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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Aulukestai v. State, Dept. of Natural Resources (5/29/2015) sp-7011

Aulukestai v. State, Dept. of Natural Resources (5/29/2015) sp-7011

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, e-mail  

         corrections@akcourts.us.  



                  THE SUPREME COURT OF THE STATE OF ALASKA  



NUNAMTA AULUKESTAI;                                 )  

RICKY DELKITTIE, SR.; VIOLET                        )       Supreme Court Nos. S-14560/14579  

WILLSON; VICTOR FISCHER; and                        )  

BELLA HAMMOND,                                      )       Superior Court No. 3AN-09-09173 CI  

                                                    )  

                          Appellants and            )       O P I N I O N  

                          Cross-Appellees,          )  

                                                    )       No. 7011 - May 29, 2015  

                 v.                                 )  

                                                    )  

STATE OF ALASKA,                                    )
  

DEPARTMENT OF NATURAL                               )
  

RESOURCES,                                          )
  

                                                    )
  

                          Appellee and              )
  

                          Cross-Appellant,          )
  

                                                    )
  

                 v.                                 )  

                                                    )  

PEBBLE LIMITED PARTNERSHIP,   )  

acting through its General Partner,                 )  

PEBBLE MINES CORPORATION,                           )  

                                                    )  

                 Intervenor-Appellee.               )  

                                                    )  



                 Appeal from the Superior Court of the State of Alaska, Third  

                                                                              

                 Judicial District, Anchorage, Eric A. Aarseth, Judge.  



                 Appearances:         Nancy      S.   Wainwright,        Victoria      Clark,  

                 Stephen  E.  Cotton,  Trustees  for  Alaska,  Anchorage,  for  

                 Appellants  and  Cross-Appellees.    Laura  Fox,  Assistant  

                 Attorney  General,  Anchorage,  and  Michael  C.  Geraghty,  

                                           


----------------------- Page 2-----------------------

                   Attorney General, Juneau, for Appellee and Cross-Appellant.  

                   Matthew Singer and Howard S. Trickey, Jermain, Dunnagan  

                                                                             

                   & Owens, P.C., Anchorage, for Intervenor-Appellee.  J. P.  

                                   

                   Tangen, Attorney at Law (P.C.), Anchorage, and Lawrence  

                   V.  Albert,    Anchorage,  for  Amicus  Curiae  Alaska  Miners  

                   Association.  



                   Before:  Winfree, Maassen, and Bolger, Justices, Matthews  

                   and  Eastaugh,  Senior  Justices.*  

                                                                  [Fabe,  Chief  Justice,  and  

                                                                       

                   Stowers, Justice, not participating.]  



                   MATTHEWS, Senior Justice.
  

                   WINFREE, Justice, concurring.
  



I.       INTRODUCTION  



                                                                                                

                   Challenged in this case are land and water use permits allowing intensive  



mineral  exploration  on  State  land.    The  main  question  we  address  is  whether  the  



                   

Department of Natural Resources (DNR) had to give public notice before issuing the  



                                                                                            

permits.  Because the Alaska Constitution requires public notice when interests in land  



                                                            

are transferred, the answer to this question depends on whether the permits conveyed an  



interest in land.  After a trial, the superior court held that notice was not required because  



                                                                                    

the permits were nominally and functionally revocable and therefore did not transfer an  



                                                 

interest in land.  We conclude that the land use permits were not functionally revocable.  



                                                                                                  

Because we therefore conclude that they conveyed an interest in land and consequently  



should have been preceded by public notice, we reverse the judgment of the superior  



court and remand.  



         *         Sitting  by  assignment  made   under  article  IV,  section  11  of  the  Alaska  



Constitution and Alaska Administrative Rule 23(a).  

                                                           -2-                                                       7011  


----------------------- Page 3-----------------------

II.       FACTS AND PROCEEDINGS  



          A.        The Setting  



                   The Pebble ore deposit lies north of Lake Iliamna.  It consists of copper,  



                                                                                                               

gold, and other minerals and covers an area of about 360 square miles.  The ore deposit  



                                                                                              

sits astride the watersheds of the Kvichak and Nushagak Rivers, which flow into Bristol  



          

Bay.   Bristol Bay is home to the world's largest wild sockeye salmon fishery.  The  



                                                                   

average annual run of this high value species during 1990-2010 was about 37.5 million  



                                                                                                        1  

                                                                                                           The majority  

fish of which about 25.8 million were caught for commercial purposes. 



of the production of Bristol Bay sockeye comes from the Kvichak and Nushagak River  

                                          



watersheds.  



                   The waters flowing into Bristol Bay host all five species of Pacific salmon  

                                                                                                      



as well as trout, char, and grayling. The sportfisheries for king salmon and rainbow trout  

                                                                                    



in the Bristol Bay watershed are world renowned. Additionally Bristol Bay salmon form  

                                                                                                       



the centerpiece of the subsistence activities of the residents of this region.  The area of  

                                                                                                  



the ore deposit also provides important habitat for land-based wildlife, providing winter  

                                                                     



and calving habitat for the Mulchatna caribou herd, "essential stream concentration" for  

                                                                                          



brown bears, and moose habitat.  



          B.       Exploration Activities  



                   The Pebble ore deposit was discovered in the late 1980s.  The mineral  



claims to the deposit were secured by discovery, location, and filing.  They are now  



                                                                                                            

owned by Pebble Limited Partnership ("PLP"). Exploration of the deposit has continued  



                                                                                    

since 1988 and has escalated over the years.  Exploration has primarily been conducted  



                                                                            

by exploratory drilling.  As of 2010, when the trial in this case took place, some 1,269  



          1        PAUL SALOMONE ET AL ., 2010 BRISTOL BAY  AREA ANNUAL MANAGEMENT  



REPORT ,   85,   100   (Apr.             2011),   available           at   www.adfg.alaska.gov/FedAidpdfs/  

FMR11-23.pdf.  

                                                             -3-                                                       7011
  


----------------------- Page 4-----------------------

                                             

bore holes had been drilled.  In addition, extensive seismic studies had been conducted  



using explosives along seismic lines.  PLP and its predecessors had expended over $300  



million on exploration.  



                    In  the  years  immediately  before  the  trial,  the  exploration  program  was  



supported by helicopters.  Drilling was conducted using portable rigs that were flown to  



each drill site.  Several sites might operate at one time.  The drill rigs were placed on  



wood  decking  or  tundra  mats.    Between  one  and  three  sump  pits  were  dug  for  the  



                                                                                                      

settlement of the slurry of drilling mud and drilling waste that was discharged from the  



               2  

                              

bore hole.         Water for drilling was obtained from nearby sources.  When drilling was  



                                                                                                             

completed at each site, bore holes were generally plugged with concrete and the rigs and  



                                             

drill pads were removed  by  helicopter.  The sump holes were covered up using the  



original overburden and re-seeded if necessary.  Concrete plugs remained in all drill  



holes,  and  metal  casings  were  left  in  some  drill  holes  as  well.    Some  bore  holes  



containing water that might be useful for future operations were merely capped, rather  



than plugged.  



                                                

                    Since 1989 DNR has issued a series of permits for exploration activity in  



                            

the area, with the area encompassed in the permits and the number of claims increasing  



                       3  

                                                                                                              

over the years.           The permits were "Miscellaneous Land Use Permits," abbreviated as  



          2         This describes best practices.  There is evidence that at times PLP and its   



predecessors simply allowed the   discharged material to flow onto the tundra or into  

tundra ponds.  



          3  

                                                                                            

                    Nunamta alleged, and DNR admitted, that no permits issued for 2000 or  

                       

2001 and that PLP's predecessors filed Affidavits of Annual Labor, showing that they  

engaged  in  some  mining  activities,  for  those  years;  Nunamta  and  DNR  dispute  the  

significance of this fact.  

                                                               -4-                                                         7011
  


----------------------- Page 5-----------------------

                4 

"MLUPs."   Until 2007 PLP's predecessor mining companies took any needed water out  

                                                                                             



of nearby streams, ponds, or bore holes to support their drilling operations without a  

                                                                                



                                        5  

separate water use permit.   PLP first applied for a water use permit in late 2006 for its  

                                                                                             



2007 activities; the Department issued water use permits for five-year periods.  These  

                               



permits were "Temporary Water Use  Permits," or "TWUPs."  The MLUPs and the  



                                                   

TWUPs were issued for specific terms, but they also provided that they were revocable  



at will.  



                    Although the exploration has been authorized incrementally, some facilities  



                                                                                                                              

associated with the exploration have remained in place over many years.   There is a  



                                                                                                                   

supply depot and staging area occupying an area of about 30 meters by  300 to 350  



                                                                                                          

meters.    This  consists  of  plywood  sheds,  wall  tents,  and  mats  for  storing  material,  



                                             

interconnected  by  wooden   walkways.    All  the  buildings  are  capable  of  being  



disassembled and removed by helicopter.  



                                                               

                    There is a fueling station at a lake where float planes can land and transfer  



                                                                                           

fuel to tanks.  The stored fuel is used to refuel helicopters, but it is also transported to  



drill sites by helicopter for use at the sites. At the fueling station there are a dock, two  



                                                                            

helicopter landing pads, five large fuel tanks in an aluminum containment structure,  



                                                                                                                     

tundra mats, and a temporary shelter building.  At a different location there is a separate  



                                                                 

storage area, used primarily for storage of hoses and fuel containment structures, which  



consists of several plywood sheds, wall tents, and tundra mats.  



          4         Permits  from  1992  and  1993  are  called  "Exploration  and  Reclamation  



Permits," but we see no significant difference between these permits and those labeled  

                                                                                                                

"Miscellaneous Land Use Permits."  



          5         Some applications filed before 2007 included information about estimated  



water usage needs.  

                                                               -5-                                                         7011
  


----------------------- Page 6-----------------------

                                                                                                              

                    The workers on the exploration project are not housed there.  Instead they  



are flown in daily from a village some 17 miles away.  As the trial court stated:  



                    There are no roads or wheeled vehicles as it is an entirely  

                    helicopter-supported   program.      There   is   no   permanent  

                                                                                                

                    airstrip, no residential camp facilities, no four-wheel trails, no  

                                                          

                    sewage lagoon, no water treatment plant, no bridges and no  

                                                  

                    obstructions to any water body.  All of the structures found  

                    at  Pebble  are  temporary  and  can  be  deconstructed  and  

                    removed by helicopter.  (Citations omitted.)  



          C.	       The 2009 MLUP  



                    The most recent MLUP as of the time of trial provides that "[e]ffective  



dates of this permit shall be  February 26, 2009 through December 31, 2010, unless  

                                            



sooner revoked for cause.  This permit is also revo[c]able at will."  It states that it is "for  

                                               



activities upon State managed lands described in the Hardrock Exploration Application"  

                                                                             



submitted by PLP.  



                    The  activities  described  in  the  application,  and  thus  permitted  by  the  



                                                                                      

MLUP, included 100 diamond-core drilling bore holes that could be as deep as 7,000 feet  



                                                                                         

and have a diameter of up to 6 inches.  Also permitted were 325 bore holes drilled with  



mud-rotary and reverse-circulation drills into bedrock to depths of from 10 to 500 feet.  



                    The permit also allowed shooting 34 seismic blast lines totaling a maximum  



                                                                

of 220,000 feet.  Along the seismic lines, between 500 and 925 pounds of dynamite  



                                                                                                 

could be exploded in approximately 1,100 shots.  Each shot will excavate a hole from  



                                                                            

2 to 12 feet in diameter and 2 to 3 feet deep.  After the permit expires these blast holes  



                                                                                                    6  

will still be present although they will be smoothed and revegetated.   



          6         The plan states:  



                    Each shot hole will be smoothed and rounded by hand shovel  

                    and rake. Where possible, covering vegetation will be cut out  

                                    

                    and removed prior to the blast and subsequently rolled back  

                                                                  

                                                                                                           (continued...)  

                                                             -6-	                                                       7011
  


----------------------- Page 7-----------------------

                                                                                                            

                   The permit also allowed activities in anticipation of the yet to be reached  



mine  development  phase.    It  allowed  320  shallow  soils  test  pits  "to  determine  soil  



                                       

horizons for construction purposes."  These pits could be approximately four feet wide,  



                                                                                            

seven feet long, and up to seven feet deep.  Once the sampling process terminated, they  



                                                                                                      

would be backfilled, the overburden would be put back in place, and re-seeding would  



be performed if necessary.  



                                                                                     

                    Concerning the facilities that have spanned a number of permit periods, the  



                            

application stated  that  the storage camp built in 2004 continued to be used but that  



                                                                                                             

certain  plywood  sheds  were  removed  and  replaced  with  a  24-foot  by  60-foot  



WeatherPort tent.  That plus one remaining 10-foot by 20-foot wooden structure were  



the only buildings at this location.  At a separate location two structures  had "been  



                                                                                                  

erected to protect water hose[s] and keep them from freezing." One was a 10-foot by 20- 



foot metal-clad building and the other is a 15-foot by 36-foot WeatherPort tent.  The  



application noted that "[a]ll are temporary and will be removed when no longer needed."  



                                                                 

                   Finally, the application noted that PLP had TWUPs allowing the use of  



                                                                             

water from streams, ponds, and previous drill holes for up to 16,200 gallons per day or  



                                                                        

113,400 gallons per week "per rig."  PLP's plan of operation called for up to 12 rigs to  



be on site.  



          D.       Proceedings  



                                                                         

                   Nunamta Aulukestai, an association of eight Native village corporations in  



the Bristol Bay region, and two individuals who reside in Nondalton, Jack Hobson and  



Ricky Delkittie, Sr. (collectively "Nunamta"), appealed the issuance of the MLUP for  



          6(...continued)  



                    over the site when reclaimed.  The disturbed surface will be  

                   reseeded  with  native  vegetation.                 As  the  program  will  be  

                                                                                   

                   helicopter supported, no ground footprint will be left other  

                   than the blast hole.  

