts A for the Court. better independent to make evalua- Court is asked agency make[] to allow the would be areas, highly myriad on a technical tions then, record, necessary, factual typical beyond realm of which are all of up back to this Court on case can come judiciary, should first allow for the Court governing law. constitutional review comprehensive agency devel- record to be Corps.,16 argued, doctrine, Division the State ruling the exhaustion was not an abuse of discretion.23 grant relief a court could not "When prior agency requested reversing without respect With second round of mo- determination, the claim should be treated grounds, tions to dismiss on exhaustion we court appeal." an administrative The trial denied, properly think that the motions were denied the motions October 2010. though necessarily for the reasons stated acknowledged that "an administrativе court dispositive the court. In our view likely fact-finding make the record would relatively questions presented remained dis- process more efficient" but concluded questions crete of constitutional law that *12 necessary process "the administrative is not exception ques- under the would fall for such unnecessarily delay a decision in and would tions. case." Further, outright dismissal for failure to appropriate exhaust would not have been Generally, party who wishes to given that at the time of the second round of agency challenge action an administrative motions Nunamta still had an active adminis- using must do so available administrative proceeding pending. trative It could have procedures filing before suit in court.17 The appropriate been to take either alternative doctrine of exhaustion of remedies is a salu suggested by appellees, course but since purpose an tary one whose basic "is to allow slept rights Nunamta had in no sense on its agency perform functions administrative to claims, parties and all were aware of its special competence-to
within make a its outright dismissal would have been unwar- record, expertise, apply factual to and to ranted. judicial its own so as to moot correct errors 18 But when a case raises controversies." We turn now to the State's claim solely gen constitutional issues exhaustion argument. splitting against "The rule claim However, erally required.19 even then not splitting provides arising that all claims out may exhaustion be ordered so that a court single brought in a of a transaction must be which will "have a factual context within suit, single and those that are not become 20 The doctrine of exhaustion review a case." extinguished by judgment in the suit in 24 rule; jurisdictional rather it is is not a strict brought." which some of the claims were judicial a rule of sound administration.21 apply conclude that this rule does require of "Whether a court will exhaustion here for a number of reasons. remedies turns on an assessment of the ben First, on stand- DNR's decision was based through affording agency efits obtained an ing grounds, although DNR indicated that it particular opportunity to review the action deny appeal on the merits as well. 22 dispute." in superior DNR erred in court ruled that alleged standing Judge relying denied the State's on the lack
When
Stowers
could be affirmed on the
based on exhaustion
that DNR's decision
first motion
dismiss
appealed to this
grounds,
seemed merits. That decision was
he did so because the issues
pure questions
court,
to be
of constitutional law.
ultimately
appeal
we
dismissed the
exception
moot. But our decision was based on the
light
In
of the constitutional
law
2010).
(Alaska
16. 234
1264
(citing State,
P.3d
121
Labor v. Univ.
21.
Id. at
Dep't of
(Alaska
1983)).
Alaska,
575,
664 P.2d
581
Lomond,
Municipality
17. Ben
Inc. v.
Anchor
(Alaska 1988).
22.
Id.
age,
119,
761 P.2d
121-22
Alaska,
1354,
Hosp.,
Hyning
P.2d
18. Van
v. Univ.
621 P.2d
See
v. Kodiak Island
837
23.
Eufemio
(Alaska 1981)
(quoting
(Alaska 1992)
(citation
omitted)
1355-56
Parisi v. David
(stating
95,
98
require
ex-
court has discretion
34,
815,
L.Ed.2d
son,
405 U.S.
92 S.Ct.
omitted).
(1972)) (internal quotation marks
haustion).
