Alaska Supreme Court Opinions made Available byTouch N' Go Systems and Bright Solutions


Touch N' Go
, the DeskTop In-and-Out Board makes your office run smoother.

 

You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Jacko v. State (7/17/2015) sp-7019

Jacko v. State (7/17/2015) sp-7019

         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, email  

                                                                                      

         corrections@akcourts.us.  



                   THE SUPREME COURT OF THE STATE OF ALASKA  



GEORGE G. JACKO and JACKIE G.                              )  

HOBSON SR.,                                                )    Supreme Court No. S-15516  

                                                           )  

                           Appellants,                     )    Superior Court Nos. 3DI-11-00053 CI  

                                                           )    and 3AN-11-11833 CI (Consolidated)  

         v.                                                )  

                                                           )    O P I N I O N  

STATE OF ALASKA, PEBBLE                                    )  

LTD. PARTNERSHIP, acting                                   )    No. 7019 - July 17, 2015  

through its General Partner, PEBBLE                        )  

MINES CORP., LAKE & PENINSULA                              )
  

BOROUGH, and KATE CONLEY,                                  )
  

in her official capacity as Clerk of the                   )
  

Lake & Peninsula Borough,                                  )
  

                                                           )
  

                           Appellees.                      )
  

                                                           )
  



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

                                                                   

                  Judicial District, Dillingham, John Suddock, Judge.  



                  Appearances:  Timothy  A.  McKeever  and  Scott  Kendall,  

                  Holmes Weddle & Barcott, P.C., Anchorage, for Appellants.  

                                                                                 

                  Joanne  M.  Grace  and  Margaret  Paton  Walsh,  Assistant  

                  Attorneys  General,  Anchorage,  and  Michael  C.  Geraghty,  

                                               

                  Attorney  General,  Juneau,  for  Appellee  State  of  Alaska.  

                                                                              

                  Matthew  Singer,  Holland  &  Knight  LLP,  Anchorage,  for  

                  Appellee  Pebble  Limited  Partnership.    No  appearance  for  

                  Appellees  Lake  &  Peninsula  Borough  and  Kate  Conley.  

                  Victoria Clark, Trustees for Alaska, Anchorage, for Amicus  

                                                     

                  Curiae Nunamta Aulukestai. Daniel L. Cheyette, Bristol Bay  

                                                                                       

                  Native Corporation and Peter Van Tuyn, Bessenyey & Van  

                                                                    


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

                    Tuyn,  LLC,  Anchorage,  for  Amicus  Curiae  Bristol  Bay  

                   Native Corporation.  



                                                                                           

                   Before:  Winfree, Stowers, and Bolger, Justices. [Fabe, Chief  

                   Justice, and Maassen, Justice, not participating.]  



                   BOLGER, Justice.  



I.        INTRODUCTION  



                   Lake and Peninsula Borough voters passed an initiative prohibiting large- 



scale mining activities that have a "significant adverse impact" on anadromous waters  



                                                                             

within  the  Borough.    Pebble  Limited  Partnership  and  the  State  of  Alaska  pursued  



                                                                                               

separate suits against the Borough, later consolidated, claiming that the initiative was  



                                                           

preempted  by  state  law.    Two  of  the  initiative  sponsors  intervened  to  support  the  



                                                                     

initiative.  The superior court granted summary judgment in favor of Pebble and the State  



                                                                    

and enjoined the Borough from enforcing the initiative.  The initiative sponsors appeal,  



                                                                                           

arguing that the dispute is unripe and that the superior court's preemption analysis was  



                                    

erroneous.  But because at least the State has articulated a concrete harm  stemming from  



                                                                                                      

the  initiative's  mere  enactment,  the  case  is  ripe  for  adjudication.                         And  because  the  



initiative purports to give the Borough veto power over mining projects on state lands  



                             

within its borders,  it seriously impedes the implementation of the Alaska Land Act,  



which  grants  the  Department  of  Natural  Resources  "charge  of  all  matters  affecting  



exploration, development, and mining" of state resources.  We therefore affirm.  



II.       FACTS AND PROCEEDINGS  



                    The Lake and Peninsula Borough (the Borough) is a home rule borough in  



                           

southwest Alaska bordering the world's largest wild sockeye salmon fishery.  Within the  



                                                 

Borough,  on  state-owned  land,  lies  what  may  be  the  world's  largest  discovery  of  



                                                             -2-                                                       7019
  


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

                                                                                                                                             

undeveloped copper ore.  Pebble Limited Partnership (Pebble) holds the mineral rights  



                                                                         

to this copper and has spent over a decade exploring the feasibility of mining.  However,  



                                                                                                                                             

because extracting the copper would likely generate significant amounts of waste, there  



                                                                                                 

is concern that the Pebble project may have detrimental environmental effects that could  

impair the long-term sustainability of the Borough's salmon industry.1  



                              In  March  2011  George  Jacko,  Jackie  Hobson,  Sr.,  and  other  Borough  



                                                                                                                       

residents proposed the "Save Our Salmon" Initiative #2 (the SOS Initiative), a borough  