                                                             -7-                                                       7011
  


----------------------- Page 8-----------------------

the  Pebble  project  for  2009-10.    The  appeal  was  brought  in  March  2009,  and  was  



                                                                                                        

directed to the DNR Commissioner.  It challenged, among other things, the lack of public  



                                                                                                      

notice prior to issuing the permit, DNR's failure to address the cumulative impacts of the  



                                                                                           

proposed exploration activities, and the lack of specific information concerning both the  



sources of water and the nature of the materials to be used for plugging drill holes.  



                                                                                                                              

When DNR denied Nunamta's request to stay the permit, Nunamta, in July of 2009, filed  



                                                                                                 7  

                                                                                                    This complaint forms the  

a complaint for declaratory judgment in the superior court.                                                  



basis for the present appeal, and we will describe it below, after we describe the course  



of the administrative appeal.  



                                                                                                                                

                      In the administrative appeal, in November 2009 DNR denied the appeal on  



the ground Nunamta did not have standing.  But DNR also stated that it had considered  



                                                                                           

all the legal and factual grounds presented by Nunamta and indicated that it would have  



                                                                   

denied the appeal on the merits as well.  DNR issued this decision without first holding  



an evidentiary hearing or calling for or receiving briefing on any issues.  



                      Nunamta appealed DNR's decision to the superior court, challenging its  



                                       

rulings on due process grounds.  In October 2011 Judge Michael Spaan ruled that DNR  



                                                                                                              

had violated Nunamta's due process rights by rejecting the appeal on standing grounds  



                                                   

without offering Nunamta the opportunity to cure the alleged standing deficiency.  But  



                                        

the court also ruled that any harm from this action was cured because DNR had rendered  



                                                                                              

a decision on the merits and Nunamta had no other valid due process claims.  Nunamta  



                                  

appealed this ruling to this court.  After the case was briefed and orally argued, we asked  



for supplemental briefing as to why the appeal should not be dismissed as moot in light  



           7          Nunamta was joined   by four individuals as plaintiffs in the declaratory  



judgment action: Ricky Delkittie, Sr. of Nondalton; Violet Willson of Naknek; Victor                                 

Fischer of Anchorage; and Bella Hammond of Lake Clark.  For convenience we also  

collectively refer to these plaintiffs as "Nunamta," while recognizing that not all of the  

                                                                                              

individual parties were involved in both cases.   

                                                                     -8-                                                              7011
  


----------------------- Page 9-----------------------

of the expiration of the permit at issue and because the pertinent issues were raised or  



could be raised in the declaratory judgment action.  After considering the supplemental   



                                                                                                         

briefing,  we  entered  an  order  dismissing  the  administrative  appeal  as  moot  without  



additional explanation.  



                                                                                         

                    We now turn to the proceedings in Nunamta's declaratory judgment action.  



                                                                                                               

The complaint contained six counts, each of which generally alleged that the statewide  



                                                           

permitting process for hardrock mines is constitutionally deficient and also specifically  



alleged that the permitting process related to the Pebble exploration is deficient in the  



same way.  In particular:  



                                         

                    *         Count I claimed that DNR, by granting permits for exploration and  



"water use without analysis or findings addressing the direct, indirect and cumulative  



                                                                                                      

impacts  of  [mining  exploration]  uses  on  the  public  domain,  has  failed  to  fulfill  its  



fiduciary public trust duty to manage state resources for the common good."  



                                                                                                                    

                    *         Count  II  claimed  that  the  issuance  of  exploration  and  water  use  



                                                                                     

permits without analysis as to their effect on "reasonable concurrent users of public land,  



                                                                                                            

water, fish and wildlife, cultural resources and subsistence resources" violates article  



VIII, sections 1, 2, and 8 of the Alaska Constitution.  



                    *         Count III claimed that DNR violated article VIII, sections 3 and 4  



                                                                                                          

of the Alaska Constitution relating to the reservation of fish, wildlife, and waters to the  



people for common use subject to preferences among beneficial users, by issuing the  



permits with no analysis and thus elevating mining to the highest preference without  



justification.  



                                                                                                        

                    *         Count IV claimed that the exploration and water use permits issued  



by DNR "are  de facto disposals of interests in state land and water requiring public  



                                           

notice and other safeguards of the public interest" in violation of article VIII, section 10  



of the Alaska Constitution.  



                                                               -9-                                                         7011
  


----------------------- Page 10-----------------------

                    *         Count V alleged that DNR violated article VIII, section 13 of the  

                                            



Alaska Constitution relating to the reservation of water to the people for common use by                  



permitting the use of significant amounts of water for "at least five years or longer" with  

                                                                                



"no  public  notice  or  analysis  of  the  impacts  of  that  water  use  on  beneficial  and  

                                                                                                          



concurrent uses."  



                                                                                                                  

                    *         Count VI alleged a violation of article VIII, section 17 of the Alaska  



Constitution - the Uniform Application Clause - claiming upland hardrock mining  



exploration  permits  were  issued  without  public  notice  and  without  a  public  interest  



                         

review whereas offshore mining exploration permits can only be issued after notice is  



given and a best interest analysis is conducted.  In addition, this count challenged as  



                

irrational the statutory and regulatory water use system that allows significant water use  



labeled  "temporary"  without  public  notice  or  a  public  interest  review  whereas  



withdrawals deemed "permanent" must be accompanied by such protections.  



                                             

                    PLP  intervened  as  a  defendant.    The  State  and  PLP  filed  motions  for  



                                                                                   

summary  judgment  on  all  six  counts.    The  superior  court,  Judge  Eric  A.  Aarseth  



                                                                                                 

presiding, granted these motions as to Count VI relating to the Uniform Application  



Clause, ruling that section 17 serves only to protect similarly situated users from unequal  



                                                                                     

application of laws and regulations, whereas Nunamta's claim focused not on users but  



                

particular uses of the public lands.  



                    As  to  Nunamta's  other  claims,  the  court  ruled  that  they  could  not  be  



considered  generally,  but  could  be  considered  to  be  "as  applied"  challenges  to  the  



                                                         

statutes and regulations under which the exploration permits were issued.  The court  



collectively summarized the remaining counts as claiming "that the State should have  



                                                                           

performed a best-interest finding before granting the permits at issue and should have  



made that finding available to the public."  



                    The court stated:  



                                                             -10-                                                        7011
  


----------------------- Page 11-----------------------

                             As the State notes, the constitution does not mention  

                   a best-interest finding, and one is not specifically required by  

                                                                 

                   the  language  of  the  various  natural  resource  provisions.  

                                                                           

                   Instead,  a  best-interest  finding  is  an  artifact  of  the  State's  

                   consideration          of    constitutional        policies       of    maximum  

                   beneficial use, sustained yield, concurrent uses, etc.  All of  

                   these  considerations,  in  turn,  are  expressions  of  the  same  

                   underlying constitutional policy "to encourage the settlement  

                                                                                       

                   of [public] land and developments of [the State's] resources  

                                                  

                   by making them available for maximum use consistent with  

                                                                                    

                   the public interest." Because these intertwined constitutional  

                                                 

                   considerations  are  encompassed  by  a  single  finding,  the  

                   ultimate question here is whether the State should have made  

                   such a finding before issuing permits to the Pebble Project, or  

                   whether (as the State alleges) it was only required to adhere  

                   to    its   own      statutory       and     regulatory        limitations       and  

                   authorizations.  



                   The  court,  at  least  provisionally,  rejected  the  State's  argument  that  the  



provisions  of  article  VIII  did  not  impose  any  protections  independent  of  those  



specifically imposed by the legislature:  



                   [P]rovisions of Article VIII, in order to have any meaning at  

                                           

                   all, must be interpreted as containing independent constraints  

                   on State action.  As noted above, however, because the main  

                   dispute  in  this  case  is  whether  the  State   should  have  

                   considered   the   content   of   any   of   these   constitutional  

                   provisions before issuing the MLUPs and TWUPs, the Court  

                   need not consider the application of these provisions on a  

                   count by count basis.  The State either needed to balance the  

                                                                           

                   policy considerations entrenched in Article VIII or it did not.  

                                                                                  



                   The  court  concluded  that  there  were  material  issues  of  fact  regarding  

                                                                                         



Nunamta's remaining claims that the State did not comply with the provisions of article  

                                                                    



VIII, writing, "Whether these permits themselves are disposals, and whether the nature  

                                                                                             



of the land use triggers constitutional considerations requires  an examination of the  



underlying activities."  



                                                           -11-                                                      7011
  


----------------------- Page 12-----------------------

                  Both the State and PLP moved for reconsideration of the court's order on  

                                                                                                 



summary judgment.  They argued that only questions of law were presented and that  

                                                                                      



requiring a trial would have the effect of creating an ambiguous and unworkable process  



for  issuing  exploration  permits.    The  superior  court  denied  these  motions  and  later  



defined the issues for trial in an Order On Rule of Law as follows:  



                  At trial, the court will consider:  



                   1)       Whether the permits issued for mineral exploration at  

                  the Pebble Project are functionally irrevocable 1 and amount  



                  to a "disposal" under Art. VIII, Section 10.  



                  2)       Whether, if the permits amount to a "disposal," the  

                                             

                  State provided constitutionally adequate prior public notice  

                  of the disposal under Art. VIII, Section 10, and  



                  3)       Whether the exploration permits and the associate[d]  

                  mining exploration activity unconstitutionally impinged on  

                  reasonable concurrent uses under Art. VIII, Section 8.  



                  The common theme in Counts I, II, III and V in Plaintiffs'  

                  Complaint is that permits are subject to restrictions based on  

                                                                      

                  reasonable concurrent uses.2  



                                                                           

                           The court will receive testimony  and evidence as it  

                  relates to the revocable nature of the permits and any actual  

                  impact the exploration activities or permit issuance has had  

                  on the reasonable concurrent uses  or common uses of the  

                  land and water as defined by the pertinent sections of Art.  

                                         

                  VIII and as pled by the Plaintiffs.  The court will not conduct  

                                                                 

                  its own best interest finding ("BIF") or determine whether the  

                                    

                  State  conducted  a  "functional  equivalent"  of  a  BIF.    The  

                  court will not need to bifurcate the trial.  The court will not  

                                                                            

                  entertain evidence or argument about prospective harm due  

                  to the development or actual mining within the concerned  

                  geographical areas.  



                  _______________________  

                  1        The  supreme  court  adopted  a  hybrid  approach  to  



                  determining  whether  a  permit  is  functionally  irrevocable.  



                                                        -12-                                                   7011
  


----------------------- Page 13-----------------------

                        Northern  Alaska  Environmental  Center[]  v.  DNR ,  2  P.3d  

                        629,   638   [(Alaska   2000)].      A   permit   is   functionally  

                        irrevocable if the permit is not likely to be revoked because  

                                                                                             

                        of  its  magnitude  or  if  there  is  long-term  and  harmful  

                        environmental  impact.    Id .  at  638-39.    This  test  reads  

                        consistent with the constitutional commentary on Section 10:  

                                                           

                        "[t]ransactions may vary in importance from routine to those  

                                                                                                          

                        of substantial value."  

                        2           "Reasonable concurrent uses" is similarly described in  



                        the  various  sections  of  Art.  VIII  as  follows:  Section  1  - 

                        "public    interest;"  Section  2  -  "benefit  of  the  people;"  

                        Section 3 - "common use;" Section 4 - "preferences among  

                        beneficial  uses;"  and  Section  13  -  "common  use"  and  

                        concurrent uses.  



                        A  ten-day  trial  was  held.    The  primary  focus  of  the  trial  was  water  



contamination issues.  Nunamta presented evidence that contamination had and would  

                            



continue to occur through acid rock drainage.  One expert witness, Dr. Moran, described  

                                                                                                                        



this as "the tendency of mineralized rock that has sulfides . . . to react with air and water,  

                                                                                                              



and especially bacteria, to create natural acids that then solubilize the rock and release  



contaminants."   This process occurs both in bore holes and in the sumps, where it is  

                              



magnified because of the greater surface area of the pulverized drilling waste.  According     



to another of Nunamta's experts, Dr. Zamzow, finely ground mineralized rock, when   



exposed to wetting and drying conditions, may take up to 15 years to become acidic.  



                                                                    

Dr. Moran agreed that plugging bore holes would minimize groundwater contamination  



                                                                                                                                    

from them, but testified that often plugging is not complete, allowing  chemical and  



                                                                                          

biological reactions to continue.  In addition, Dr. Moran testified that the cement grout  



                                   

in plugs degraded over decades and "then you get groundwater contamination long- 



term."  



                        According  to  Nunamta's  experts,  the  other  major  source  of  potential  



contamination is the drilling mud.  The most commonly used "EZ mud" contains toxic  



                                                                           -13-                                                                     7011
  


----------------------- Page 14-----------------------

chemicals.  A witness employed by the State Department of Environmental Conservation  



                                                                    

testified that EZ mud components were toxic to fish in the concentrations found in the  



                                                         

water in bore holes but thought that by the time wastewater from a bore hole could travel  



                                                                                                     

100  feet  to  a  water  body,  it  would  be  greatly  diluted  and  thus  "we  qualitatively  



                                                                      

determined that it was unlikely for the drilling additive to reach a water body at a level  



that would be toxic to fish."  



                    The  testimony  presented  by  Nunamta  concerning  water  contamination  



addressed not only the potential  for contamination.  Dr. Moran testified that his review  



of the data from several monitoring wells indicated "levels of metals and other anions  



                                                                                      

that if freshwater fish were exposed to them, those would be toxic."  Dr. Zamzow also  



                                                                                             

testified that the data collected by Pebble in monitoring wells indicated that drilling is  



                                        

having an impact on water chemistry, although she was unable to state the degree of the  



impact.  



                    With respect to other impacts, Nunamta presented testimony that some  



                                

tundra ponds used as water sources for drilling had been temporarily dewatered and that  



                                                       

in the past, drilling muds had been  discharged into ponds.  Nunamta also presented  



                                                                                                          

testimony that the frequent helicopter traffic had caused caribou, moose, and brown bear  



to  avoid  the  area.    Further,  a  guide,  Steve  Morris,  testified  that  he  previously  had  



                                                                                 

maintained spike camps for hunters of caribou, moose, and bear, but that the exploration  



activity  had  rendered  the  area  unusable,  saying,  "The  helicopter  activity  in  itself  is  



                                                                                    

enough that you can't bring a paying client out there, put them in a spike camp, any one  



of those dozen units that I used to use.  They will see more helicopters in one day than  



they will big game."  