Lomond, Inc.,
Mech., Inc.,
1055 14, Rights;33 section section Ac Water allowed, For generally uses that are not 34 Waters; Navigable cess to and section regulatory authority DNR has per issue Application.35 Uniform mits specified up for a term years to five unless sooner Such revoked.41 MLUPs and are authorized under Title Statutory regulatory 11, chapter 96 of the Alaska Administrative authority for MLUPs purpose Code.42The stated chapter 96 "is Many public uses of the domain are al manage uses and activities on state permit.36 lowed without a Such uses include domain land ... in order to minimize adverse 43 on the land and its resources." The only ordinary hiking, activities such as effects horse, bicycling, dogsled, regulation specifically and travel or authorizing MLUPs is machine,37 snow but also intrusive more ones 96.040, provides AAC which in relevant "brushing cutting part: such as or a trail less than using only five feet wide hand-held tools" (a) permit Issuance of chapter under this prospecting "hard-rock mineral or min disposal land, is not a of an interest ing using light portable equipment, field in grant preference does not right to a shovel, cluding hand-operated pick, pan, disposal. lease or other permit is auger, backpack power earth or a drill or revocable for cause for per- violation of a auger." But a for "an provision mit or chapter, of this and is activity involving explosives ... the use of department revocable at will if the deter- explosive "drilling depth devices" or to a mines that the revocation is in the state's feet, including exploratory excess of 300 interest. The remains in effect for issued, drilling stratigraphic test wells." the term unless revoked sooner. otherwise,
injury arising law, noncompliance prescribed by from with terms concurrent use, governing general concurrent and for forfeiture in and to the *14 reservation of fish and wild- the event of breach of conditions. life. VIII, Rights. § Discovery 32. Art. 11-Mineral and VIII, § Navigable 34. Art. 14-Access to Waters. appropriation shall be the basis for establish- navigable public Free access to the or waters ing right a in those minerals reserved to the by legislature, as defined shall which, upon State the date of ratification of any not be denied citizen of the United States Alaska, by people this constitution of State, except legisla- or resident of the that the subject mining to location under the federal may by general regulate ture law and limit location, discovery, filing, laws. Prior and as public such access for other beneficial uses or law, prescribed by prior right shall establish a purposes. prior right to these minerals 'and also a to leases, permits, and transferable licenses for VIII, § Application. 35. Art. 17-Uniform Laws rights their extraction. Continuation of these regulations governing disposal the use or depend upon performance shall of annual apply equally of natural resources shall to all labor, fees, rents, payment royal- or the of or persons similarly situated with reference to the ties, upon requirements may or other be subject by purpose matter and to be served prescribed by by law. Surface uses of land a regulation. law or mineral claimant shall be limited to those nec- essary processing for the or basic of extraction regulation 36. The that defines such uses is 11 deposits, Discovery the mineral or for both. (AAC) (2014). Alaska Administrative Code 96.020 appropriation right, subject shall initiate a law, requirements patent to further of to of 96.020(2). 37. 11AAC by mineral lands authorized the State and prohibited by Congress. provisions not of 96.020(@)Q)(A). 38. 11AAC apply this section shall to all other minerals reserved to the State which law are de- 9%6.020(0)(3)(F). 39. 11AAC subject appropriation. clared to Rights. § 33. Art. 13-Water surface and 96.010(a)(1)(A)(D). All 40. 11AAC people subsurface waters reserved to the for use, except common mineral and medicinal 96.040(c). 41. 11AAC waters, subject appropriation. Priority appropriation give prior right. Except of shall 42. 14. appropriation supply, for water purposes water shall be limited to stated uses, subject preferences among beneficial 43. 11 AAC96.005. (C) authorization revoca- permit a or other days' notice give will department will,. commissioner; [or] A revo- permit at ble revoking a before - immediately. is effective cation for cause (b) subject permit issued is Each (H) permit, right-of-way, or easement determines nec- department provisions the 38.05.850[.] under chap- this compliance with essary to assure AS uses, ter, with other minimize conflicts specifically 38.05.850 deals Alaska Statute impacts, or oth- to minimize environmental provides part: permits. It of the state. in the interests erwise to be (a) director, approv- prior without (c) granted will be for permit ... [A] commissioner, may permits, issue al of up years, to five unless specified term of on state land rights-of-way, or easements may permit [The sooner.... revoked roads, trails, ditches, gathering field for any number of consecutive extended pipe- transmission and distribution lines or to exceed one periods, period not each 38.85, subject telephone AS or lines not year:... lines, transmission and distribution