                                                

initiative prohibiting the Borough Planning Commission from issuing a permit whenever  



                                                                                                                                  

a proposed resource extraction activity (a) "could result in excavation, placement of fill,  



                                                                                                                             

grading, removal and disturbance of the topsoil of more than 640 acres of land," and (b)  



                                                        

"will have a Significant Adverse Impact on existing anadromous waters."  The SOS  



Initiative defined "Significant Adverse Impact" as  



                                                                

                              a   use,   or   an   activity   associated   with   the   use,   which  

                                                                                     

                              proximately contributes to a material change or alteration in  

                                                                                                                      

                              the natural or social characteristics of a  part of the state's  

                              coastal area and in which:  



                                                            a)             the  use,  or  activity  associated  with  it,  

                                                                                                                             

                                             would have a net adverse effect on the quality of the  

                                             resources of the coastal area;  



               1              See, e.g., Nunamta Aulukestai v. State, Dep't of Natural Res.                                                                      , ___ P.3d ___,  



Op. No. 7011 at 2, 26-48, 2015 WL 3452438, at *1, *12-22 (Alaska May 29, 2015)   

(holding that certain mineral exploration permits for Pebble project were disposals of                                                                                

 State land requiring prior public notice);                                                   Hughes v. Treadwell , 341 P.3d 1121, 1123,  

 1125 (Alaska 2015) (confirming previous order for election ballot placement of "Bristol                          

Bay Forever" initiative requiring final legislative authorization for any new large-scale                                                                      

metallic sulfide mining operations in Bristol Bay Fisheries Reserve watershed);                                                                                                  Pebble  

Ltd. P'ship ex rel. Pebble Mines Corp. v. Parnell                                                         , 215 P.3d 1064, 1078-81 (Alaska 2009)     

(rejecting Pebble's argument that proposed clean water initiative would be unlawful  

special legislation despite current application only to Pebble project and one other mine).  

                                                                                                                                                     



                                                                                              -3-                                                                                     7019
  


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

                                       b)       the  use,  or  activity  associated  with  it,  

                             would  limit  the  range  of  alternative  uses  of  the  

                             resources of the coastal area; or  



                                       c)        the  use  would,  of  itself,  constitute  a  

                                                                                         

                             tolerable change or alteration of the resources within  

                             the coastal area but which, cumulatively, would have  

                             an adverse effect.  



                   The SOS Initiative also replaced the requirement that an applicant obtain  

                                                                          



"[a]ll applicable state and federal permits . . . before a development permit will be issued  

                                                 



by  the  Borough"  with  the  recommendation  that  an  "applicant  should  obtain  its  

                                                                      



development permit from the Borough prior to obtaining applicable state and federal  



permits." Additionally, the SOS Initiative authorized the Borough Planning Commission  



to indefinitely consider applications for large-scale resource extraction permits.  



                   Before the 2011 election, Pebble sued the Borough for declaratory and  

                                                                                                  



injunctive relief, contending that the SOS Initiative exceeded the Borough's "power to  

                                                       



legislate   on   matters          governing   land           use    permit      requirements"           and     was   thus  



"unenforceable as a matter of law."  Pebble asked the superior court to order the Borough  



                                                        

not to certify the SOS Initiative and to remove it from the ballot.  George Jacko and  



Jackie Hobson, Sr. (the sponsors) moved to intervene, and the superior court granted  



their motion.  Pebble, the Borough, and the sponsors moved for summary judgment, but  



the court abstained from ruling on the certification issue and deferred its evaluation of  

the SOS Initiative's validity until after the election.2  



                   In October 2011 Borough voters approved the SOS Initiative, enacting it  

                                     



as Borough law.  Pebble then amended its complaint, alleging that the enacted initiative  

                                                                                                 



was constitutionally preempted by article VIII of the Alaska Constitution and statutorily  

                                                                             



          2  

                                                                                            

                   Pebble petitioned this court to review the superior court's deferral decision.  

We declined to review the case at that time.  



                                                             -4-                                                          7019  


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

                                                      3  

preempted by the Alaska Land Act.   Pebble further claimed that the SOS Initiative   



improperly  appropriated  state  assets,  violated  equal   protection,  and  was  void  for  



vagueness.  Finally, Pebble alleged that the initiative violated the Borough's charter,  



                                                                                                                  

claiming that the Borough could not amend its municipal code in the absence of a valid  

comprehensive plan.4  



                                                                                                  

                    The State separately sued the Borough for declaratory and injunctive relief.  



Like Pebble, the State alleged that the SOS  Initiative was preempted by the Alaska  



                                 

Constitution  and  by  the  Alaska  Land  Act.    The  State  further  claimed  that  it  had  



                                                                             

"immunity from the operation of the law enacted by the SOS initiative to the extent that  



                                   

it  purports  to  prohibit  development  of  State  land  and  State-owned  minerals."    The  



superior court consolidated the State's case with Pebble's previously filed case.  