                                                            

                    PLP also presented expert testimony on the issue of water contamination.  



PLP's expert, Dr. Stelljes, testified that he reviewed data from 37 monitoring wells and  



was unable to find any chemical fingerprint indicative of acid rock drainage.  It was his  



                                                             -14-                                                       7011
  


----------------------- Page 15-----------------------

opinion  that  the  exploration  activities  had  not  harmed  water  quality  in  the  area.  



Dr.  Stelljes  also  testified  that  drilling  mud  discharged  into  the  sumps  creates  an  



                                 

impermeable barrier and is "entombed" between the shallow bedrock below and a "very  



                                         

impermeable" tundra mat and compacted soil above, thus preventing it from migrating  



into  groundwater.    In  addition  he  testified  that  the  data  Dr.  Zamzow  relied  on  as  



                 

indicating contamination caused by drilling were simply "outliers," that is, sampling  



                            

errors.  PLP also presented evidence that there has been no impact on local caribou or  



                                                                                               

other wildlife as a result of its exploration activities, and that tundra ponds from which  



water was taken would fully recharge in less than a year.  



                                                                                                                      

                     Following the trial the court issued detailed written findings.  The court  



                                                                                                          

found that the evidence presented was "insufficient for this Court to find it more likely  



                                                                  

true than not that the exploration activities at the Pebble study area have actually caused  



                      

or will in fact cause long-term, harmful environmental impacts from acid rock drainage  



                                                                                                                        

or other contamination."  As to water contamination issues, the court adopted the views  



                                

advocated by PLP.  The court found that Dr. Moran was a trustworthy witness but that  



                                                                                                                           

his testimony as to toxic concentrations of dissolved metals in monitoring wells did not  



                                                                                                             

establish that the elevated levels were caused by exploration activities; the court further  



discounted this testimony as conclusory, speculative, and lacking a basis in scientific  



                                                                                                     

data.  The court also observed that Dr. Moran "admitted . . . that fish do not live in the  



                                     

groundwater" and that "Dr. Zamzow similarly admitted that fish are not swimming in  



                                                                

underground monitoring wells." "Thus," the court concluded, "elevated levels of metals  



                                                                                  

in  groundwater  monitoring  wells  is  not  evidence  probative  of  impacts  to  aquatic  



                                    

organisms."  The court also concluded that Dr. Zamzow was relying on unreliable outlier  



                                                                                                             

data  points  in  reaching  her  conclusion  that some  of the  monitoring  wells  indicated  



ongoing acid rock drainage reactions.  



                                                               -15-                                                          7011
  


----------------------- Page 16-----------------------

                    The court also found "that most of the core holes drilled at the Pebble site  



since  2006  have  been  plugged"  and  that  "[b]ecause  the  holes  have  generally  been  



                                                                           

plugged,  the  likelihood  of  acid  rock  generation  is  substantially  reduced  or  stopped  



                                                                                                                 

altogether."  With respect to acid rock drainage from the drill cuttings in the sumps, the  



court  found  the  evidence  "insufficient  to  conclude  that  the  sump  pits  are  in  fact  



generating [acid rock drainage] contamination" and that even if they were "there is no  



                                                                                  

evidence that such contamination is actually migrating to an area in concentrations that  



may cause harm to a living organism."  



                    With  reference  to  the  evidence  that  PLP  had  temporarily  pumped  dry  



several tundra ponds, the court concluded that this did not necessarily mean that harm  



to fish and aquatic life had occurred because there would have to be proof that PLP  



                                                                                                          

"(1) extracted all the water in a pond, (2) that fish were actually present in the pond, and  



(3) that the lack of water in fact harmed the fish."  The court concluded that there was  



                                                                                                              

not credible evidence that all three of these things had occurred.  The court further noted  



                                       

that even if all the water were removed from a tundra pond containing blackfish, that  



                                                                                                     

would not necessarily mean that the fish would be impacted because they can breathe air  



for a period of time.  



                                                                         

                    As to impacts on wildlife, the court found that the decline in the number of  



                                                                       

caribou in the Pebble area was due to the natural migratory nature of caribou and cyclical  



                                                                       

variations in their population, and not to any of PLP's exploration activities.  The court  



also found there to be insufficient evidence that PLP's exploration activities had caused  



a permanent impact on any other wildlife in the area.  



                                                                                                         

                    Concerning  the  testimony  of  the  guide,  Steve  Morris,  that  his  guided  



                                                                                          

hunting activities had been displaced by helicopter activity, the court refused to accept  



                                  

this reason, finding it more likely that he no longer used this area because of a change  



in state hunting regulations that prohibited non-resident hunters from taking caribou.  



                                                             -16-                                                        7011
  


----------------------- Page 17-----------------------

Further, the court found Morris's reasons were personal and must give way to other  

                                                                                                               



interests: "[R]ather, it was a personal preference to avoid signs of civilization when  



taking clients on wilderness hunting trips. . . . Mr. Morris must share the State resources  

                                                                                               



with other reasonable concurrent users . . . ."  



                    The court concluded in general that Nunamta did not show that it was more  

                                                                                                                  



likely than not that exploration had caused long-term and harmful environmental impacts  



in the Pebble project area, or that such harms "necessarily will occur."  The court also  

                                                            



concluded that PLP's exploration and water use permits were not disposals of interests  

                                                                                      



in State lands and did not unconstitutionally impinge on reasonable concurrent uses.  The  

                                                                                                                             



court's final paragraph stated:  



                              This Court  finds that Plaintiffs failed to prove their  

                                                 

                    case as has been explained in this decision.  The MLUP and  

                    TWUP permits at issue in this lawsuit do not amount to a  

                                                              

                    disposal  of  an  interest  in  state  lands  under  Article  VIII,  

                                             

                    Section 10 of the Alaska Constitution.  Therefore, the permits  

                                                          

                    in question did not trigger any constitutional requirement for  

                                                            

                    prior public notice or that the State conduct a best interest  

                    finding before they issued the permits.  The evidence at trial  

                                 

                    also failed to demonstrate that the permits or the associated  

                    mining  exploration  activity  impinged  on  any  reasonable  

                    concurrent use or user under Article VIII, Section 8.  Based  

                                                                 

                    on the evidence provided at trial, it is more likely than not  

                                                                                         

                    that the permits provided for non-exclusive use of State lands  

                                                                                           

                    and  the  activities  conducted  on  site  did  not  cause  any  

                    significant  impact  or  long-term  harm  to  concurrent  uses.  

                    Given these conclusions, the relief requested by Plaintiffs is  

                                                                                         

                    DENIED and judgment is entered in favor of Defendant and  

                                                                                         

                    Intervenor.  



                    Nunamta appealed to this court.   



                                                              -17-                                                        7011
  


----------------------- Page 18-----------------------

III.     ISSUES ON APPEAL  



                  Nunamta has organized its arguments under four main captions as follows:  



                  (1)      "The superior court incorrectly determined that MLUPs and TWUPs  



were functionally revocable and did not constitute a disposal";  



                                                             

                  (2)      "The extensive land and water uses were of sufficient magnitude to  



trigger safeguards of Article VIII, sections 1, 2, 3, 4, 8, 10, 13 and 17";  



                  (3)      "The State failed to undertake the public-interest analysis required  



by Article VIII prior to issuing the MLUPs and TWUPs"; and  



                  (4)      "The  superior  court  improperly  excluded  evidence  of  economic  



impacts and cumulative impacts, and failed to make findings on Mineral Closing Order  



393 and Leasehold Location Order #1."  



                  The State raises two points in its cross-appeal claiming:  



                                                                                                    

                  (1)      "The superior court should not have allowed Nunamta to litigate two  



separate cases challenging Pebble's permits"; and  



                                                                                                          

                  (2)      "The Court should not review specific permitting decisions or weigh  



in on the general quality of DNR's permitting and enforcement."  



IV.      DISCUSSION  



         A.       Issues Addressed  



                                                           

                  This is a case about process.  Before issuing permits, did the State have a  



                                                                         

duty under the constitution to give notice and did it have a duty to consider potential  



consequences  of  the  permitted  activity?    The  relevant  time  period  raised  by  these  



                                   

questions is prospective.  They are not answered by an after-the-fact inquiry in which a  



           

private party is tasked with the burden of proving that substantial environmental damage  



                                                                                       

has occurred.  The State must know how it should act before it acts.  Similarly, to the  



extent that the answer to these questions turns on an assessment of the environmental  



impacts of permitted activities, the assessment must be made prospectively based on  



                                                       -18-                                                   7011
  


----------------------- Page 19-----------------------

known and reasonably possible consequences.  Further, if the duties to give notice and  

                                                                      



consider  potential  consequences  exist,  they  are  not  discharged  by  the  apparent  



                                                                                          

harmlessness of what later takes place; and, if the duties do not exist, they are not created  



by subsequent acts causing environmental harm.  The duties asserted are intended to  



facilitate   public   involvement   and   informed   decision   making,   and   to   minimize  



                                                 

environmental harm and damage to conflicting users.  These purposes are not served by  



                                                                                                8  

a retrospective examination of the nature of the permitted activity.    



                    The  central  issue  as  framed  by  the  superior  court  was  an  as-applied  



challenge to the constitutionality of a statute; from the trial court's perspective, some  



                                        9  

factual context was needed.   But this was not an environmental tort case.  We consider  



                                                                                  

the issues presented here to be primarily ones of law; the tests for functional revocability  



                                                                         

require consideration of the future, not a detailed assessment of environmental harm to  



       10  

date.      While environmental harm resulting from past exploration activities would be  



                                                                         

relevant  to  the  question  of  whether  present  or  future  permits  are  not  functionally  



revocable, the absence of present harm would not necessarily mean that the permits are  



functionally  revocable.    The  position  taken  by  the  State  and  PLP  at  the  summary  



                                                                                   

judgment level was that the dispositive issues in this case could be resolved as questions  



of law.  We agree, as shown by our resolution of this case, and it is to be hoped that  



          8        As we observed in  Trustees for Alaska v. State, Department of Natural  



Resources , 865 P.2d 745, 750 n.7 (Alaska 1993), a best interest determination "must take  

                                                                                           

place before the lease decision is made, not as an after-the-fact exercise."  



          9        Kyle S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. ,  



309 P.3d 1262, 1268 (Alaska 2013) (citation omitted).  



          10       A similar situation arose in Sullivan v. Resisting Environmental Destruction  



on  Indigenous  Lands  (REDOIL),  where  the  superior  court  considered  an  as-applied  

challenge to a constitutional question that we addressed in broader terms.  311 P.3d 625,  

627, 633 (Alaska 2013).  

                                                            -19-                                                      7011
  


----------------------- Page 20-----------------------

future cases involving process issues will be resolved on motion practice, thus avoiding  



the expense of a lengthy trial.  



                                                                                                                   

                    All the permits that were challenged in this case have expired.  As to them,  



                   

this case is moot.  A suit challenging the lawfulness of a government-issued permit is  

                                                                     11  It is not clear from the record that PLP  

                                                                          

technically moot once the permit has expired.  



is conducting or intends to conduct similar exploration activities in the future.  But still  

                                                                                    



pending  are  proceedings  in  which  the  State  and  PLP  are  seeking  large  awards  of  



attorney's   fees   and   costs.      Since   these   awards   depend   on   a   prevailing   party  



determination, this case remains a live controversy for the purpose of determining which  



                                                                                                 

party prevailed.   Mootness on the merits notwithstanding, our determination that the  



                                                                                                                        

MLUPs were functionally irrevocable may serve as a useful precedent to DNR when it  



                           

is faced with the question of whether to give prior public notice before issuing permits  



in future similar cases.  



                                                                    

                    A second important question is potentially presented.  As expressed by the  



                                                                      

superior court in the concluding paragraph of its decision, did the Constitution require  



                                                                                           

DNR to "conduct a best interest finding" before issuing the permits, even if a statute or  



                                                                                 

regulation did not?  The superior court answered this question in the negative, but only  



                                                                                         

because it concluded that the permits were not disposals of an interest in land.  This  



conclusion must be vacated based on our holding that the MLUPs were disposals of an  



interest  in  land.    The  parties  have  briefed  the  impact  that  Sullivan  v.  Resisting  

                                                                                          12 decided by this court after  

Environmental Destruction on Indigenous Lands (REDOIL),  



the present case was appealed, may have on this issue.  In REDOIL we held that while  

                                                                                    



article VIII does not require written best interest findings, it does require some form of  

                                                                                                   



          11        See Alaska Cmty. Action on Toxics v. Hartig, 321 P.3d 360, 366 (Alaska   



2014).  



          12        311 P.3d at 625.   



                                                              -20-                                                         7011
  


----------------------- Page 21-----------------------

continuing assessment of factors relevant to the public interest during the course of a  



natural  resources  project,  particularly  when  a  permit  authorizing  future  activities  is  

                                                                       



                     13  

contemplated.            Given our resolution of the present case, we need not resolve whether  



                                                                                                           

and how REDOIL should be applied to the issuance of permits like those involved in the  



present case.   



                                                                           

                    We do not address Nunamta's other arguments for they raise issues as to  



                                                                                                                 

the validity of permits that have expired, and no good purpose would be served  by  



deciding them.   



                    We address the issues raised in the State's cross-appeal, for they raise a  



potential procedural bar to Nunamta's lawsuit.   



                                                                                                              

                    All the questions reviewed in this appeal are questions of law. The standard  



                                                         

of  review  we  use  in  deciding  them  is  the  non-deferential  "independent  judgment"  



                                                                                

standard  under  which  this  court  adopts  "the  rule  of  law  most  persuasive  in  light  of  

precedent, reason, and policy."14  



          B.	       Cross-Appeal Issues - This Case Is Not Barred By The Doctrine Of  

                                                                                                      

                    Failure To Exhaust Administrative Remedies Or The Rule Prohibiting  

                    Claim Splitting.  