electric drilling pro- log storage, oil well sites (f) chapter does permit A under purposes for the of recov- duction facilities im- permanent placement authorize adjacent ering from land under minerals Temporary improvements provements. lease, uses or im- valid and other similar chapter permit under this authorized revocable, nonexclusive provements, expires must be removed when use personal for the or commercial revoked, specified by unless otherwise or is of resources that the director or removal department. value.... has determined to be of limited statutory are cited in this sections Three granting, suspension, revocation In the authority promulgation: for its regulation as land, the di- of a or easement 38.05.020, 88.05.085,and AS 88.05.850. AS AS give preference to that use of rector shall 38.05.020(b)(4) authorizes Alaska Statute greatest that will be of economic the land Natural Department Commissioner development the state and the benefit to powers and do the Resources to "exercise its resources. carry provisions necessary to out the acts 38]," [chapter 5 of Title objectives 88.05.945, section, statutory AS Another the Divisionof Lands with- which establishes *15 given notice to be DNR for provides for Department specifies in and its functions (e) actions. Subsection of section certain > responsibilities. and required under that is not "[nJotice states pow- 88.05.0385defines the Alaska Statute permit or other authoriza- this section for a Director of the Division ers and duties of the department." tion revocable case, AS Pertinent to this of Lаnds. 38.05.085(e) provides: 3. Mineral locations finding that the interests Upon a written served, di- will be best of the state VII, section 11 of the Alaska Con- Article may, with the consent of the com-
rector the basis for locatable stitution establishes sale, missioner, contracts for the approve rights. provides: It "Prior discov- mineral land, lease, disposal of available or other law, location, filing, prescribed by ery, resources, interests in property, prior right to these minerals shall establish of preparation and issuance them.... leases, right permits, prior also a finding by the director are the written their extraction." transferable licenses for subject following: to the acquired mining of claims
Holders (6) however, finding a written is not location, ... filing by discovery, do not have approval of before right to mine their claims. To an automatic minerals, acquire they must
actually extract
1057
Likewise, they
necessary permits.44
functionally
that licenses that are
irrevocable
8
in inten
right
engage
under
the tests
out in that
are
no automatic
set
case.4
have
is,
activities,
in
activities
exploration
requiring
prior public
sive
interests
land
notice
any mem
generally allowed to
are not
under the Public Notice Clause. We further
permit.45 For
public without a
ber of the
hold that the MLUPs in this case are
activities, a MLUP is
intensive
cable.49
We so conclude be
irrevo
required.
cause their revocation or non-renewal would
substantially destroy PLP's
investment of
4,
disposals
Why the MLUPs are
hundreds of millions of dollars and would
an interest
in land
place large-scale
long-lasting
leave in
Public Notice Clause of the
changes to the land which cannot be removed
10,
Constitution, article
section
Alaska
it,
significant damage
without
and because
in state
prohibits disposals of interests
lands
public impor
recognized
the State has
prior public notice. The central
without
allowing
exploratory
tance of
PLP's
activities
posed by
appeal
Nunamta's
is
question
proceed
necessary step
as a
in the devel
disposals of inter
the MLUPs are
whether
opment of a mine.
Notice
land under
the Public
ests
state
adopted
from
Northern
we
Alaska,
revocable at the
A
that is
Clause.
D.C. Cireuit two tests of functional irrevoca-b
grantor
generally
is
considered
will of the
ility.50 We used these tests to assess
recently stated that "[the
license.46 We
right-of-way
whether a
revocable
was
conveyance
grant of an easement
truly
on its face was
revocable and thus
within the
disposal of an interest
land
exempt
finding
from the
best
Clause],
meaning
Public Notice
[the
interest
Alaska Land Act.51The
we de
first test as
generally
of a license or a
the transfer
47
Nonetheless, whether a transfer
scribed. it in Northern Alaska "focuses on
is not."
opposed
the likelihood of
revocation as
is not
may be characterized as a license
52
legal right
explained
mere
revoke." We
necessarily determinative of a contention
that "where revocation would result
applies,
Clause
and we
that the Public Notice
Alaska,
here,
destruction of the licensee's sizeable invest
consistent with Northern
hold
State, Dep't
Beluga Mining
Co. v.
Natu
44: See
ness of the servient
and this
owner's
ownership,
recognition
requires
(Alaska 1999) (noting
as an- 'interest
570,
P.2d
Res.,
ral
973
575
company
right
land.'");
claim "had no
to mine"
THompson
Seconp
Prorerty,
8
on Rear
Epion
so).
Thomas,
64.02(b)
(David
permission to
§
but had to seek
do
A.
Tomas
ed.1998).
44.88.900(14) (including licens-
ASCf.
96.020; supra pp.
45. See 11 AAC
29-30.
Industrial
es
"interests
in land" for Alaska
Development
Export Authority).
State, Dep't
Natural
46. N. Alaska Envtl. Ctr.
(cita-
(Alaska 2000)
n.