                                                 

                    Each of the parties - Pebble, the State, the sponsors, and the Borough -  



moved for summary judgment on the merits of Pebble's and the State's claims.  The  



                                                                                                                     

sponsors and the Borough also argued that the case was not ripe because Pebble had not  



yet applied for a Borough permit.  



                                                                                                      

                    The superior court granted summary judgment in favor of Pebble and the  



                                                

State.  Turning first to ripeness, the court found that there was an "actual controversy"  



because the likelihood of permit denial would have a "dissuasive effect on potential  



                                                                                          

investors" and place a "real burden" on Pebble. Likewise, the court found that the ability  



of  "local  government  entities  .  .  .  [to]  impede  natural  resource  development  via  



                                                                                          

permitting ordinances" would have a "profound[] [e]ffect[]" on "the regulatory climate  



in Alaska" and harm the State's royalty and tax revenues, regardless of whether local  



entities ultimately chose to grant or deny local development permits.  



          3         AS 38.05.005-.990.  



          4         See Lake & Peninsula Borough Charter art. VII,  7.01-.02.  



                                                             -5-                                                           7019  


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

                  On the merits, the superior court concluded that the SOS Initiative was  



                                                                                  

impliedly  preempted  by  state  statute.    The  court  noted  that  the  state  legislature  



"comprehensively  conferred  authority  over  all  aspects  of  mining  in  Alaska  to  [the  



Department of Natural Resources]" (DNR).  And the court found that the SOS Initiative  



purported to grant the Borough Planning Commission "co-equal permitting authority"  



with  DNR  -  authority  that  was  "substantially  irreconcilable"  with  the  legislature's  



intent  that  DNR  be  the  sole  gatekeeper  of  mining  permits.  Accordingly,  the  court  



                                                    

concluded that the SOS Initiative was impliedly preempted by state statute and enjoined  



the Borough from enforcing it.  

                  The sponsors appeal.5  



III.     STANDARD OF REVIEW  



                  Summary judgment is appropriate where, "view[ing] the facts in the light  

                                                                                                       



most  favorable  to  the  non-moving  party,"  "the  record  presents  no  genuine  issue  of  



                                                                                                  6 

                                                                                                     The moving  

material fact and . . . the movant is entitled to judgment as a matter of law." 



party  has  the  initial  burden  of  proving,  through  admissible  evidence,  that  summary  



         5        The Borough declined to appeal.  



         6        Olson v. City of Hooper Bay          , 251 P.3d 1024, 1030 (Alaska 2011) (citations  



and internal quotation marks omitted).  



                                                        -6-                                                   7019
  


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

                                    7                                                                               8  

judgment is warranted.    We review a grant of summary judgment de novo.                                               We also  

review the superior court's ripeness and preemption determinations de novo.9  



IV.	      DISCUSSION  



          A.	        This Dispute Is Ripe Because The State Articulates A Concrete Harm  

                     Stemming From The SOS Initiative's Mere Enactment And Because  

                                                                 

                     The Controversy Is Primarily Legal, Not Factual, In Nature.  



                     Alaska Statute 22.10.020(g) grants the superior court jurisdiction to issue  

                                                                                                       



a declaratory judgment "[i]n case of an actual controversy."  This "actual controversy"  

                                                                       



language "reflects a general limitation on the power of courts to entertain cases . . . [and]  

                                                                                              



encompasses a number of more specific reasons for not deciding cases, including lack  

                                          

of standing, mootness, and lack of ripeness."10  The sponsors contend that this case is not  

                                                                                                                      



ripe because "Pebble and the State brought [their claims to the superior court] prior to  

                                         



any application for a permit even having been filed with [the Borough]."  



                     A ripe suit for declaratory judgment will present "a substantial controversy,  

                                                                                                 

between parties having adverse legal interests, of sufficient immediacy and reality."11  

               



          7         Mitchell v. Teck Cominco Alaska Inc. , 193 P.3d 751, 760 n.25 (Alaska  



2008); Alaska R. Civ. P. 56(c) ("There must . . . be served and filed with each motion  

                             

 [for summary judgment] a memorandum showing that there is no genuine issue as to any  

                                          

material fact and that the moving party is entitled to judgment as a matter of law.").  



          8  

                                                                                                              

                     Olson, 251 P.3d at 1030 (quoting Beegan v. State, Dep't of Transp. & Pub.  

Facilities , 195 P.3d 134, 138 (Alaska 2008)) (internal quotation marks omitted).  



          9  

                                                                           

                     State v. ACLU of Alaska, 204 P.3d 364, 367 (Alaska 2009) (ripeness); cf.  

 Catalina Yachts v. Pierce, 105 P.3d 125, 128 (Alaska 2005) (preemption).  



           10  

                                     

                    Brause v. State, Dep't of Health & Soc. Servs. , 21 P.3d 357, 358 (Alaska  

                                                                 

2001) (citing Bowers Office Prods., Inc. v. Univ. of Alaska , 755 P.2d 1095, 1096 (Alaska  

 1988)).  



           11       Id. at 359 (quoting 13A CHARLES ALAN  WRIGHT ET AL .,F                               EDERAL PRACTICE  



                                                                                                                (continued...)  