                    The State argues that this appeal should be dismissed because Nunamta  

                                    



should have exhausted its administrative remedies by litigating the issues presented in  

                                                                                               



this  case  in  the  administrative  appeal  rather  than  by  filing  a  separate  declaratory  



                                                                  

judgment action.  The State also argues that by pursuing both the administrative action  



                                                                                                   

and the declaratory judgment action, Nunamta violated the doctrine prohibiting splitting  



a cause of action.  



          13        Id . at 634-37.  



          14        J.P. v. Anchorage Sch. Dist., 260 P.3d 285, 289 (Alaska 2011) (quoting  



Jacob v. State, Dep't of Health & Soc. Servs., Office of Children's Servs. , 177 P.3d 1181,  

                                    

 1184 (Alaska 2008)) (internal quotations marks omitted).  

                                                             -21-	                                                      7011
  


----------------------- Page 22-----------------------

                    The State raised the exhaustion issue twice.  In September 2009 the State  

                                                                                                            



moved to dismiss on grounds that included failure to exhaust.  The State noted that with  

                                             



respect to the 2009 MLUP, Nunamta was pursuing a timely administrative remedy before  



DNR and that Nunamta should not be allowed to short-circuit that proceeding with an  



                                                                                     

original action.  Acknowledging that Nunamta had raised constitutional claims, the State  



                                                          

argued that the administrative remedy would be appropriate in order to supply a factual  



context in which constitutional issues could be decided.  



                                                                                                                 

                    Nunamta opposed on the ground that exhaustion is not required where only  



                      

constitutional issues are raised.  It also argued that exhaustion was not required because  



                                                                                      

DNR's appeal process was dysfunctional and exhaustion would be futile given DNR's  



inaction in the administrative appeal and its evident partiality.  



                                                                                                                

                    The  superior  court,  Judge  Craig  Stowers  presiding,  denied  the  State's  



             

motion,  ruling  that  forcing  this  case  into  an  agency  forum  would  probably  not  



"appreciably advance the issues in the case, especially in light of the fact that both the  



state  and  the  plaintiffs  are  arguing  that  these  are  essentially  pure  questions  of  



                            

constitutional law in some sense or another."  The court also observed, "I don't see that  



                                                                                     

the facts are necessarily inextricably intertwined with the constitutional law principles."  



                                                                                                                         

The court also stated that in view of the full briefing on the issues, "I'm not sure why I  



couldn't rule on them as a matter of law."  



                    After the case was reassigned and Judge Aarseth ruled on the appellee's  



motions for summary judgment, both PLP and the State again moved to dismiss the case  



                                                                                                              

on failure to exhaust grounds.  As an alternative to dismissal, PLP asked for a remand  

                                                                                         15  The State also asked for  

                                                                                             

to DNR so it could conduct any needed evidentiary hearing. 



          15        PLP stated:  



                                                                         

                              Rather than an unwieldy trial where this Court is asked  

                                                                                                            (continued...)  

                                                             -22-                                                        7011
  


----------------------- Page 23-----------------------

an alternative to dismissal, seeking an order converting the case to an administrative  



appeal.  The State's theory was that because, under the court's order on the summary  



judgment  motions,  the  propriety  of  DNR's  issuance  of  the  permits  was  at  issue,  



                                

Nunamta's claim was functionally an administrative appeal and it should be considered  

                                                                  16 the State argued, "When a court could  

                                                                           

as such.  Citing Yost v. State, Division of Corps.,  



not grant the relief requested without reversing the prior agency determination, the claim  

                                                                                        



should be treated as an administrative appeal."  The trial court denied the motions in  

                



October 2010.  The court acknowledged that "an administrative record would likely  



                                                                        

make the fact-finding process more efficient" but concluded that "the administrative  



process is not necessary and would unnecessarily delay a decision in this case."  



                   Generally, a party who wishes to challenge action by an administrative  



                                                                                                                      17  

                                                                                     

agency must do so using available administrative procedures before filing suit in court. 



The doctrine of exhaustion of remedies is a salutary one whose basic purpose "is to allow  

                                                                             



          15(...continued)  



                   to  make  independent  evaluations  on  a  myriad  of  highly  

                   technical areas, all of which are beyond the typical realm of  

                                                                                 

                   the    judiciary,       the    Court      should      first    allow      for    a  

                   comprehensive agency record to be developed by the agency  

                   that has the technical knowledge and expertise to address this  

                                                                                       

                   many  highly  convoluted  issues.    The  option  is  almost  

                   certainly a trial of much longer and larger proportions than  

                   presently contemplated, on numerous issues for which there  

                   are no established legal standards or other guideposts for the  

                   Court.  A better approach would be to allow the agency to  

                   make[] its factual record, and then, if necessary, the case can  

                   come  back  up  to  this  Court  on  review  of  the  governing  

                   constitutional law.  



          16       234 P.3d 1264 (Alaska 2010).  



          17       Ben Lomond, Inc. v. Municipality of Anchorage , 761 P.2d 119, 121-22  



(Alaska 1988).  

                                                         -23-                                                    7011
  


----------------------- Page 24-----------------------

an administrative agency to perform functions within its special competence-to make  

                                                                            



a factual record, to apply its expertise, and to correct its own errors so as to moot judicial  



                         18  

controversies."                But  when  a  case  raises  solely  constitutional  issues  exhaustion  is  

                                    19  However, even then exhaustion may be ordered so that a court   

                                         

generally not required.  

will "have a factual context within which to review a case."20  The doctrine of exhaustion  

                                

is not a strict jurisdictional rule; rather it is a rule of sound judicial administration.21  

                                                                                        



"Whether a court will require exhaustion of remedies turns on an assessment of the  

                                                                           



benefits obtained through affording an agency an opportunity to review the particular  

                                                                                                                      

action in dispute."22  



                     When Judge Stowers denied the State's first motion to dismiss based on  



exhaustion  grounds,  he  did  so  because  the  issues  seemed  to  be  pure  questions  of  



constitutional law.  In light of the constitutional law exception to the exhaustion doctrine,  

                                                                                                   

this ruling was not an abuse of discretion.23  

                                                                        



                     With  respect  to  the  second  round  of  motions  to  dismiss  on  exhaustion  

                                                                    



grounds, we think that the motions were properly denied, though not necessarily for the  

                                      



reasons stated by the court.  In our view the dispositive questions presented remained  



           18         Van Hyning v. Univ. of Alaska, 621 P.2d 1354, 1355-56   (Alaska 1981)  



(quoting Parisi v. Davidson , 405 U.S. 34, 37 (1972)) (internal quotation marks omitted).  



           19        See Ben Lomond, Inc., 761 P.2d at 122.   



           20        Id .  



           21        Id .  at   121 (citing State, Dep't of Labor v. Univ. of Alaska, 664 P.2d 575,  



581 (Alaska 1983)).  



           22        Id.    



           23        See  Eufemio  v.  Kodiak  Island  Hosp.,  827  P.2d  95,  98  (Alaska  1992)  



(citation omitted) (stating that superior court has discretion to require exhaustion).   

                                                                  -24-                                                             7011
  


----------------------- Page 25-----------------------

relatively discrete questions of constitutional law that would fall under the exception for  



such questions.   



                   Further,  outright  dismissal  for  failure  to  exhaust  would  not  have  been  



                                                                                                                     

appropriate given that at the time of the second round of motions Nunamta still had an  



                                                               

active administrative proceeding pending.  It could have been appropriate to take either  



alternative course suggested by the appellees, but since Nunamta had in no sense slept  



on its rights and all parties were aware of its claims, outright dismissal would have been  



unwarranted.  



                                                                                                     

                   We turn now to the State's claim splitting argument.   "The rule against  



                                                        

claim splitting provides that all claims arising out of a single transaction must be brought  



in a single suit, and those that are not become extinguished by the judgment in the suit  

                                                               24   We conclude that this rule does not apply  

in which some of the claims were brought."                                             



here for a number of reasons.   



                             

                   First,  DNR's  decision  was  based  on  standing  grounds,  although  DNR  



                                                               

indicated that it would deny the appeal on the merits as well.  The superior court ruled  



                                                                                   

that DNR erred in relying on the alleged lack of standing but that DNR's decision could  



                                                                                                           

be affirmed on the merits.  That decision was appealed to this court, and we ultimately  



                                                    

dismissed the appeal as moot.  But our decision was based on the implicit premise that  



not only was the case moot because the permit in question had expired, it was also moot  



because any underlying questions of importance could be determined in the present case.  



                                   

Given the apparent role of the present case in the ultimate resolution of the administrative  



appeal, that resolution cannot have a preclusive effect on this case.  



                                                               

                   In addition, DNR is a forum of limited jurisdiction that lacks authority to  



                                                                                           

issue declaratory relief.  The rule prohibiting splitting claims does not apply to forums  



          24       Robertson v. Am. Mech., Inc., 54 P.3d 777, 780 (Alaska 2002) (citations  



omitted) (internal quotation marks omitted).  

                                                            -25-                                                          7011  


----------------------- Page 26-----------------------

                                  

of limited jurisdiction that lack the authority to grant all the forms of relief a plaintiff  



             25  

requests.         



                   Finally,  the  rule  prohibiting  claim  splitting  would  not  apply  to  those  

                                                                



appellants  -  Willson,  Fischer,  and  Hammond  -  who  were  not  parties  to  the  

                                                         



administrative appeal.   



          C.       The MLUPs Were Disposals Of An Interest In Land.  



                   We now address Nunamta's argument that the MLUPs were disposals of  



an interest in land that come within the protection of the public notice clause of article  

                                                                                              



VIII, section 10 of the Alaska Constitution.  We do not discuss TWUPs at this point  

         



because they do not lend themselves to the same analysis as MLUPs.  We also focus only  



on the 2009 MLUP because the details of this permit are clearly in the record and the  



                                                                                                  

activities allowed under this permit appear to be representative of the activities under  



MLUPs issued for the period 2002 to 2008.  



                                                                                    

                   Nunamta argues in general that the MLUPs were disposals of interests in  



                                                                                         

land that fall within the protection of article VIII, section 10.  It argues that under either  



                                                                                       

of  the  tests  for  functional  irrevocability  adopted  by  this  court  in  Northern  Alaska  



          25       The Restatement (Second) of Judgments  26(1)(c) (1982) expresses the  



exception in this way:  



                             (c)  The plaintiff was unable to rely on a certain theory  

                   of the case or to seek a certain remedy or form of relief in the  

                                                                               

                   first action because of the limitations on the subject matter  

                   jurisdiction of the courts or restrictions on their authority to  

                   entertain multiple theories or demands for multiple remedies  

                   or forms of relief in a single action, and the plaintiff desires  

                   in  the  second  action  to  rely  on  that  theory  or  to  seek  that  

                   remedy or form of relief.  

                                                            -26-                                                      7011
  


----------------------- Page 27-----------------------

                                                                                                   26 

Environmental  Center  v.  State,  Department  of  Natural  Resources ,    the  MLUPs  are  



functionally  irrevocable  and  therefore  are  easements  rather  than  licenses  and  thus  



interests  in  land.    The  State  and  PLP  argue  in  general  that  the  MLUPs  are  neither  



                                                                                                      

interests in land nor disposals and further that the tests for functional irrevocability are  



not satisfied.  



                    We will now summarize the relevant legal authorities.  



                    1.	      Constitutional provisions  



                                                               

                    The constitutional provision most centrally involved in this case is article  



                          

VIII, section 10, the Public Notice Clause, which provides that "[n]o disposals or leases  



                                                                                     

of state lands, or interests therein, shall be made without prior public notice and other  



safeguards of the public  interest as may be prescribed by law."  A number of other  



                                                                                                        

sections of article VIII are relied on by the parties, including section 1, Statement of  



          27	                                           28                                    29 

Policy;       section 2, General Authority;                section 3, Common Use;                section 4, Sustained  



         30                            31	                                         32                                       33 

                                                                                                        

Yield;       section 8, Leases;           section 11, Mineral Rights;                 section 13, Water Rights;  



          26	       2 P.3d 629, 637-39 (Alaska 2000).  



          27	      Art. VIII, 1 - Statement of Policy.  It is the policy of the   



                    State   to   encourage   the   settlement   of   its   land   and   the  

                    development of its resources by making them available for  

                                                                                         

                   maximum use consistent with the public interest.  



          28	      Art.  VIII,  2  -  General  Authority.    The  legislature  shall  



                   provide for the utilization, development, and conservation of  

                                                                                

                    all natural resources belonging to the State, including land  

                    and waters, for the maximum benefit of its people.  



          29       Art. VIII, 3 - Common Use.  Wherever occurring in their  



                   natural  state,  fish,  wildlife,  and  waters  are  reserved  to  the  

                   people for common use.  



          30       Art.  VIII,  4  -  Sustained  Yield.    Fish,  forests,  wildlife,  



                                                                                                           (continued...)  

                                                            -27-	                                                      7011
  


----------------------- Page 28-----------------------

30(...continued)  



          grasslands, and all other replenishable resources belonging to  

                                                                   

          the State shall be utilized, developed, and maintained on the  

                                                                   

          sustained  yield  principle,  subject  to  preferences  among  

          beneficial uses.  



31	       Art. VIII, 8 - Leases.  The legislature may provide for the  



          leasing of, and the issuance of permits for exploration of, any  

                                                                   

          part  of  the  public  domain  or  interest  therein,  subject  to  

          reasonable concurrent uses. Leases and permits shall provide,  

          among other conditions, for payment by the party at fault for  

                                                                                        

          damage  or  injury  arising  from  noncompliance  with  terms  

                                                          

          governing concurrent use, and for forfeiture in the event of  

          breach of conditions.  



32	  

                                                          

          Art. VIII, 11 - Mineral Rights. Discovery and appropriation  

                             

          shall be the basis for establishing a right in those minerals  

          reserved to the State which, upon the date of ratification of  

                                               

          this  constitution  by  the  people  of  Alaska,  were  subject  to  

          location  under  the  federal  mining  laws.  Prior  discovery,  

          location, and filing, as prescribed by law, shall establish a  

          prior right to these minerals and also a prior right to permits,  

                                                                 

          leases,      and     transferable        licenses       for    their     extraction.  