Res.,
P.3d
Ctr.,
N. Alaska Envtl.
ments" a
right
voeability analysis
designed
of revocation is con
is
to determine
reserved
cause the
reality
permit
is
by "the
revocable
permits purporting
tradicted
to be
whether
53
licenses,
described
functionally
will,
irrevocable."
We
are not
at
and thus akin to
whether,
focusing "on
test as
the second
revocable,
are more like
truly
and therefore
revocation,
could remove
analysis
upon
the licensee
premise of the
is
easements.58 The
structures, or otherwise vacate
the installed
the substance of an interest rather than
land,
permanently damaging or
without
considering
should control when
its form
governmental
destroying
property for
surely applies
legal
premise
This
effect.59
54
in Wilderness Soci
use."
noted that
provi
strongly
under constitutional
to effects
to
permit
found that the
failed
ety the court
regula
those under statutes or
sions as to
proposed gravel
pass this test because
Indeed, in
we decid
tions.
Northern Alaska
pad
'be removed without
work
"could not
analyze
there
ed that we should
dеleterious
producing
permanent
irrevocability
because article
functional
underlying land." The court
changes in the
Constitution reflects the
VIII of the Alaska
respect
vegeta
cited harmful effects with
"importance
land
and of the
of our
resources
tion, erosion,
permafrost."
and the
necessity
legal
concomitant
for observance of
argue
PLP
Both the State and
safeguards
disposal
leasing
of state
analysis
Society
the framers'
lands." Article VIII "reflects
Northern
Alaska/Wilderness
functionally irrevo-
as to
recognition" of these concerns.61 Just as
whether
applied
not be
to determine
cable should
interpreting
they
guide
serve as a
statutes
constitution's Public Notice
whether
they
guide the
regulations,
should also
triggered
has been
because both
Clause
provision.
interpretation
of a constitutional
Society in-
and Wilderness
Northern Alaska
statutory
regulatory
require-
volved
appli
Turning
question
ments,
interpretation. But
not constitutional
cability
Society tests to
of the Wilderness
way
they
nothing by
little or
of substan-
offer
case,
argues
both
Nunamta
that under
revocability analy-
why
tive reasons as
tests,
the MLUPs are
frrevoca-
apply.
sis of those cases should not
ble. As to the first-the
destruction of the
points
licensee's investment
test-Nunamta
Both the Alaska Land Act and the Public
vice-president
testimony
to trial
PLP's
disposals
concern
of interests
Notice Clause
Indeed,
the Alaska Land Act was
land.56
environment
that PLP had invested "$300-
since
million" dollars
provide guidance
type
as to the
$400
meant to
Nunamta,
According
disposes
the State
2002.62
process
be used when
Corp., we decided that what
ka Railroad
53.
Id.
was in fact an ease-
Railroad called a "license"
54.
Id.
ment, specifically
profit,
permitted
because it
gravel from the land.
13 P.3d
the removal of
omitted)
(footnote
(quoting
55.
Id.
Wilderness
SOP, Inc.,
725,
(Alaska 2000).
735-36
And
we
874-75).
479 F.2d at
Soc'y,
park
decided that
for ATV use on state
easements because
were revoсa-
lands were
§
Compare
56.
Alaska Const. art.
easement char-
bie
for cause and had other
38.05.035(e).
AS
acteristics.