                                                                -7-	                                                        7019
  


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

We have noted that there is "no set formula" for determining whether a case is ripe for  

                                                                           



                    12  

adjudication.           Instead, "[w]e examine the fitness of the issues for judicial decision and  

                                                                                                 



the hardship to the parties of withholding court consideration" in an effort to "balance[]  

                                                                

the need for decision against the risks of decision."13  



                    For example, in State v. ACLU of Alaska a group of citizens claimed that  

                                                                                                      



the state statute prohibiting marijuana possession "conflict[ed] with the privacy clause  

                                                                                                         



of the Alaska Constitution . . . to the extent that it criminalize[d] possession of small  

                       



                                                                                                  14  

amounts of marijuana in the home by adults for personal use."                                         We held this claim  

                                    



           15  

unripe.          The  citizens'  need  for  a  decision  was  "slight"  because  the  penalties  for  

marijuana possession in the federal Controlled Substances Act16 exceeded state sanctions  



and would not be affected by the case, and because the citizens did not suggest that they  

                                              



themselves were likely to be the subjects of enforcement or that they would alter their  

                                              

conduct as a result of our decision.17  Moreover, significant decisional risks were present:  

                                                        



concrete facts would have aided us in adjudicating the issue, and "[d]ue respect for the  

                                                       



          11        (...continued)  



AND PROCEDURE  3532, at 112 (2d ed. 1984)) (internal quotation marks omitted).  



          12        Id.  



          13        ACLU of Alaska , 204 P.3d at 369 (quoting Brause , 21 P.3d at 359) (internal   



quotation marks omitted).  



          14        Id . at 366 (citations omitted).  



          15        Id. at 373-74.  



          16        Pub. L. No. 91-513, 84 Stat. 1236 (1970).  



          17        ACLU of Alaska , 204 P.3d at 369-71, 374.  



                                                                -8-                                                         7019
  


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

legislative branch of government requires that we exercise our duty to declare a statute                             



                                                                                                   18  

unconstitutional only when squarely faced with the need to do so."                                      



                    Similarly, in Brause v. State, Department of Health & Social Services we  

                                                                                       



held unripe a same-sex couple's claim that Alaska's then-existing prohibition on same- 

                                                                



sex  marriage  prevented  them  from  enjoying  at  least  115  separate  rights  afforded  to  

                                                                                                      

married couples.19  We noted that the couple's brief lacked "any assertion that they ha[d]  

                                                        

been or . . . [would likely] be denied rights that [were] available to married partners."20  



And we observed that further factual development would aid our ability to decide the  

                                   

issue in light of the "difficulty and sensitivity of the issues presented."21  



                    Although  the  sponsors  accuse  the  superior  court  of  basing  its  ripeness  



                                                                               22                   23 

analysis on the dissenting opinions in ACLU of Alaska                             and Brause ,          we conclude that  



the superior court correctly applied the balancing test set forth in those cases.  Citing  



                                                                                              

Brause , the superior court noted that as a general matter, "[t]he risks of decision include  



                                                                                                

ruling  on  undeveloped  facts[]  or  on  difficult  and  sensitive  issues  that  could  be  



                                                                                     

advantageously deferred."  And the court concluded that Pebble's and the State's "need  



for decision" outweighed any countervailing risks of decision.  In particular, the court  



found  that  the  mere  passage  of  the  SOS  Initiative  "exert[ed]  a  dissuasive  effect  on  



                                                                                 

[Pebble's]  potential  investors."    Likewise,  the  court  found  that  the  ability  of  "local  



          18        Id. at 371-74.  



          19        21 P.3d 357, 360 (Alaska 2001).  



          20        Id.  



          21        Id.  (quoting  13A CHARLES ALAN  WRIGHT ET AL .,  FEDERAL PRACTICE AND  



PROCEDURE   3532.1, at 114-15 (2d ed.1984)).  



          22        204 P.3d at 374-82 (Carpeneti, J., dissenting).  



          23        21 P.3d at 360-66 (Bryner, J., dissenting).  



                                                              -9-                                                        7019
  


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

government entities statewide [to] impede natural resource development via permitting  

                               



ordinances" would have a "profound[] [e]ffect" on "the regulatory climate in Alaska  



. . . from the moment such risks are manifest in local laws, and not only at the moment  

                                                                                                   



of permit denial."  As a result, the court concluded that the "case [fell] squarely within  

                                                                                                



the broad swath of Alaska cases found . . . to be ripe for adjudication."  



                   We do not need to evaluate Pebble's claims of harm, because the State's  



                                                                         

claimed harm is sufficiently immediate and real to require a facial review of the SOS  



Initiative's validity.  In its superior court briefing, the State noted that it did "not sue[]  



     

as  a  potential  permittee."    Instead,  the  State  contended  that  the  Initiative's  mere  



enactment "inappropriately infringe[d] on its sovereign power" and therefore "impose[d]  



a concrete harm even without application."  