          Continuation          of    these      rights     shall     depend        upon      the  

          performance of annual labor, or the payment of fees, rents, or  

                                                                                

          royalties, or upon other requirements as may be prescribed by  

                             

          law.  Surface  uses  of  land  by  a  mineral  claimant  shall  be  

          limited   to   those   necessary   for   the   extraction   or   basic  

          processing of the mineral deposits, or for both. Discovery and  

          appropriation   shall   initiate   a   right,   subject   to   further  

          requirements of law, to patent of mineral lands if authorized  

                                                                        

          by the State and not prohibited by Congress. The provisions  

                                                                             

          of this section shall apply to all other minerals reserved to the  

                                                                 

          State which by law are declared subject to appropriation.  



33        Art. VIII, 13 - Water Rights.  All surface and subsurface  



                                                                        

          waters reserved to the people for common use, except mineral  

                                                                                                  (continued...)  

                                                   -28-	                                                       7011
  


----------------------- Page 29-----------------------

section 14, Access to Navigable Waters;34 and section 17, Uniform Application.35  



                  2.	       Statutory and regulatory authority for MLUPs  



                                                                                                      36 

                                                                                                          Such uses  

                  Many uses of the public domain are allowed without a permit. 



include  not  only  ordinary  activities  such  as  hiking,  bicycling,  and  travel  by  horse,  

dogsled, or snow machine,37 but also more intrusive ones such as "brushing or cutting  



                                                                                   38 

                                                                                             

a trail less than five feet wide using only hand-held tools"                          and  "hard-rock mineral  



prospecting or mining using light portable field equipment, including a hand-operated  



         33(...continued)  



                  and medicinal waters, are subject to appropriation. Priority of  

                  appropriation shall give prior right. Except for public water  

                  supply, an appropriation of water shall be limited to stated  

                  purposes and subject to preferences among beneficial uses,  

                  concurrent  or  otherwise,  as  prescribed  by  law,  and  to  the  

                                                       

                  general reservation of fish and wildlife.  



         34	      Art. VIII, 14 - Access to Navigable Waters.  Free access to  

                                                                       

                  the navigable or public waters of the State, as defined by the  

                                                                                  

                  legislature,  shall  not  be  denied  any  citizen  of  the  United  

                   States or resident of the State, except that the legislature may  

                                                                            

                  by  general  law  regulate  and  limit  such  access  for  other  

                  beneficial uses or public purposes.  



         35	      Art. VIII, 17 - Uniform Application.  Laws and regulations
  



                  governing the use or disposal of natural resources shall apply
  

                                                                                       

                  equally to all persons similarly situated with reference to the
  

                                      

                  subject  matter  and  purpose  to  be  served  by  the  law  or
  

                  regulation.
  



         36       The  regulation  that  defines  such  uses  is  11  Alaska  Administrative  



Code (AAC) 96.020 (2014).  



         37        11 AAC 96.020(a).  



         38        11 AAC 96.020(a)(2)(A).  



                                                         -29-	                                                  7011
  


----------------------- Page 30-----------------------

                                                                                                    39  

pick, shovel, pan, earth auger, or a backpack power drill or auger."                                    But a permit is     



required for "an activity involving . . . the use of explosives and explosive devices" or  



                  

"drilling to a depth in excess of 300 feet, including exploratory drilling or stratigraphic  

test wells."40  



                                              

                    For uses that are not generally allowed, DNR has regulatory authority to  



                                                                                                        41 

                                                                                                             Such permits  

issue permits for a specified term up to five years unless sooner revoked. 



                                                                                                              

are  MLUPs  and  they  are  authorized  under  Title  11,  chapter  96  of  the  Alaska  



                                42  

Administrative  Code.                  The  stated  purpose  of  chapter  96  "is  to  manage  uses  and  



activities on state public domain land . . . in order to minimize adverse effects on the land  



                           43  

                                                                                                        

and its resources."            The regulation specifically authorizing MLUPs is 11 AAC 96.040,  



which provides in relevant part:  



                    (a)  Issuance of a permit under this chapter is not a disposal  

                    of an interest in land, and does not grant a preference right to  

                    a lease or other disposal.  The permit is revocable for cause  

                    for violation of a permit provision or of this chapter, and is  

                                                                            

                    revocable  at  will  if  the  department  determines  that  the  

                    revocation is in the state's interest.  The permit remains in  

                                         

                    effect  for  the  term  issued,  unless  revoked  sooner.                         The  

                              

                    department will give 30 days' notice before revoking a permit  

                                                       

                    at will.  A revocation for cause is effective immediately.   



                    (b)    Each  permit  issued  is  subject  to  any  provisions  the  

                                     

                    department determines necessary to assure compliance with  

                                                                          

                    this  chapter,  to  minimize  conflicts  with  other  uses,  to  



          39        11 AAC 96.020(a)(3)(F).  



          40        11 AAC 96.010(a)(1)(A) and (D).  



          41        11 AAC 96.040(c).  



          42       Id .  



          43        11 AAC 96.005.  



                                                             -30-                                                       7011
  


----------------------- Page 31-----------------------

                    minimize environmental impacts, or otherwise to be in the  

                    interests of the state.  



                    (c)  . . . [A] permit will be granted for a specified term of up  

                                                       

                    to five years, unless revoked sooner. . . . [T]he permit may be  

                                                                                         

                    extended for any number of consecutive periods, each period  

                                                                                

                    not to exceed one year. . . .  



                                                             . . . .  



                    (f)    A  permit  under  this  chapter  does  not  authorize  the  

                    placement         of    permanent          improvements.                Temporary  

                    improvements authorized by a permit under this chapter must  

                    be removed when the permit expires or is revoked, unless  

                    otherwise specified by the department.  



                    Three  statutory  sections  are  cited  in  this  regulation  as  authority  for  its  



promulgation:           AS      38.05.020,          AS      38.05.035,         and     AS      38.05.850.             Alaska  



Statute  38.05.020(b)(4)  authorizes  the  Commissioner  of  the  Department  of  Natural  



Resources to "exercise the powers and do the acts necessary to carry out the provisions  

                                                                           



and objectives of [chapter 5 of Title 38]," which establishes the Division of Lands within  

                                        



the Department and specifies its functions and responsibilities.   



                    Alaska Statute 38.05.035 defines the powers and duties of the Director of  

                                                                                                           



the Division of Lands.  Pertinent to this case, AS 38.05.035(e) provides:  



                              Upon a written finding that the interests of the state  

                                                      

                    will be best served, the director may, with the consent of the  

                                                                            

                    commissioner, approve contracts for the sale, lease, or other  

                                                                                         

                    disposal of available land, resources, property, or interests in  

                                                    

                    them. . . . The preparation and issuance of the written finding
  

                                                                              

                    by the director are subject to the following:
  



                    . . . .
  



                    (6) . . . however, a written finding is not required before the  

                                                 

                    approval of  



                    . . . .  



                                                             -31-                                                        7011
  


----------------------- Page 32-----------------------

                    (C)   a   permit   or   other   authorization   revocable   by   the  

                    commissioner; [or]  



                    . . . .  



                    (H)      a     permit,       right-of-way,           or     easement          under  

                                                                       

                   AS 38.05.850[.]  



                   Alaska Statute 38.05.850 deals specifically with permits.  It provides in  



part:  



                    (a)      The   director,   without   the   prior   approval   of   the  

                    commissioner,           may       issue     permits,        rights-of-way,          or  

                    easements  on  state  land  for  roads,  trails,  ditches,  field  

                                                   

                    gathering lines or transmission and distribution pipelines not  

                    subject to AS 38.35, telephone or electric transmission and  

                    distribution  lines,  log  storage,  oil  well  drilling  sites  and  

                                                                                 

                   production facilities for the purposes of recovering minerals  

                    from adjacent land under valid lease, and other similar uses  

                                                          

                    or improvements, or revocable, nonexclusive permits for the  

                                                                                       

                   personal or commercial use or removal of resources that the  

                                                                                                 

                    director  has  determined  to  be  of  limited  value.  .  .  .  In  the  

                    granting, suspension, or revocation of a permit or easement  

                    of land, the director shall give preference to that use of the  

                    land that will be of greatest economic benefit to the state and  

                                                            

                   the development of its resources.  



                   Another statutory section, AS 38.05.945, provides for notice to be given by  

                                 



DNR  for  certain  actions.    Subsection  (e)  of  this  section  states  that  "[n]otice  is  not  



required  under  this  section  for  a  permit  or  other  authorization  revocable  by  the  



department."  



                   3.        Mineral locations  



                   Article VIII, section 11 of the Alaska Constitution establishes the basis for  

                                                                                                              



locatable mineral rights. It provides:  "Prior discovery, location, and filing, as prescribed  

                                      



by law, shall establish a prior right to these minerals and also a prior right to permits,  

             



leases, and transferable licenses for their extraction."  



                                                            -32-                                                       7011
  


----------------------- Page 33-----------------------

                                                                                                            

                    Holders of mining claims acquired by discovery, location, and filing do not  



                                                                             

have an automatic right to mine their claims.  To actually extract minerals, they must  



                                              44  

                                                                                                                     

acquire the necessary permits.                     Likewise, they have no automatic right to engage in  



                                                                                               

intensive exploration activities, that is, in activities that are not generally allowed to any  



                                                           45  

                                                                                                                       

member of the public without a permit.                          For intensive exploration activities, a MLUP  



is required.  



                    4.        Why the MLUPs are disposals of an interest in land  



                                                                                                                            

                    The  Public  Notice  Clause  of  the  Alaska  Constitution,  article VIII,  



                                                                                    

section 10, prohibits disposals of interests in state lands without prior public notice.  The  



central question posed by Nunamta's appeal is whether the MLUPs are disposals of  



                          

interests in state land under the Public Notice Clause.  A permit that is revocable at the  

                                                                            46  We recently stated that "[t]he grant  

will of the grantor is generally considered a license. 



of an easement is a conveyance or disposal of an interest in land within the meaning of  

                                                 

[the Public Notice Clause], but the transfer of a license or a permit generally is not."47  



          44        See Beluga Mining Co. v. State, Dep't of Natural Res., 973 P.2d 570, 575  



(Alaska 1999) (noting that company with claim "had no right to mine" but had to seek  

                                                                                                                   

permission to do so).  



          45        See 11 AAC 96.020; supra pp. 29-30.   



          46  

                                                                                                     

                    N. Alaska Envtl. Ctr. v. State, Dep't of Natural Res. , 2 P.3d 629, 635 n.23  

(Alaska 2000) (citations omitted).  



          47  

                                                                   

                    SOP,  Inc.  v.  State,  Dep't  of  Natural  Res.,  Div.  of  Parks  &  Outdoor  

Recreation , 310 P.3d 962, 967 (Alaska 2013) (citing Laverty v. Alaska R.R. Corp. , 13  

P.3d 725, 736 & n.54 (Alaska 2000)); see also J 

                                                                       ON  W.  BRUCE &  JAMES W.  ELY ,  JR .,  THE  

LAW OF EASEMENTS AND LICENSES IN LAND   11:1 (2014) ("Generally a license is not  

viewed as an interest in the land."); see also, e.g., Rau v. Collins , 891 A.2d 1175, 1184  

                                                             

(Md. App. 2006) (noting that license is a personal privilege rather than an interest in the  

                                                                                                    

land);  Wilson  v.  Staats,  751  S.E.2d  747,  751  (W.  Va.  2013)  (noting  that  essential  

                       

characteristic of license is that it does not create an interest in land, only a "personal and  

                                               

                                                                                                               (continued...)  

                                                              -33-                                                         7011
  


----------------------- Page 34-----------------------

                                                                                          

Nonetheless, whether a transfer may be characterized  as a license is not necessarily  



determinative of a contention that the Public Notice Clause applies, and we hold here,  



                                                                                      

consistent with Northern Alaska , that licenses that are functionally irrevocable under the  



                                       48  

                                                                                                                           

tests set out in that case                 are interests in land requiring prior public notice under the  



                                                                  

Public Notice Clause.  We further hold that the MLUPs in this case are functionally  



                   49  

                                                                                                    

irrevocable.              We  so  conclude  because  their  revocation  or  non-renewal  would  



                      

substantially destroy PLP's investment of hundreds of millions of dollars and would  



                                                                    

leave in place large-scale and long-lasting changes to the land which  cannot be removed  



                                                                                                                         

without  significant  damage  to  it,  and  because  the  State  has  recognized  the  public  



                                                                                                            

importance of allowing PLP's exploratory activities to proceed as a necessary step in the  



development of a mine.  



           47(...continued)  



revocable privilege").  But see RESTATEMENT (FIRST) OF PROPERTY  512 cmt. c (1944);  

4 RICHARD R.  POWELL,  POWELL ON  REAL PROPERTY  34.25 (Michael Allan Wolf ed.,                   

2014) ("So long as it continues, a license derogates from the completeness of the servient                               

owner's  ownership,  and  this  requires   its   recognition  as  an  'interest  in  land.'  ");  8  

THOMPSON  ON   REAL  PROPERTY ,    SECOND  THOMAS  EDITION    64.02(b)  (David  A.  

Thomas, ed. 1998).  Cf. AS 44.88.900(14) (including licenses in "interests in land" for  

                                                                                                                        

Alaska Industrial Development and Export Authority).  



           48        N. Alaska Envtl. Ctr. , 2 P.3d at 637-39.  



           49        We do not decide here that all MLUPs are disposals of interests in State  



land; MLUPs authorize a wide variety of activities, some of which are low-impact and  

                                                                                                 

temporary and are clearly not functionally irrevocable.  Public notice is constitutionally  

                                                                                                    

required only when a MLUP is functionally irrevocable.  Cf. AS 38.05.850(c) (requiring  

                                                  

prior  public  notice  of  easement  or  right-of-way  that  director  determines  is  not  

functionally revocable).  