these gathered."70 We Pebble has affidavits; information rely on the properly namta can inaccurate, informa they are no evidence that the scientific argue that found PLP does not from the arguments affidavits and and the de independent of its use to has value tion appli- mine, context for proceedings provide superior court cited velop earlier the and the the investment destruction of none; cation of the PLP asserted that pleadings in earlier test.67 of Pebble's environ primary purpose "[the provide the research is to mental baseline that the destruction argues The State to enable Pebble to necessary information only applies where test investment sizable about business decisions" make informed on the improvements builds the licensee if development engineering devel mine is in investment not where the property, proceeded. opment inherently specula- Noting exploration. the State prospecting, of mineral tive nature the hundreds agree with Nunamta that We contends millions of dollars invested col- Pebble of the information value [tlhe PLP, money PLP furnishes including the permit it was not on the depends lects permitting pro- pay for the to the State under, Peb- the value of but on collected cess, that must be consid- is the investment claims, depends on a in turn ble's which of an investment of potential ered. The loss quality, like ore factors host of other DNR from cut- magnitude could deter this and, markets, ultimately, technology, exploration process re- ting short PLP's permission to secure Pebble can whether voking renewing permit. Such will not risk that the stars mine. But the development signal end of the act could ... to bear. align is Pebble's that PLP had and thus make useless the data quotes from State point, its To illustrate already gathered. explora the Pebble journal a law article on approv government agree with the State that "[where tion that states do not project, assured for test al is but not of sizeable investments destruction is akin to a project physical in that im- any only applies investment to investment 68 gamble." business evidently superior court provements, as the easily be manager A land could believed. decision that superior court based its doing so reluctant to revoke a in the destruc- would not result "revocation investment of hun- rendered valueless an the lack of on tion of Pebble's investment" related to a dreds of millions of dollars on infrastructure or "permanent installments necessary significant in a economic step superior court ac- Although land." physical im- regardless of whether venture spent signifi- knowledged "Pebble has point created. The provements were money exploration and cant amount large sums have been test is that where studies," consid- the court also environmental invested, effectively government purpose of these activities ered that the sole It property.69 permit, intellectual was "to collect forced to honor the full term of revoking prematurely it upon because "[elvacuating the site then found that Morton, sup- superior citation to court's record Soc'y F.2d 70. Wilderness (D.C.Cir.1973) (en banc)). page port 2 of its statement is a reference to Law; Findings and Conclusions of of Fact R.R. also v. Alaska Corp., 67. See Laverty parties page some of the names (Alaska 2000) prior (noting railroad's closing argument In its written action. legislative nature of audit about statements from testimony two of superior PLP relied on court agreement). property intellectual witnesses to assert that created; neither witness testified was Fish, al., Geoffrey Mine: Y. Parker et Pebble 68. independent value information would have Minerals, Testing Limits Alaska's transcript portion project. In the cited of the PLP, Process," "Large Permitting Auaska L. Mine per- lack of witness testified about the one (2008). 1, 49-50 Rev. manent, drilling above-ground structures at the sites; conclusion, mapping wetlands the other testified that support of this baseline docu- explo- was done "for the environmental findings about PLP's cited its earlier court ment." ration activities.
1061 jects," "definitely impact exploration invest- significant That is the case cause a loss. ment," mining and harm "the industry in here. Alaska, and the Alaskan economy generally." argues perceived Nunamta also that the public importance exploration of the would pеrceived public importance permit- Relying deter revocation. on the MOU Nu- ting exploration the of the Pebble ore deposit employees namta asserts that some 58 State by is underscored a letter from the Governor assigned project have been to work on the of Alaska to the U.S. Environmental Protec- PLP will and that reimburse the State at Agency urging ageney tion not to invoke part for their work. Under least procedure effectively that could prohibit MOU an estimated two million dollars in development of the "premature- Pebble mine billings budgeted were for reimbursement is, ly," allowing that without the mine to years. Additionally, according over five advance to the development permitting affidavit, Hughes's jobs 610 excess of phase. In the letter the Governor states: exploration be lost if PLP's would efforts "There has been tremendous investment shut down. Nunamta also cites potential the area based on the for mineral Hughes's testimony demonstrating development. liability We cannot fathom the perception suspension the State's is that the legal challenges accompany that could exploration permits would harm the unprecedented, after-the-fact determination industry mining entire in Alaska. government the federal that mineral de- public importance discount To Nunamta's velopment long- from these State lands no argument the State "[to contends 71 er viable." important