                                     

                   In an effort to rebut the State's claimed harm, the sponsors pointed out that  



                      

the State had not sued other boroughs regarding their land use regulations.  But the  



                                                                                                             

superior court found this lack of previous litigation unpersuasive, and we are similarly  



unpersuaded.  The State's decision not to sue other boroughs for different ordinances  



               

does not mean it cannot sue them.  As the superior court noted, "the [S]tate has scant  



incentive to challenge" other boroughs' ordinances "insofar as [they] fill[] in unregulated  



                                                                                 

interstices of state law" and only "theoretically conflict with DNR authority."  The SOS  



Initiative is different, the court concluded, because it grants the Borough regulatory  



                         

power  that  was  "co-equal"  and  "concurrent"  with  the  State's  authority  over  natural  



resource policy .  



                    On appeal the sponsors' ripeness arguments largely pertain to Pebble's  



                  

claims and  do not directly address the State's sovereignty argument.  Critically, the  



sponsors'  ripeness  discussion  does  not  address  the  superior  court's  finding  that  the  



enactment of the SOS Initiative hinders the State's ability to regulate natural resource  



                                                            -10-                                                       7019
  


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

                                                                      

policy.    This  finding  provides  adequate  and  independent  support  for  the  court's  



conclusion that this controversy is ripe.  



                   The sponsors also point to our suggestion in ACLU of Alaska that even a  



                                                                                                                           24  

                                                                   

facial challenge to a statute "could be aided by one or more concrete factual scenarios." 



But it is unclear that additional factual scenarios would aid our adjudication of the merits  



                                                                                                            

in this case because the underlying issues are relatively straightforward and purely legal:  



does the SOS Initiative grant the Borough the power to exercise coequal permitting  



authority with the State regarding the utilization of natural resources, and, if so, is such  



                                                                                                 

authority preempted by state statute or by the Alaska Constitution? The Borough's grant  



or denial of a development permit would shed little if any light on these questions.  



                   Finally, the sponsors accuse the superior court of "rest[ing] its ripeness  



                                                                                                                  25  

determination entirely on . . . facts . . . obtained in an ex parte investigation."                                   This  



allegation pertains to the court's observation that  



                    [i]n  September  of  2013  the  British  mining  giant  Anglo  

                   American  withdrew  from  [Pebble],  abandoning  its  $541  

                                                                   

                   million  investment  and  citing  a  need  to  focus  on  more  

                   promising  prospects.    Anglo  American's  departure  left  

                   Northern  Dynasty  Minerals  the  sole  stakeholder  in  the  

                                                                                                

                   project.  Northern Dynasty announced that it would seek a  

                                                                              

                   replacement partner.  



The sponsors point out that the news of Anglo American's withdrawal from the Pebble  

                                                                    



project became public "five days after oral argument" and was therefore "never made a  

                                                               



part of the record."  (Emphasis in original.)  As a  result, the sponsors argue, "[t]he  



          24       204 P.3d at 373 (citing Sands ex rel. Sands v. Green, 156 P.3d 1130, 1132- 



34 (Alaska 2007)).  



          25       See  Alaska  Code  Jud.  Conduct  3(B)(12)  ("Without  prior  notice  to  the  



parties and an opportunity to respond, a judge shall not engage in independent ex parte  

                                            

investigation of the facts of a case.").  



                                                            -11-                                                      7019
  


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

parties . . . were precluded from any opportunity to present argument on these points."  



                                                                                              

But though there is some validity to this criticism with regard to Pebble's claims of  

harm,26 it has no relevance to the State's claimed harm to its regulatory authority.  



                                                                                                  

                   For these reasons, we agree with the superior court's conclusion that this  



controversy was ripe for adjudication.  



                                                                                                    

          B.	      The SOS Initiative Is Impliedly Preempted By State Law Because The  

                                                                                                

                   Borough's Ability To Unilaterally Veto A Project Authorized By DNR  

                                                                                                               

                   Seriously Impedes The Regulatory Structure Of The Alaska Land Act.  



                   Article X, section 11 of the Alaska Constitution grants home rule boroughs  



"all legislative powers not prohibited by law or by charter."  In Jefferson v. State we  



noted that although "home rule powers are intended to be broadly applied," a municipal  



                                                                                          27  

                                                                                              But we held that the  

ordinance  may  be preempted or invalidated by state statute. 



                                         

statutory "prohibition must be either by express terms or by implication such as where  



                                               

the statute and ordinance are so substantially irreconcilable that one cannot be given its  

substantive effect if the other is to be accorded the weight of law."28  



                                                                                       29  

                                                                                                

                   Though Jefferson involved express preemption,                          we applied its holding to  

                                                                                                        30  The plaintiff  

an implied conflict of law four years later in Johnson v. City of Fairbanks .  



in Johnson challenged a Fairbanks City Charter provision that shielded the city from  



                                   

liability for negligence unless a plaintiff submitted written notice to the city within 120  



          26       See ALASKA  COMM 'N ON JUDICIAL CONDUCT , ADVISORY OPINION 2014-01  



(discussing whether independent Internet research "can be considered 'judicial notice'  

                                                              

and when [such] research become[s] improper factual investigation").  



          27       527 P.2d 37, 43 (Alaska 1974).  