                                                                  -34-                                                            7011
  


----------------------- Page 35-----------------------

                    In  Northern  Alaska ,  we  adopted  from  the  D.C.  Circuit  two  tests  of  

                                    50  We used these tests to assess whether a right-of-way that was  

functional irrevocability.                                                         



revocable on its face was truly revocable and thus exempt from the best interest finding  

                                                                          

                                                                                      

of the Alaska Land Act.51   The first test as we described it in Northern Alaska "focuses  

                                       

on the likelihood of revocation as opposed to the mere legal right to revoke."52                                          We  

                                                                                                     



explained  that  "where  revocation  would  result  in  the  destruction  of  the  licensee's  

                



sizeable investments" a permit would not be revocable because the reserved right of  

revocation is contradicted by "the reality that the permit is functionally irrevocable."53  



We described the second test as focusing "on whether, upon revocation, the licensee  



could remove the installed structures, or otherwise vacate the land, without permanently  

                                                                                          

                                                                                              54    We  noted  that  in  

damaging  or  destroying  the  property  for  governmental  use."                                          



Wilderness Society the  court found that the permit failed to pass this test because a  

                              



proposed gravel work pad "could not 'be removed without producing permanent and  



deleterious changes in the underlying land.'  The court cited harmful effects with respect  

                                                                                                    

to vegetation, erosion, and the permafrost."55  

                                                                     



                    Both the State and PLP argue that the Northern Alaska /Wilderness Society  

                                                                                         



analysis  as  to  whether  a  permit  is  functionally  irrevocable  should  not  be  applied  to  

                                                                        



determine whether the constitution's Public Notice Clause has been triggered because  



          50       N. Alaska Envtl. Ctr. , 2 P.3d at 638.  



          51       Id . at 637-39.  



          52       Id.  at  638 (quoting  Wilderness Soc'y v. Morton,  479 F.2d 842,  871 (D.C.  



Circ. 1973) (en banc)) (internal quotation marks omitted).   



          53       Id.  



          54       Id .  



          55       Id. (footnote omitted) (quoting  Wilderness Soc'y, 479 F.2d at 874-75).   



                                                             -35-                                                       7011
  


----------------------- Page 36-----------------------

both  Northern  Alaska  and   Wilderness  Society  involved  statutory  and  regulatory  



                                                                                                          

requirements, not constitutional interpretation.  But they offer little or nothing by way  



                                                    

of substantive reasons as to  why  the revocability analysis of those cases should not  



apply.   



                                                                                  

                    Both the Alaska Land Act and the Public Notice Clause concern disposals  



                            56  

                                                                                                                          

of interests in land.           Indeed, the Alaska Land Act was meant to provide guidance as to  



                                                                                                                      57  

                                                                                                                          The  

the type of process to be used when the State disposes of an interest in land. 



functional irrevocability analysis is designed to determine whether permits purporting  



                                                                          

to be revocable at will, and thus akin to licenses, are not truly revocable, and therefore  



                                    58 

                                                                                                                  

are more like easements.                The premise of the analysis is that the substance of an interest  



                                                                                                        59  

rather than its form should control when considering its legal effect.                                      This premise  



surely applies as strongly to effects under constitutional provisions as to those under  



                                                                              

statutes or regulations.  Indeed, in Northern Alaska we decided that we should analyze  



the  permit  there  for  functional  irrevocability  because  article  VIII  of  the  Alaska  



          56        Compare Alaska Const. art. VIII,  10, with AS 38.05.035(e).  



          57        See Alyeska Ski Corp. v. Holdsworth                     , 426 P.2d 1006, 1010-11 (Alaska  



1967) (observing that legislature enacted the Alaska Land Act in accordance with the  

Public Notice Clause).  



          58  

                                                                      

                    See SOP, Inc. v. State, Dep't of Natural Res., Div. of Parks & Outdoor  

Recreation ,  310  P.3d  962,  967-68  (Alaska  2013)  (discussing  difference  between  

easements and licenses).  



          59        Our cases consistently demonstrate that we look at the substance of the  



interest rather than its form in considering whether the Public Notice Clause applies.  For  

                                                                                          

example, in Laverty v. Alaska Railroad Corp. , we decided that what the Railroad called  

                                   

a "license" was in fact an easement, specifically a profit, because it permitted the removal  

                                  

of gravel from the land.   13 P.3d 725, 735-36 (Alaska 2000).  And in SOP, Inc., we  

                                            

decided that permits for ATV use on state park lands were easements because they were  

revocable only for cause and had other easement characteristics.  310 P.3d at 968-69.  

                                                             -36-                                                        7011
  


----------------------- Page 37-----------------------

Constitution  reflects  the  "importance  of  our  land  resources  and  of  the  concomitant  



                                                                                                                                                  60  

                                                                                                                          

necessity for observance of legal safeguards in the disposal or leasing of state lands." 

Article VIII "reflects the framers' recognition" of these concerns.61   Just as they serve as  

                                                                                                                            



a guide to interpreting statutes and regulations, they should also guide the interpretation  

                                                                                  



of a constitutional provision.  



                                                                 

                       Turning to the question of the applicability of the Wilderness Society tests  



                         

to  this  case,  Nunamta  argues  that  under  both  tests,  the  MLUPs  are  functionally  



                                                                                           

irrevocable.    As  to  the  first  -  the  destruction  of  the  licensee's  investment  test  -  



                                                                                                                                

Nunamta points to trial testimony by PLP's vice-president of environment that PLP had  

                                                                                                                      62     According  to  

invested  "$300-$400  million"  dollars  in  exploration  since  2002.       



Nunamta, the superior court incorrectly and inappropriately focused only on "permanent,  



concrete  and  steel  infrastructure"  in  examining  PLP's  investment;  instead  Nunamta  

                                  



asserts "that the size of the investment at risk is enough, in itself, to deter revocation"  

                                                                                                        



because if development is stopped, PLP's investment will have  no value.  Nunamta  

                                                                                                                  



argues that the State is also invested in the continuation of the project, pointing to the  



                                                                                                              

Memorandum of Understanding (MOU) between the State and PLP, under which PLP  



                                                                                                

agreed to reimburse the State for costs associated with, among other things, the State's  



            60         N. Alaska Envtl. Ctr. , 2 P.3d at 638 (quoting Alyeska Ski Corp. , 426 P.2d  



at 1011) (internal quotation marks omitted).  



            61         Alyeska Ski Corp. , 426 P.2d at 1011.  



            62         PLP contends that "Nunamta improperly looks outside the trial record" to           



make these arguments.  Although Nunamta discusses positions taken by the State and  

PLP at earlier phases of the litigation and the evidence submitted by them to support  

these  positions,  Nunamta  also  points  to  trial  testimony  and  exhibits  to  support  its  

           

arguments.  

                                                                       -37-                                                                 7011
  


----------------------- Page 38-----------------------

                                                                      63  

                                                                                 

consideration of PLP's requests for permits.                              By the time of trial, the estimated costs  



                                               

associated with the MOU for the fiscal years 2007 to 2011 totaled more than $2 million;  



the MOU listed a number of state employees whose salaries could be paid in part by  



PLP.  



                     To  further  support  its  argument  that  the  permits  were  functionally  



irrevocable  because  of  potential  loss  of  investment,  Nunamta  cites  arguments  and  



                                                                                   

affidavits submitted by PLP and the State during the preliminary injunction phase of the  



case that contended there would be significant "destruction of the licensee's investments"  



                                                                                                

resulting even from a preliminary injunction.  PLP argued at the preliminary injunction  



                                                                                                   

phase  that  "Pebble's  ability  to  further  this  project,  and  to  realize  a  return  on  its  



                                   

investment, would be impaired by an injunction," claiming that a preliminary injunction  



                                                             

"would have a ripple effect throughout the entire operation, and would cause a major loss  



of jobs and economic activity in Alaska."  



                                               

                     PLP objects to Nunamta's reliance on the affidavits, asserting that only  



                                                                                                         64  

evidence presented at trial can be used in our review of the case.                                           PLP specifically  



           63        The MOU had an initial term of only part of 2004, but it was extended                         



several times.  The MOU appears to contemplate a continuing relationship between the  

State and PLP:  "Specific tasks to be addressed" by the interagency review team included  

"[d]am permitting efforts for any tailings impoundments, water supply reservoirs, etc."  

                                                      

and "provid[ing] a coordinated effort on the State's part in the NEPA process."  



           64  

                                    

                     The case PLP relies on is distinguishable.  In Paula E. v. State, Department  

of Health & Social Services, Office of Children's Services, we held that we would not  

consider unadmitted exhibits in the trial record, including a home study, in our review  

                                                                                             

of the trial court's factual findings.  276 P.3d 422, 430 (Alaska 2012).  We expressed  

concern that parties have no opportunity to respond to exhibits that are not admitted, and  

we concluded that the trial court had not relied on the documents in reaching its decision  

                                                                                                      

in any event.  Id. (citation omitted).  Here the documents in question are affidavits that  

                                                           

were offered by parties opposing Nunamta, cf. Alaska R. Evid. 801(d)(2) (defining as not  

hearsay an admission by a party-opponent), so there is no question of the opposing  

                                                                                                                    

                                                                                                                   (continued...)  

                                                                 -38-                                                           7011
  


----------------------- Page 39-----------------------

                                    

refers to Nunamta's use of the affidavit of Richard Hughes, "an employee of the Alaska  



Department of Commerce, Community and Economic Development" at the time he  



                              65  

                                                                             

signed his affidavit.             Hughes's affidavit detailed  the importance of the exploration  



project and tied investment in exploration to investment in mine development; he attested  



                                

to the importance of mining to the Alaska economy.  The superior court, at the State's  



                                                                                                      

request, ruled before trial that Nunamta could not present evidence about "economic  



                                                               

issues" at trial, including the testimony of an expert in "Natural Resource Economics"  



                                                                                                             

that Nunamta had retained to address the information in Hughes's affidavit.  The superior  



court  narrowed  the  issues  to  be  presented  at  trial  to  include  "any  actual  impact  the  



exploration activities or permit issuance has had."  By removing economic information  



from the trial, the superior court in effect prevented the presentation of evidence on one  



                                                                                              

of the tests of functional revocability - whether the licensee's investment depends on  



                       

the continuing availability of the permit - and thereby took away from Nunamta any  



                                                                            66  

                                                                                Under these circumstances, we  

opportunity to present this type of evidence at trial. 



conclude that Nunamta can properly rely on the affidavits; PLP does not argue that they  

                                                                                                     



          64(...continued)  



parties lacking an opportunity to respond to or challenge the evidence now questioned  

on appeal.  In addition, PLP does not contest the authenticity or veracity of the affidavits.  

We also note that the superior court specifically mentioned one of the affidavits - that  

                                                      

of Richard Hughes - in its oral decision denying a preliminary injunction.  



          65       We  note  there  was  considerable  pretrial  motion  practice  about  the  



possibility of Hughes being a trial witness.  



          66       N.  Alaska  Envtl.  Ctr.  v.  State,  Dep't  of  Natural  Res. ,  2  P.3d  629,  638  



(Alaska 2000) (quoting Wilderness Soc'y v. Morton, 479 F.2d 842, 873 (D.C. Cir. 1973)  

                                                                             

(en banc)).  

                                                            -39-                                                       7011
  


----------------------- Page 40-----------------------

are inaccurate, and the affidavits and arguments from the earlier proceedings provide  

context for application of the destruction of the investment test.67  



                       The State argues that the destruction of sizable investment test only applies         



where the licensee builds improvements on the property, not where the investment is in         



exploration. Noting the inherently speculative nature of mineral prospecting, the State   



contends that  



                                                      

                       [t]he value of the information Pebble collects depends not on  

                                          

                       the permit it was collected under, but on the value of Pebble's  

                                                                                              

                       claims, which in turn depends on a host of other factors like  

                                                                  

                       ore quality, the markets, technology, and, ultimately, whether  

                       Pebble can secure permission to mine.  But the risk that the  

                       stars will not align is Pebble's to bear. . . .  



To  illustrate  its  point,  the  State  quotes  from  a  law  journal  article  on  the  Pebble  



exploration that states "[w]here government approval is required but not assured for a  



                                                                                                                      68  

project, any investment in that project is akin to a business gamble."                                                      



                                                                                         

                       The superior court based its decision that "revocation would not result in  



the  destruction  of  Pebble's  investment"  on  the  lack  of  "permanent  infrastructure  or  



                                                                                                

installments on the land."  Although the superior court acknowledged that "Pebble has  



spent a significant amount of money on exploration and environmental studies," the court  



                                                                     

also  considered  that  the  sole  purpose  of  these  activities  was  "to  collect  intellectual  



                  69 

                                                                                           

property."            It then found that "[e]vacuating the site upon revocation would not damage  



            67         See also Laverty v. Alaska R.R. Corp., 13 P.3d 725, 728 (Alaska 2000)  



(noting railroad's prior statements from legislative audit about nature of agreement).   



            68         Geoffrey Y. Parker et al., Pebble Mine: Fish, Minerals, and Testing the   



Limits of Alaska's "Large Mine Permitting Process , " 25 ALASKA   L.   REV . 1, 49-50  

(2008).  



            69         In support of this conclusion, the superior court cited its earlier findings  



about PLP's exploration activities.  

                                                                       -40-                                                                  7011
  


----------------------- Page 41-----------------------

                                                                         70  

the  scientific  information  Pebble  has  gathered."                          We  found  no  evidence  that  the  



                                                                                                                    

scientific information has value independent of its use to develop the mine, and the  



                                           

superior court cited none; in earlier pleadings PLP asserted that "[t]he primary purpose  



                   

of Pebble's environmental baseline research is to provide the necessary information to  



enable  Pebble  to  make  informed  business  decisions"  about  mine  development  and  



engineering if development proceeded.  



                                                               

                   We agree with Nunamta that the hundreds of millions of dollars invested  



                           

in exploration by PLP, including the money PLP furnishes to the State to pay for the  



permitting process, is the investment that must be considered.  The potential loss of an  



investment of this magnitude could deter DNR from cutting short PLP's exploration  



                                                                                                           

process by revoking or not renewing a permit.  Such an act could signal the end of the  



development and thus make useless the data that PLP had already gathered.   