public, extent that Pebble is to the themselves and the We conclude that the first Wilderness So- deposits it is the mineral potential important, ciety mine that are easy test has been satisfied. It is exploration authorized the MLUPs." But manager see how state land could feel deposits potential mineral mine can pressure tremendous not to revoke or refuse developed continuing, never be without thereby imposing renew MLUP a loss of exploration extensive authorized exploration hundreds of millions of dollars in scоpe MLUPs. The and number of the jobs risking funds and hundreds of as well as expanded considerably claims have since credibility loss the State's as a location predecessors began exploratory PLP and its mining projects. for future Based on the drilling under the MLUPs. record, "negligible there was a likelihood" that a would MLUP be revoked.72 agree per- with Nunamta that public importance exploration ceived. respect With to the second Wilder- cutting also would deter DNR from short test, Society mess Nunamta starts with the process. According - language deseribing of Northern Alaska affidavit, Hughes's such an act would result whether, upon test: court focuses on "[Thhe employment many in the loss of hundreds revocation, addition, the licensee could remove the in people. according Hughes, structures, stalled or otherwise vacate the negative message it would send a land, permanently damaging mining industry without or de regulatory that Alaska's cli- stroying property governmental mate is unsettled and that has "seem- Alaska argues ingly capricious regulations." message This use." Nunamta the remnant companieslooking pro- would "deter for new plugs bore holes and their are concrete and they might themselves the benefits seek from 71. Letter 2010 from Governor September Jackson, Sean Parnell to The Honorable Lisa P. responsible mining." Administrator, U.S. Environmental Protection Agency. per- Governor also notes that 72. See N. Alaska Envtl. Ctr. v. Dep't of cent of area residents are Alaska Native and 17 2000) (Alaska Res., Natural level, requests percent poverty fall below the (holding "negligible had likelihood of that the EPA "take into account that a ... deci- revocation"). preclude mining economically sion to in this depressed region abruptly and conclusive- Id. at 638. ly deny any opportunity area residents to avail harm. In our view buried with ronmental that cannot be removed steel structures containing drilling mud and other sumps harm. Nunamta producing permanent оut considered un- drilling wastes should also be quantity of points to the "enormous also disposal practical der the second test. The waste is "as a that PLP waste materials" structures, they are last- sumps are not matter, perpetuity to store allowed *20 ing the land. The landfill anal- include the alterations to materials State lands." These apt, by seems for the drillings ogy used Nunamta hole cuttings from the bore landfills, dispose of drilling sumps, like are used pounds of "hundreds of thousands of sumps The of potentially toxic material. drilling process." generated muds dug up and the waste materi- way course could be "there is no claims that Nunamta removed, only great at cost. al but . previously undisturbed return the land to its would record does not reflect whether this argues upon revocation." Nunamta condition risks, it environmental create additional applied permission for that had PLP clear that this will never occur. quantity seems bury "this of operate a landfill to concrete, steel, mud, cuttings and debris on the characterization of second State's clearly de Article state land" VIII government as "the use test" is flawed. test issuance of mand "more than the closed-door part of on the final The State focuses 'temporary' permit." a ignores question the of whether the test and removed.75 In contrast, structures can be characterizes the installed
By
the State
test,
question
the
of
expression
the
of this
"gov-
Society test as the
second Wilderness
suitability
government
for
use is not reached
argues
The State
that
use test."
ernment
capable
are
of
proposed
unless the
structures
long as "the struc-
this test
is satisfied as
Society
being removed. The Wilderness
proposes to
which the licensee
erect
tures
best
court found that
the second test was
removed,"
being
"upon
capable
opin
represented by
Attorney General's
the
may
the land
be left
suitable
revocation
concerning proposal
grant
a revocа
ion
The State
conditionfor Government use."
lay
tracks across a
ble
to a railroad
plugs
disagrees
Nunamta that
the
with
stated,
military
opinion
This
as
reservation.
casings
underground in the drill holes
left
Society:
quoted in Wilderness
test, arguing
this
are structures under
will
If the
is revocable at
the character of the land
do not affect
terms,
which
li
and if the structures
the
it unsuitable for
use.
State
or leave
proposes
capable of
censee
to erect are
plugs
casings protect
also notes that the
revocation,
being
in case of
and if
removed
against
damage and views the
environmental
may
land
be left in
upon revocation the
long
requiring
"dramatic and
second test
use,
government
condition for
the
suitable
standing
intentional
transformation
expects
fact
the licensee
landscape," arguing that no such transforma
may not soon find it to its
United States
contemplated by
here
tion was
interest
to revoke the license has no real
involved.
6]
situation.[7
bearing
legal
on the
agree with Nunamta that the bore
test,
Thus,
the structures
under the
where
plugged with concrete and encased
holes
removed,
capable
being
ques-
are not
purposes
installed structures for the
steel are
suitability
government
for
use does
tion of
Society test.
second Wilderness
not arise.
They
land.