          28       Id.  



          29       Id.  



          30       583 P.2d 181, 185-87 (Alaska 1978).  



                                                            -12-	                                                     7019
  


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

                               31                                                                                                 32 

days of the incident.    Because the statute of limitations for a tort action is two years,   



we  concluded  that  Fairbanks's   notice  requirement  was  impliedly  preempted  by  AS  



                                                                                                  33  

09.65.070, which authorizes lawsuits against local governments.                                       Although there was  



no express preemption - notice and filing are technically two separate issues, and the  

                                                                         



 120-day notice provision did not require plaintiffs to file their complaints within that  



period  -  we  concluded  that  the  city's  notice  requirement  "seriously  impede[d]  



                                                                      

implementation of th[e] statewide legislative policy" that "a plaintiff's commencement  



                                                                     

of  action  is  the  affirmative  step  necessary  to  assure  that  his  assertion  of  a  claim  is  

timely."34  



                    Under  the  implied  preemption  standard  articulated  in  Jefferson   and  



Johnson , we must determine whether the SOS Initiative is so substantially irreconcilable  

                                                          



with a state statute that the "one cannot be given its substantive effect if the other is to  

         

be accorded the weight of law."35  



                    Article  VIII,  section  2  of  the  Alaska  Constitution  states  that  "[t]he  



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."    And  the  legislature,  through  its  passage  of  the  Alaska  Land  Act,  has  

                                                                                                                       



delegated to DNR "charge of all matters affecting exploration, development, and mining  

                                                                                               



          31        Id. at 182-83.  



          32        AS 09.10.070(a).  



          33        Johnson , 583 P.2d at 187.  



          34        Id.  



          35        Id. at 184 (quoting Jefferson v. State , 527 P.2d 37, 43 (Alaska 1974)).  



                                                               -13-                                                         7019
  


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

of the mineral resources of the state, . . . and the administration of the laws with respect           



                                   36  

to all kinds of mining."               The legislature has further clarified that  



                                                                          

                    [DNR]  is  the  lead  agency  for  all  matters  relating  to  the  

                    exploration,   development,   and   management   of   mining,  

                    and . . . shall coordinate all regulatory matters concerning  

                    mineral  resource  exploration,  development,  mining,  and  

                                 

                    associated activities.  Before a state agency takes action that  

                                                     

                    may       directly       or     indirectly        affect      the     exploration,  

                                                  

                    development,  or  management  of  mineral  resources,  the  

                    agency shall consult with and draw upon the mining expertise  

                                   [37] 

                    of [DNR].  



But while DNR has broad power to regulate mining throughout the state, an "act of the  



                                                                                                  

state legislature" is necessary before DNR may close any area of state land larger than  

640 contiguous acres to mining.38  



                                                                                                                   

                    Here  the  superior  court  concluded  that  the  state  legislature,  "[b]y  so  



                                                                       

definitively  conferring  gatekeeper  permitting  authority  upon  DNR,  .  .  .  impliedly  



                                                                                                         

prohibited  local  governments  from  assuming  a  concurrent  role."                                    The  court  also  



concluded that "to the extent . . . the SOS Initiative may be seen as potentially closing  



the entire [Borough] watershed to large scale mineral development, it would violate the  



clear purpose of AS 38.05.300" - the provision requiring DNR to obtain legislative  



approval before completely closing off large tracts of land to resource extraction.  



                    The sponsors argue that these conclusions were erroneous.  They contend  



                                        

that "there is no expressed or implied preemption of [the Borough's] authority to regulate  



                                                                        

large-scale resource extraction in the manner the SOS Initiative mandates," because "the  



          36        AS 27.05.010(a).  



          37        AS 27.05.010(b).  



          38        See AS 38.05.300(a).  



                                                             -14-                                                        7019
  


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

SOS Initiative does not confer [the Borough] with 'co-equal permitting authority' with  



                                                   39  

the state or federal government."                      We disagree.  



                                                                                                            

                    According to its statement of purpose, the SOS Initiative was designed "to  



prevent the development of any large-scale resource extraction activity (including mining  



activities)  which  would  destroy  or  degrade  salmon  habitat."    To  accomplish  this  



                                                                                                                             

objective, the SOS Initiative requires the Borough to deny a development permit to any  



                                                                    

large-scale resource extraction activity that would have a significant adverse impact on  



                                                              

existing anadromous waters - without regard to whether such impact can be mitigated.  



                                                                                                            

This stands in stark contrast to other resource development permitting processes, which  



                                                                                                                         40  

compare the adverse impacts of a project with potential mitigation measures.                                                 As a  



result, the Borough's permitting standard is now more stringent than the State's.  



                     The sponsors contest this point, claiming that the SOS Initiative "merely  



                                         

inserts an additional local layer into the permitting process" in "an effort to minimize the  



          39         The sponsors make two additional arguments: first, that the SOS Initiative                  



does not close the entire Borough watershed to large-scale mineral development, and  

second, that the superior court's decision was inappropriately paternalistic and offensive  

                                                                                                                  

toward Borough officials.  But the superior court did not  find that the SOS Initiative  

closed the entire Borough watershed to large-scale resource extraction, and our analysis  

                                                                               

does not depend upon such a finding. And the superior court's statements about political  

                                                                  

forces influencing Borough officials are beside the point: the superior court's ruling was  

                                                                                         

based on a conclusion that Borough officials could exercise veto power over the Pebble  

                                                                                            

project, not a finding that they necessarily would.  