                                                                                              

                   We do not agree with the State that the destruction of sizeable investments  



                                                                                                          

test only applies to investment in physical improvements, as the superior court evidently  



believed.    A  land  manager  could  easily  be  reluctant  to  revoke  a  permit  if  doing  so  



                                                                       

rendered valueless an investment of hundreds of millions of dollars related to a necessary  



step in a significant economic venture regardless of whether physical improvements were  



created.    The  point  of  the  test  is  that  where  large  sums  have  been  invested,  the  



                                                                          

government is effectively forced to honor the full term of the permit, because revoking  



it prematurely would cause a significant loss.  That is the case here.  



          70        The superior court's record citation to support this statement is a reference  



to page 2 of its Findings of Fact and Conclusions of Law; that page only names some of  

                                                                                           

the parties to the action.  In its written closing argument in the superior court PLP relied  

                                                                                  

on testimony of two of its witnesses to assert that intellectual property was created;  

neither witness testified that the information would have any value independent of the  

project.  In the transcript portion cited by PLP, one witness testified about the lack of  

                                                          

permanent, above-ground structures at the drilling sites; the other testified that mapping  

wetlands was done "for the environmental baseline document."  

                                                            -41-                                                       7011
  


----------------------- Page 42-----------------------

                   Nunamta   also   argues   that   the   perceived   public   importance   of   the  



                                                                                                                  

exploration would deter revocation.  Relying on the MOU Nunamta asserts that some 58  



                                                                                            

State employees have been assigned to work on the project and that PLP will reimburse  



                                                                                

the State at least in part for their work.  Under the MOU an estimated two million dollars  



                                                                        

in billings were budgeted for reimbursement over five years.  Additionally, according to  



Hughes's affidavit, in excess of 610 jobs would be lost if PLP's exploration efforts were  



shut down.  Nunamta also cites Hughes's testimony as demonstrating that the State's  



                                                                                    

perception is that the suspension of the exploration permits would harm the entire mining  



industry in Alaska.  



                   To discount Nunamta's public importance argument the State contends that  



"[t]o  the  extent  that  Pebble  is  important  to  the  public,  it  is  the  mineral  deposits  



themselves and the potential mine that are important, not the exploration authorized by  



                                                                                 

the  MLUPs."          But the  mineral deposits and  potential mine  can  never  be  developed  



                                                                                                               

without the continuing, extensive exploration authorized by the MLUPs. The scope and  



number of the claims have expanded considerably since PLP and its predecessors began  



exploratory drilling under the MLUPs.  



                   We  agree  with  Nunamta  that  the  perceived  public  importance  of  the  



exploration also would deter DNR from cutting short the exploration process.  According  



to  Hughes's  affidavit,  such  an  act  would  result  in  the  loss  of  employment  of  many  



                                                

hundreds of people. In addition, according to Hughes, it would send a negative message  



                                        

to the mining industry that Alaska's regulatory climate is unsettled and that Alaska has  



                                                             

"seemingly capricious regulations."  This message would "deter companies looking for  



new  projects,"  "definitely  impact  exploration  investment,"  and  harm  "the  mining  



industry in Alaska, and the Alaskan economy generally."  



                   The perceived public importance of permitting the exploration of the Pebble  



ore   deposit   is   underscored   by   a   letter   from   the   Governor   of   Alaska   to   the  



                                                           -42-                                                      7011
  


----------------------- Page 43-----------------------

                                                                                                            

U.S. Environmental Protection Agency urging the agency not to invoke a procedure that  



could effectively prohibit development of the Pebble mine "prematurely," that is, without  



                                                            

allowing the mine to advance to the development permitting phase.  In the letter the  



                   

Governor  states:  "There  has  been  tremendous  investment  in  the  area  based  on  the  



                                                               

potential for mineral development.  We cannot fathom the liability and legal challenges  



that  could  accompany  an  unprecedented,  after-the-fact  determination  by  the  federal  

government that mineral development from these State lands is no longer viable."71  



                       We conclude that the first  Wilderness Society test has been satisfied.  It is  



                                                                                      

easy to see how a state land manager could feel tremendous pressure not to revoke or  



                                                                                                                                        

refuse to renew a MLUP thereby imposing a loss of hundreds of millions of dollars in  



exploration  funds  and  hundreds  of  jobs  as  well  as  risking  the  loss  of  the  State's  



                                                   

credibility as a location for future mining projects.  Based on the record, there was a  

"negligible likelihood" that a MLUP would be revoked.72  



                                               

                       With respect to the second Wilderness Society test, Nunamta starts with the  



                                                                                      

language of Northern Alaska describing this test: "[T]he court focuses on whether, upon  



revocation, the licensee could remove the installed structures, or otherwise vacate the  



                                                                                                                                                     73  

                                                                                                               

land, without permanently damaging or destroying the property for governmental use." 



Nunamta  argues  that  the  remnant  bore  holes  and  their  plugs  are  concrete  and  steel  



            71         Letter  of  September   21,   2010  from  Governor  Sean  Parnell  to  The  



Honorable Lisa P. Jackson, Administrator, U.S. Environmental Protection Agency.                                                                  The  

Governor also notes that 70 percent of area residents are Alaska Native and 17 percent   

fall  below  the  poverty  level,  and  requests  that  the  EPA  "take  into  account  that  a  

. . . decision to preclude mining in this economically depressed region would abruptly  

                                                                                                                             

and conclusively deny area residents any opportunity to avail themselves of the benefits  

                                                                                                   

they might seek from responsible mining."  



            72         See N. Alaska Envtl. Ctr. v. State, Dep't of Natural Res., 2 P.3d 629, 639  



(Alaska 2000) (holding that permit had "negligible likelihood of revocation").  



            73         Id . at 638.  



                                                                        -43-                                                                   7011
  


----------------------- Page 44-----------------------

structures that cannot be removed without producing permanent harm.  Nunamta also  



                                                       

points to the "enormous quantity of waste materials" that PLP is "as a practical matter,  



allowed to store in perpetuity on State lands." These materials include the cuttings from  



the bore hole drillings and "hundreds of thousands of pounds of drilling muds generated  



                                                                                                   

in the drilling process."  Nunamta claims that "there is no way to return the land to its  



                  

previously undisturbed condition upon revocation."  Nunamta argues that if PLP had  



applied for permission to operate a landfill to bury "this quantity of concrete, steel, mud,  



                                                                                   

cuttings and debris on state land" Article VIII would clearly demand "more than the  



closed-door issuance of a 'temporary' permit."   



                    By contrast, the State characterizes the second  Wilderness Society test as  



                                                                             

the "government use test."  The State argues that this test is satisfied as long as "the  



                                                                                          

structures which the licensee proposes to erect are capable of being removed," and "upon  



                                                                                                               74  

                                                                                                                   The State  

revocation the land may be left in suitable condition for Government use." 



                                                                                 

disagrees with Nunamta that the plugs and casings left underground in the drill holes are  



                                                         

structures under this test, arguing that they do not affect the character of the land or leave  



                                                             

it unsuitable for any use.  The State also notes that the plugs and casings protect against  



environmental  damage  and  views  the  second  test  as  requiring  "dramatic  and  long- 



standing        intentional       transformation           of    the     landscape,"         arguing       that    no     such  



transformation was contemplated by the permits here involved.  



                    We agree with Nunamta that the bore holes plugged with concrete and  



                               

encased by steel are installed structures for the purposes of the second Wilderness Society  



                                                            

test.  These columns will remain in the land.  They are not in a practical sense capable  



                                                                                

of being removed, and it is undisputed that removing them would increase the potential  



                                       

for environmental harm. In our view the buried sumps containing drilling mud and other  



          74        The State quotes  Wilderness Society v. Morton, 479 F.2d 842, 872 (D.C.  



                                 

Cir. 1973) (en banc), for this premise.  

                                                             -44-                                                            7011  


----------------------- Page 45-----------------------

drilling wastes should also be considered under the second test.  The waste disposal  



                                             

sumps are not structures, but they are lasting alterations to the land.  The landfill analogy  



                                                 

used  by  Nunamta  seems  apt,  for  the  sumps,  like  landfills,  are  used  to  dispose  of  



                                                                                                     

potentially toxic material.  The sumps of course could be dug up and the waste material  



                                                                      

removed, but only at great cost.  The record does not reflect whether this would create  



additional environmental risks, but it seems clear that this will never occur.   



                                                                                      

                     The State's characterization of the second test as "the government use test"  



                        

is flawed.  The State focuses only on the final part of the test and ignores the question of  



                                                                    75  

                                                                        In the expression of this test, the question  

whether installed structures can be removed. 



of  suitability  for  government  use  is  not  reached  unless  the  proposed  structures  are  



                                                                                                          

capable of being removed.  The Wilderness Society court found that the second test was  



                                 

best represented by the Attorney General's opinion concerning a proposal to grant a  



                                                                               

revocable permit to a railroad to lay tracks across a military reservation.  This opinion  



stated, as quoted in Wilderness Society:  



                                                                    

                     If  the  permit  is  revocable  at  will  by  its  terms,  and  if  the  

                                                                                                   

                     structures which the licensee proposes to erect are capable of  

                     being removed in case of revocation, and if upon revocation  

                                                                                    

                     the land may be left in suitable condition for government use,  

                                                                                                 

                     the fact that the licensee expects that the United States may  

                                                                  

                     not soon find it to its interest to revoke the license has no real  

                                                                   [76] 

                     bearing on the legal situation.  



                                           

Thus, under the test, where the structures are not capable of being removed, the question  



of suitability for government use does not arise.   



          75         The superior court likewise did not consider removal of the materials used             



to plug the boreholes.              In its findings, it said that "everything at the site, except for the  

bore hole drill casings and the material used to plug the holes, can be removed within a                    

matter of weeks."  



          76         Wilderness Soc'y, 479 F.2d at 872 (emphasis added).  



                                                                -45-                                                          7011
  


----------------------- Page 46-----------------------

                    This reading of the test thus emphasizes the importance of the continuing  

                                                                                         



physical presence on the land of the structures constructed by the licensee.  But it would  

                                              



be overly literal to suggest that where the structures cannot, or will not, be removed, their  

                                                                              



impact, or lack of impact, is irrelevant.  In Northern Alaska we stated that the second  

                                                                                                                    



Wilderness Society test required an analysis of "the long-term and harmful character of  

                                                                                                   77  In applying this test  

the environmental impact" resulting from the licensee's activities.                                                       



in  Northern  Alaska  we  noted  that  the  project  there  presented  "the  likelihood  of  

                                                                                                       

irreversible ecological changes."78  But we also used terms that encompassed less certain  



potential harms.  We cited research that indicated that "vegetative clearing may result in  

                                                                                                                         



                                                                                                                     79  

the permanent thermal degradation of the sensitive Tanana Flats permafrost."                                              And in  

                                                                                                   



                                                                                                                             80  

our  conclusion,  we  referred  to  "potential   long-term  environmental  damage"                                               as  



supporting our finding of functional irrevocability.   



                    On the record of the present case it cannot be said that PLP's exploration  

                                                                                       



                                                                                            81  

activities  will  likely  cause  irreversible  ecological  changes.                               However,  there  is  the  

                                                                                                                   



potential for environmental damage primarily through pollution of groundwater by the  

                                                                                                                            



toxic waste that has been disposed of on the land and by acid rock drainage.  In our view,  

                                                                                                    



this potential plus the continuing physical presence of the hundreds of concrete and steel  

                                                                                                          



          77        N. Alaska Envtl. Ctr. , 2 P.3d at 638.  



          78        Id. at 639.  



          79        Id . (emphasis added).   



          80        Id. (emphasis added).  



          81        See  supra pp. 15-17.  



                                                               -46-                                                         7011
  


----------------------- Page 47-----------------------

encased bore holes suffice to justify a conclusion that the second Wilderness Society test  

also points toward functional irrevocability.82  



                                                   

                   We conclude that the MLUPs are not functionally revocable in light of the  



                                                                               

investment in prior exploration activities that would be lost if they were revoked, and the  



strong reasons the State has for not pretermitting the Pebble exploration process.  We  



                                                                 

also believe that the concrete plugs and steel casings in the bore holes represent a lasting  



occupancy of state lands that is inconsistent with the concept of revocability.  Further,  



                                                                  

the hundreds of sumps containing toxic waste and chemically reactive material represent  



a continuing potential source of environmental harm that is also inconsistent with the  



concept of revocability.  



          D.       The TWUPs Are Not Disposals Of An Interest In Land.  



                   In  the  case  of  TWUPs,  DNR  did  not  issue  just  one  permit  for  a  given  



exploratory  period.    Rather,  it  issued  PLP  nine  TWUPs  in  January  2007,  and  two  



                                                             

additional TWUPs in May 2009.  Most of the TWUPs each covered five separate water  



sources.  Overall the nine 2007 TWUPs permitted taking water from 21 stream sources,  



          82       The two Wilderness Society tests are independent, and as used in that case,  



either would suffice to show functional irrevocability.  In Northern Alaska we held that  

                                                                                                            

revocability should be assessed "under a hybrid approach" using both tests as factors for  

                                                            

analysis.    But  we  did  not  state  that  both  tests  must  be  satisfied  for  functional  

irrevocability to be found.  Logically that should not be necessary.  While the tests will  

often be complementary, a compelling case for functional irrevocability may be made  

when only one test is satisfied.  For example, to draw on a case relied on by  Wilderness  

Society, a chapel built on government land under a revocable permit could be removed  

                                                        

without environmental damage but the loss of the licensee's investment would deter  

revocation  to  such  an  extent  that  the  permit  should  be  considered  functionally  

irrevocable. In such a case, as the Attorney General stated in the West Point Chapel case  

                    

on which  Wilderness Society relied: "[T]he government would find itself embarrassed  

                                                                                  

either to endure a perpetuity of right in the license or exercise an invidious power."  