These columns will remain
emphasizes
reading of the test
thus
practical
capable
being
in a
sense
This
are not
removed,,
continuing physical
undisputed
removing
importance
and it is
presence
the land of the structures con-
potential
for envi-
them would increase
Morton,
site,
casings
except
Society
drill
quotes
for the bore hole
74. The State
Wilderness
(en banc),
holes,
(D.C.Cir.1973)
plug
479 F.2d
re-
the material used to
can be
premise.
this
of weeks."
moved within a matter
75. The
court likewise did not consider
(emphasis
Soc'y,
We disposals revocability, MLUPs are or on temporal quality reversed because the or tional requiring prior necessarily arbitrary that a an interest in land conclusion of remand, therefore, mining project has become such an particular notice. On declaratory judgment likely unstoppable engine enter a financial it court should superi- employees to the reflecting this view. We leave the will of State overcome question determining issuing of other or charged or court the whether with whether inter- revoking permit is in the State's best a appropriate. action analysis explora- relies on a mineral est. This superior court is RE- judgment of the existing to an permit's appurtenance tion REMANDED for and this case is VERSED claim, acquired mining property interest declaratory judgment accor- entry of a through article section from the State further opinion and for such dance with this 11 of the Alaska Constitution: may appropriate. action as be Discovery appropriation shall be the Justice, establishing right in those min- WINFREE, basis for concurring. 96.040(a) (2014), applying p. of statuto- supra tions of state land" and rules set out 11 AAC 83. See ry interpretation, determine that we were able to permit disposal in land was a of an interest irrevocability court relies on the functional 1. The irrevocability. addressing functional before adopted Environmental in Northern Alaska tests (construing in land to at 634-37 interest P.3d Resources; State, Department Natural Center v. of construing dis- include and licenses and statutory best inter- case we concluded a posals "property limited include interests of permit finding at est was because duration"). adopted applied the func- functionally 2 P.3d irrevocable. issue was irrevocability only tests because we were tional (Alaska 2000). adopting the tests When 637-39 qualified permit assertion that the faced case, we relied on a federal Alaska Northern finding exception interest re- for an to the best Morton, Society where the D.C. Wilderness 637-39; quired Act. Id. at under the Alaska Land permit special that a land use Circuit concluded 38.05.035(e)(6)(C) (exempting permit "a see AS Pipeline con- Trans-Alaska issued in relation to by the commis- revocable or other authorization long irrevo- term and struction was finding re- from written best interest $42, (D.C.Cir.1973). sioner" F.2d 870-75 cable. 479 Alaska, quirement). noting "broad constitutional Northern disposi- public interest in mandate to protect deposits."3 mining Prior dis- mineral A erals reserved State.... claim is a land, location, property filing, prescribed although interest State it covery, right does not include an absolute law, explore right prior shall establish a minerals; for contingent or mine a claim is prior right these minerals also a "permission on DNR's to mine."4 But a leases, permits, and transferable licenses mining claim right holder has the to use the their extraction. Continuation of these claim's surface may preclude estate5 and upon performance rights depend shall estate, concurrent use of that subject surface labor, fees, payment annual or the authority to DNR's to issue the concurrent rents, royalties, require- upon other permit user a land use or other written au may prescribed by ments as be law. Sur- must, mining thorization.6 A claim owner face uses of land a mineral claimant however, labor,7 perform pay annual annual necessary shall be limited to those for the rent,8 engaging and obtain a before processing min- extraction or basic exploration.9 intensive mineral deposits, eral or for both. mining A permit application claim owner's 88.05.195(a) Alaska Statute further ex "map must include a detailed at a sufficient plains "[IrJights deposits of minerals showing general scale location of all ac- open . in or on state land that is to claim tivities and equipment" routes travel of all discovery, staking may acquired by loca description as well as "a proposed tion, recording.... The locator has the activity, any structures, associated and the right possession exclusive and extraction type equipment that will be used."10 If lying ... minerals within the bound DNR issues a it "is revocable for permit provision cause for a of a ... aries of the claim."2 The locator also has violation right to "use the surface of the location and is revocable at will if [DNR] determines necessary prospect to the extent for the that revocation is in the state's interest." for, of, owner, ing others, processing among right extraction or basic of A claim has the Jennings, may legal ejectment "against 2. See also Welcome v. have claim for *23 (Alaska 1989) ("A person acquires it"). 