          40  

                                                                                          

                     One of Pebble's experts stated in an affidavit, "Typically, an environmental  

                                            

impact assessment involves developing a clear understanding of baseline conditions and  

a clear understanding of how those conditions will be changed or affected by a project.  

From  this  follows  an  evaluation  of  whether  those  changes  are  acceptable  or  can  be  

                                                           

mitigated.  It does not appear that the SOS Initiative allows room for such [mitigation]  

                                  

analysis."  Although  the sponsors argued that "[p]resumably, appropriate mitigation  

measures  could  qualify  an  otherwise  ineligible  project,"  they  did  not  present  any  

evidence to support this assertion.  



                                                               -15-                                                          7019
  


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

                                                                 

                                                                                     

adverse environmental effects of large-scale mining on the [B]orough and its residents."  



                    

But as noted above, the SOS Initiative sets a high standard for Borough development  



                                     

permits and would allow the Borough to veto projects otherwise authorized by state and  



                                                                                                           

federal regulators.  Indeed, the SOS Initiative goes so far as to suggest that an "applicant  



                                                         

should obtain its development permit from the Borough prior  to obtaining applicable  



                                      41  

                                          (Emphasis added.)  Although the sponsors correctly note  

state and federal permits."                                            

that the "prior to" language is not mandatory,42 this language demonstrates that the SOS  

                                                  



Initiative was intended to elevate the importance of the Borough in the overall permitting  



scheme.  



                   For these reasons, the superior court was correct to conclude that the SOS  

                                                                                           



Initiative, if upheld, would represent a "power shift" requiring DNR - the state agency  

                                                                                                        



tasked by the legislature to regulate resource extraction - "to share power with a local  

                                                                  



government that . . . may ignore DNR's rulings.  Under such a scheme, DNR [would] no  

                             



longer function[] as the sole gatekeeper" in granting and denying mining permits.  Such  

                                                                                                                      



a power shift is impliedly preempted by AS 27.05.010's provision that DNR "has charge  



of all matters affecting exploration, development, and mining of the mineral resources  

of the state."43  



          41       This Borough-first language replaces language which suggested that the  



Borough would defer to state and federal permit processes.     The  repealed language  

stated:  "All activities shall be conducted in conformance with all state and/or federal  

permit stipulations and conditions.  All applicable state and federal permits must be  

obtained by the applicant before a development permit will be issued by the Borough."  

Former Lake & Peninsula Borough Municipal Code 09.07.050(B) (2010) (emphasis  

added).  



          42       The amended provision uses the word "should" instead of "must."  



          43       Although the superior court concluded that the  SOS  Initiative is impliedly  



                                                                                                          (continued...)  



                                                            -16-                                                      7019
  


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

                   The sponsors argue that this preemption analysis is incorrect.  Citing Pebble  



                                                                                44                                  45 

                                                                                     

Ltd. Partnership ex rel. Pebble Mines Corp. v. Parnell                              and Brooks v. Wright ,             they  



                                                                                                          

contend  that  "[i]t  has  been  unequivocally  established  by  this  Court  that  the  state  



                                                                         

legislature does not have exclusive authority over the state's natural resources," and that  



                                                 

"natural  resource  management  is  an  appropriate  subject  for  a  public  initiative."  

(Emphasis in original.)  But these cases, which dealt with statewide ballot initiatives,46  



                                                                         

are easily distinguished.  Article XII, section 11 of the Alaska Constitution provides that  



                                                                               

"[u]nless clearly inapplicable, the law-making powers assigned to the legislature may be  



                                                      

exercised by the people through the initiative, subject to the limitations of Article XI."  



                                                                    

And  because  "natural  resource  management  is  not  .  .  .  'clearly  inapplicable'  to  the  



initiative process," we have upheld the ability of voters to pass statewide initiatives to  

exercise the law-making powers of the state legislature in this area.47  But we have never  



held that a borough may exercise the law-making powers of the state legislature through  



initiative, nor would such a holding make any sense.  



                   Relatedly, the sponsors claim that we have "repeatedly found that the State  

                                                                                  



does not have exclusive law-making powers over natural resources merely because of  



its management role under Article VIII" and that we have "accepted municipal regulation  



          43       (...continued)  



preempted  by  state  law,  the  initiative  also  appears  to  be  expressly  preempted  by  

AS 38.05.135(a), which states:  "Except as otherwise provided, valuable mineral deposits  

in  land  belonging  to  the  state  shall  be  open  to  exploration,  development,  and  the  

                             

extraction of minerals."   