Wilderness Soc'y, 479 F.2d at 871 (quoting Erection of Catholic Chapel at West Point,  

                                  

21 Op. Att'y Gen. 537 (1897)).   

                                                           -47-                                                      7011
  


----------------------- Page 48-----------------------

 18 pond sources, and five bore holes.  Each TWUP covered a five-year period.                                                      The  



revocation clause in each TWUP provided: "Pursuant to 11 AAC 93.210(b), authorized             



temporary  water  use  is  subject  to  amendment,  modification,  or  revocation  by  the  



Department of Natural Resources if the  Department of Natural Resources determines  



that  amendment,  modification  or  revocation  is  necessary  to  supply  water  to  lawful  



appropriators of record or to protect the public interest."   Because this language is  



                                                                                             

similar to the "at will" clause in the regulations governing MLUPs, we assume that this  



                                                                                    83  

language  qualifies  as  an  at  will  revocation  clause.                                The  TWUPs  are  specifically  



ancillary to the exploration project; they specify that the water will be used in support of  

                                                                                                         



exploration drilling operations.  



                                                                                          

                     Any particular TWUP could be revoked for a number of reasons that would  



                                                                                                                        

not  threaten  PLP's  overall  exploration  program.    Thus  a  land  manager  would  not  



inevitably  feel  pressured  not  to  revoke  a  TWUP  by  the  possibility  of  imposing  an  



                                                                                                                       

enormous financial loss on PLP or by the possibility of causing the loss of hundreds of  



                                                                                                                   

jobs or threatening the State's credibility with potential mining investors. Further, unlike  



                                                                            

in the case of MLUPs, there are no permanent structures or other features left in or on  



                                   

the land with respect to the water use permits.  For these reasons, we conclude that the  



TWUPs do not meet the  Wilderness Society tests for functional irrevocability.   



V.         CONCLUSION  



                     We have held that the judgment should be reversed because the MLUPs are  



                     

disposals of an interest in land requiring prior public notice.  On remand, therefore, the  



                                                                                                                        

superior court should enter a declaratory judgment reflecting this view.  We leave to the  



superior court the question of whether any other action is appropriate.  



           83        See 11 AAC 96.040(a) (2014), set out supra p. 30.  



                                                                 -48-                                                                7011  


----------------------- Page 49-----------------------

                  The  judgment  of  the  superior  court  is  REVERSED  and  this  case  is  



REMANDED for entry of a declaratory judgment in accordance with this opinion and                        



for such further action as may be appropriate.  



                                                           -49-                                                 7011
  


----------------------- Page 50-----------------------

WINFREE, Justice, concurring.  



                       I  agree  with  the  court's  conclusion  that  the  facially  short-term  and  



revocable  land  use  permits  issued  by  the  State  of  Alaska,  Department  of  Natural  



                    

Resources (DNR) to Pebble Limited Partnership (Pebble) are disposals of land requiring  



                                                                             

public notice under article VIII, section 10 of the Alaska Constitution.  But reaching that  



conclusion  by  analyzing  whether  facially  short-term  and  revocable  permits  are,  



functionally, long term and irrevocable seems ill-founded and far more complicated than  



                  1  

necessary.     This  analysis  seems  likely  to  lead  to  extensive  litigation  over  mineral  



                                                                                                                        

exploration permits, as was the case here, despite the court's suggestion that the analysis  



                  

generally should be amenable to summary resolution.  It is difficult to see how an as- 



                                          

applied challenge to the constitutionality of the State's issuance of a mineral exploration  



permit can be resolved in summary fashion.  



                                                                                                                              

                       A simpler analysis can be accomplished without relying on the permit's  



                                                    

facial  or  functional  temporal  quality  or  revocability,  or  on  the  necessarily  arbitrary  



            1          The court relies on the functional irrevocability tests adopted in                                         Northern  



Alaska Environmental Center v. State, Department of Natural Resources                                                   ; in that case we       

concluded a statutory best interest finding was required because the permit at issue was     

functionally irrevocable.  2 P.3d 629, 637-39 (Alaska 2000).  When adopting the tests  

in Northern Alaska we relied on a federal case, Wilderness Society v. Morton, where the  

                                                       

D.C. Circuit concluded that a special land use permit issued in relation to Trans-Alaska  

Pipeline construction was long term and functionally irrevocable. 479 F.2d 842, 870-75  

                                                                                                                

(D.C.  Cir.  1973).    In Northern  Alaska ,  noting  the  "broad  constitutional  mandate  to  

                                                                                                                               

protect the public interest in dispositions of state land" and applying rules of statutory  

                                                                                                                      

interpretation, we were able to determine that a permit was a disposal of an interest in  

land before addressing functional irrevocability.  2 P.3d at 634-37 (construing interest  

in land to include permits and licenses and construing disposals to include "property  

interests of limited duration"). We adopted and applied the functional irrevocability tests  

                                                           

only because we were faced with the assertion that the permit qualified for an exception  

to  the  best  interest  finding  required  under  the  Alaska  Land  Act.    Id.  at  637-39;  see  

AS 38.05.035(e)(6)(C) (exempting "a permit or other authorization revocable by the  

commissioner" from written best interest finding requirement).  

                                                                      -50-                                                               7011
  


----------------------- Page 51-----------------------

conclusion that a particular mining project has become such an unstoppable financial  



                                                  

engine it likely would overcome the will of State employees charged with determining  



                                                         

whether issuing or revoking a permit is in the State's best interest.  This analysis relies  



                                                                                             

on a mineral exploration permit's appurtenance to an existing mining claim, a property  



interest  acquired  from  the  State  through  article  VIII,  section  11  of  the  Alaska  



Constitution:  



                    Discovery         and      appropriation          shall     be    the     basis     for  

                                                                                                  

                    establishing   a   right   in   those   minerals   reserved   to   the  

                                                                           

                    State . . . .  Prior discovery, location, and filing, as prescribed  

                                                                            

                    by law, shall establish a prior right to these minerals and also  

                    a prior right to permits, leases, and transferable licenses for  

                    their extraction.  Continuation of these rights shall depend  

                    upon the performance of annual labor, or the payment of fees,  

                             

                    rents,  or  royalties,  or  upon  other  requirements  as  may  be  

                    prescribed  by  law.    Surface  uses  of  land  by  a  mineral  

                    claimant shall be limited to those necessary for the extraction  

                                                                     

                    or basic processing of the mineral deposits, or for both.  



                    Alaska Statute 38.05.195(a) further explains that "[r]ights to deposits of  



minerals  .  .  .  in  or  on  state  land  that  is  open  to  claim  staking  may  be  acquired  by  



discovery, location, and recording . . . . The locator has the exclusive right of possession  

                                                                                                              

and extraction of the minerals . . . lying within the boundaries of the claim."2 

                                                                                                                The locator  



                                                           

also has the right to "use the surface of the location only to the extent necessary for the  



                                                                                                       3  

                                                                                                              

prospecting for, extraction of, or basic processing of mineral deposits."                                A mining claim  



                     

is a property  interest in State land, although it does not include an absolute right to  



          2         See also Welcome v. Jennings, 780 P.2d 1039, 1042 (Alaska 1989) ("A  



person acquires the exclusive right to possess and extract minerals on state land by  

discovery, location, and recording."); id. ("Possession of a mining claim is evidenced by  

                                                                                                              

satisfying   statutory   requirements   regarding   location   and   performance   of   annual  

assessment work.").  



          3         11 Alaska Administrative Code (AAC) 86.145(a)(1) (2014).  



                                                             -51-                                                        7011
  


----------------------- Page 52-----------------------

                                                                                                                                           4 

                         

explore for or mine minerals; a claim is contingent on DNR's "permission to mine."   But  



                                                                                                                   5 

                                                                                                                     and may preclude  

a mining claim holder has the right to use the claim's surface estate 



                                                                                              

concurrent use of that surface estate, subject to DNR's authority to issue the concurrent  



                                                                                             6  

user a land use permit or other written authorization.   A mining claim owner must,  



                                                      7                             8  

                                                                                       

however, perform annual labor,  pay annual rent,  and obtain a permit before engaging  



                                                        9  

in intensive mineral exploration.    



                                                                                                            

                       A mining claim owner's permit application must include a detailed "map  



                                                        

at a sufficient scale showing the general location of all activities and routes of travel of  



           4           See Beluga Mining Co. v. State, Dep't of                              Natural Res., 973 P.2d 570, 575- 



76 (Alaska 1999) (explaining company "had property rights in its claims, but it had no   

right to mine; its mining 'rights' were prospective and contingent").  



           5  

                                                              

                       See Gold Dust Mines, Inc. v. Little Squaw Gold Mining Co., 299 P.3d 148,  

                                                                      

165 (Alaska 2012) ("Under Alaska law, a person who acquires mining rights to located  

claims also has rights to make use of the corresponding surface estate . . . .").  



           6  

                                                                                                                       

                       See  11  AAC  96.010(a)(3)  ("On  state  land,  a  permit  or  other  written  

authorization is required for . . . an activity on land subject to a mineral or land estate  

property interest by a person other than the holder of a property interest . . . if the parties  

                                                                                                                                   

cannot agree on what constitutes reasonable concurrent use."); cf. Shope v. Sims, 658  

                                                                                                                    

P.2d 1336, 1339 (Alaska 1983) (stating possessor of mining claim has equitable claim  

                                                                                       

for quiet title and may have legal claim for ejectment "against anyone who enters on it").  

                                                         



           7           See AS 38.05.210(a) ("Labor shall be performed or improvements made  



                           

annually on or for the benefit or development of each mining claim, leasehold location,  

and mining lease on state land except that, where adjacent claims, leasehold locations,  

or mining leases are held in common, the expenditure may be made on any one claim,  

leasehold location, or mining lease.").  



           8           See AS 38.05.211(a) ("The holder of each mining claim, leasehold location,  



                                                                                

prospecting site, and mining lease, . . . shall  pay, in advance, rental for the right to  

                                                                                            

continue to hold the mining claim, leasehold location, prospecting site, and mining lease  

. . . .").  



           9           See 11 AAC 96.010, .020.  



                                                                      -52-                                                                 7011
  


----------------------- Page 53-----------------------

                              

all  equipment"  as  well  as  "a  description  of  the  proposed  activity,  any  associated  



                                                                                    10  

                                                                                        If DNR issues a permit it "is  

structures, and the type of equipment that will be used." 



                                                                                                                          

revocable for cause for a violation of a permit provision . . . and is revocable at will if  



                                                                                           11  

                                                                                               A claim owner, among  

[DNR] determines that revocation is in the state's interest." 

others, has the right to appeal DNR's decision to issue, deny, or revoke a permit.12  



                                                                             

                    We have not had much occasion  to  consider the tension between (1) a  



mining claim holder's mineral property rights and associated right to use the surface  



                                                                                                                      

estate, and (2) the State's regulatory restrictions on the mining claim holder's ability to  



                                                                                     13  

                                                                                                         

use the surface estate for exploration and development.                                  I am not suggesting that a  



          10        11 AAC 96.030(a).  



          11        11  AAC  96.040(a).    It  is  not  clear  to  me  that  we  have  considered  the  



meaning of "at will" outside the employment context.  See, e.g., Pitka v. Interior Reg'l  

                                                                                                  

Hous. Auth. , 54 P.3d 785, 789 (Alaska 2002) ("At-will employees may be terminated for  

                                                                                  

any reason that does not violate the implied covenant of good faith and fair dealing. . . .  

Breach of the implied covenant may  be either subjective or objective. . . . Disparate  

                                                          

employee treatment, terminations on unconstitutional grounds, and firings that violate  

public policy are examples of actions that may violate the objective aspect of the implied  

                                                                                                               

covenant." (footnotes omitted)).  Black's Law Dictionary defines "at will" as "Subject  

                                                                                                          

to one's discretion; as one wishes or chooses; esp. (of a legal relationship), able to be  

                               

terminated . . . by either party without cause[.]"  B 

                                                                         LACK 'S LAW DICTIONARY 149 (9th ed.  

2009).  



          12        See  11 AAC 96.110 ("An eligible person affected by a decision issued  



under this chapter may appeal that decision in accordance with 11 AAC .02.").  Neither  

                                                                          

the relevant statutes nor regulations expressly set out the State's required considerations  

          

when issuing a mineral exploration permit.  But if a permit may be revoked "at will"  

                                       

when DNR determines it is in the State's best interest, then presumably a permit will be  

issued only if DNR determines it is in the State's best interest.  



          13  

                                      

                    Cf. Beluga Mining Co. v. State, Dep't of Natural Res. , 973 P.2d 570, 574- 

                                                                   

76 (Alaska 1999) (holding that injunction  delaying claim holder's ability to receive  

                                                                                                               

permits  was  not  a  taking  because  the  company  had  no  right  to  mine;  rather,  claim  

                                                                                                              (continued...)  

                                                              -53-                                                         7011
  


----------------------- Page 54-----------------------

                                                                      

mining claim holder has a property interest in an exploration permit or that DNR must  



                                                                                                     

issue an exploration permit in every situation, but it does seem to me that if:  (1) a mining  



claim holder has a constitutionally created property interest that can be explored and  



                                                                                                                         

developed only by using the State's land surface; (2) the mining claim holder has a  



                                                                 

preferential right to reasonable use of the  State's land surface; (3) the mining claim  



                                                               

holder requests a permit for intensive use of the land surface to explore and develop its  



                                                                                                         

mineral property; and (4) DNR determines that it is in the State's best interest to allow  



                         

intensive use of the State's land surface for this purpose in an appropriate manner, then  



                                                                                                     

the  permit  for  the  surface  land  use  is  effectively  a  disposal  of  a  State  land  interest  

requiring public notice under the Alaska Constitution.14  



          13(...continued)  



holder's property interest was in the underlying claims).  



          14        Intensive use of State land surface for mineral exploration and development  



exceeds use allowed without a permit.  See  11 AAC 96.020 (enumerating low-intensity  

                                                                              

uses, including prospecting and mining without heavy machinery, allowed on State land  

without permit); Alyeska Ski Corp. v. Holdsworth , 426 P.2d 1006, 1011 (Alaska 1967)  

(explaining that article VIII, section 10 of the Alaska Constitution "reflects the framers'  

                                                               

recognition of the importance of our land resources and of the concomitant necessity for  

                                                                                      

observance of legal safeguards in the disposal or leasing of state lands").  But under  

virtually  any  standard,  the  permit  here  allowed  intensive  use  of  State  land  surface  

through drilling and removal of core samples, seismic explosions, and waste disposal (in  

                               

drill casings, enclosed drilling waste, and separate waste pits).  

                                                             -54-                                                        7011
  

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