1042 the ex- who enters anyone right possess clusive to and extract minerals on location, by discovery, state land and record- 38.05.210(a) ("Labor 7. See AS shall be per- ("Possession ing."); mining a id. claim is improvements annually formed or made on or by satisfying statutory requirements evidenced development mining for the benefit or of each regarding performance location and of annual claim, location, mining leasehold and lease on work."). assessment adjacent that, claims, state land where except locations, mining leasehold or leases are held in (AAC) 3. 11 Alaska Administrativé Code common, expenditure may any be made on 86.145(a)(1) (2014). claim, location, lease."). mining one leasehold or Beluga Mining Dep't 4. See Co. v. Natural 38.05.211(a) ('The 570, min- Res., (Alaska 1999) (ex- 8. See AS holder of each 973 P.2d 575-76 rights ing prospecting plaining company property claim, location, site, leasehold "had in its mine; claims, right mining mining lease, advance, and ... shall but it had no to pay, right rental for the to continue to hold the min- 'rights' contingent"). prospective and claim, location, site, ing prospecting leasеhold ..."). mining Mines, 5. See Gold Dust Inc. v. Little Gold lease. Squaw Co., 148, (Alaska 2012) Mining 299 P.3d 165 ("'Under law, Alaska a who min- person acquires 96.010, 11 .020. 9. See AAC ing rights rights to located claims also has to corresponding make use of surface es- 96.030(a). 11 AAC ..."). tate. 96.010(a)(3) ("On land, 96.040(a). 6. See 11 AAC state a 11. 11 AAC It is not clear to me that permit or other written authorization is meaning will" we have considered the of "at See, activity subject employment e.g., for ... an to mineral Pitka v. on land a or outside the context. Auth., property person Reg'l land interest a other Interior Hous. estate (Alaska ("At-will 2002) property employees may than the holder of a interest ... if the be termi parties agree cannot on what constitutes reason- nated for reason that does not violate the Sims, use."); Shope implied good faith and fair deal able concurrent v. covenant of. (Alaska 1983) may (stating possessor ing.... implied P.2d Breach of the covenant mining subjective objective.... Disparate equitable quiet em claim has claim for title either issue, deny, appeal DNR's decision Appellant, MOORE, AimeeL. permit.12 revoke a much occasion to consid- We have not had (1) mining er the tension between a claim OLSON, Donald C. Donald Olson Enter rights property mineral and associ- holder's Ventures, LLC, prises, Inc., (2) Olson estate, Olson right ated to use the surface Inc., Service, Inc., Spirit, Reindeer Air regulatory restrictions on the State's Airways, Inc., Appel mining ability Express holder's to use the sur- claim and Polar develop- face estate lees. suggesting mining I that a ment.13 am No. S-15281. property has a interest an claim holder DNR must issue exploration permit or that Supreme Court of Alaska. situation, every exploration permit July2,2015. if:; (1) mining claim it does seem to me that constitutionally proper created holder has a ty explored and devel interest that can be surface; only by using
oped the State's land (2) mining preferential claim holder has a
right to reasonable use of the State's land (8) surface; mining requests holder clаim the land for intensive use of surface develop property; explore its mineral (4) DNR determines it is intensive use of best interest allow State's purpose land surface for this in an State's manner,
appropriate then the for the effectively disposal
surface land use is of a requiring public land interest notice
State
under the Alaska Constitution.14 treatment, ployee ability taking on unconstitu to receive was not a be- terminations mine; rather, grounds, firings company right tional that violate cause the had no policy examples may of actions that violate property claim was in the un- holder's interest *24 objective aspect implied covenant." claims). derlying (footnotes omitted)). Dictionary Black's Law de discretion; "Subject "at will" fines to one's as 14. Intensive use of State land surface for mineral chooses; (of esp. legal one wishes or a relation exploration development exceeds use al- ship), party ... able to be terminated either permit. lowed without a See 11 AAC 96.020 Dictionary Law cause[.]" without Brack's uses, (enumerating low-intensity including pros- ed.2009). (9th machinery, pecting mining heavy without ("An permit); Alyeska eligible person allowed on State land without
12. See 11 AAC 96.110 affect- Holdsworth, chapter may Corp. ed issued under this decision 426 P.2d Ski v. appeal (Alaska 1967) in accordance with 11 AAC (explaining decision that article sec- 02."). regula- Neither the relevant statutes nor tion 10 of the Alaska Constitution "reflects the expressly tions set out the State's con- recognition importance framers' of our issuing siderations when a mineral necessity land resources and of the concomitant permit. permit may "at will" But revoked legal safeguards disposal for observance of when DNR determines it is the State's best lands"). leasing virtually of state But under interest, presumably then will be issued standard, here allowed intensive only if DNR determines it is in the State's best through drilling use of State land surface interest. removal of core seismic samples, explosions, (in disposal casings, drilling drill waste enclosed Beluga Mining Dep't Co. Natu Cf. waste, pits). separate waste (Alaska 1999) Res., ral 574-176 (holding injunction delaying claim holder's