          44       See 215 P.3d 1064, 1077 (Alaska 2009).  



          45       See 971 P.2d 1025, 1033 (Alaska 1999).  



          46       See Pebble Ltd. P'ship, 215 P.3d at 1068-69; Brooks , 971 P.2d at 1026.  



          47       Brooks , 971 P.2d at 1030, 1033.  



                                                            -17-                                                      7019
  


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

of mining as appropriate."  (Emphasis omitted.) They cite  Owsichek v. State, Guide  



                                              48                                                        49 

Licensing    &    Control   Board ,                Liberati   v.   Bristol   Bay   Borough ,                  and   Thane  

                                                                               50  for  these  propositions.             But  

Neighborhood  Ass'n  v.  City  &  Borough  of  Juneau                                             



                                                                                                                        51  

Owsichek concerned a separate constitutional provision - the Common Use Clause                                            -  

                                

                                              52  Liberati is similarly inapposite because we concluded  

and did not address preemption.  

                                                               



that the ordinance at issue there had "no regulatory component" and therefore did not  

             

directly or indirectly conflict with the State's regulatory policies.53  And neither party in  

                                                                   

Thane Neighborhood Ass'n raised the issue of state statutory preemption;54 therefore we  

                                                                    



did not "accept municipal regulation of mining as appropriate" when such regulation  



seriously impedes state policy.  



                    The sponsors next argue that the superior court misconstrued our holding  

                                                                     



in Johnson , which they contend was "premised upon the fact that 'the local enactment  

                                                                                                        



[must] yield if it directly or indirectly impede[s] implementation of statutes which [seek]  

                                        

to further a specific statewide policy .' "55   (Emphasis and first alteration in original.)  The  

                                                                                                                         



sponsors state that "there is no specific statewide policy that precludes [the Borough]  



from  implementing  and  carrying  out  the  SOS  Initiative  as  an  ordinance  under  the  

                                                          



          48        763 P.2d 488 (Alaska 1988).  



          49        584 P.2d 1115 (Alaska 1978).  



          50        922 P.2d 901 (Alaska 1996).  



          51        Alaska Const. art. VIII,  3.  



          52        See 763 P.2d at 496-98.  



          53        584 P.2d at 1121-22.  



          54        See generally 922 P.2d 901.  



          55        See Johnson v. City of Fairbanks, 583 P.2d 181, 185 (Alaska 1978).  



                                                            -18-                                                       7019
  


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

[Borough]  Code."    We  disagree.    The  superior  court  not  only  accurately  described  



                                                                    

Johnson 's holding but also quoted Johnson 's discussion of the specific state policy at  



                                                              

issue in that case.  More importantly, the SOS Initiative impedes at least two separate,  



specific state policies.  The state legislature has specified that "[e]xcept as otherwise  



provided,  valuable  mineral  deposits  in  land  belonging  to  the  state  shall  be  open  to  



                                                                                       56  

exploration, development, and the extraction of minerals."                                 And the legislature has  



specified that DNR "has charge of all matters affecting exploration, development, and  



                                                                                                                 

mining of the mineral resources of the state . . . and the administration of the laws with  

respect to all kinds of mining."57  



                    Finally,  the  sponsors  argue  that  the  SOS  Initiative  does  not  confer  the  



Borough  with  "co-equal  permitting  authority"  because  the  Borough  has  regulated  



                              

resource extraction for decades, and because other boroughs, including the City and  



                                                                                         

Borough of Juneau, the Fairbanks North Star Borough, and the North Slope Borough,  



                                                                                                      

have enacted land use regulations that affect resource extraction.  The sponsors contend  



                                                                                  

that the SOS Initiative - like these other ordinances - falls under the authority granted  



by AS 29.35.180(b), which requires "home rule borough[s] [to] provide for planning,  



                                                                                           

platting, and land use regulation."  But the general provision of authority to home rule  



boroughs to regulate land use does not override the specific delegation of authority to  



          56        AS 38.05.135(a).  



          57        AS  27.05.010(a).    Additionally,  article  VIII,  section  2  of  the  Alaska  



Constitution specifies that the state legislature is responsible for "provid[ing] for the  

                                         

utilization,  development,  and  conservation  of  all  natural  resources  belonging  to  the  

State . . . for the maximum benefit of its people."  The superior court spent little time  

analyzing  this  provision,  however,  because  the  court  decided  the  case  on  statutory  

                                                                                               

grounds.  



                                                            -19-                                                       7019
  


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

                                                            58  

DNR to regulate resource extraction.                            And the borough regulations that the sponsors  



                                                                                                                

cite are not before us in this case; they would be subject to review if the State chooses  



to challenge them.  



                     The   legislature   has   granted   DNR   "charge   of   all   matters   affecting  



                                                                                                                         59  

                                                                                                                              Because  

exploration, development, and mining of the mineral resources of the state." 



the SOS Initiative allows - and in some cases requires - the Borough to prohibit  



                                   

mining projects that would otherwise be authorized by DNR, the initiative seriously  



                                                                                                                 

impedes  the  regulatory  process  set  forth  by  the  Alaska  Land  Act  and  is  therefore  



                                          60                                                                                      61 

preempted by that statute.                    Accordingly, the SOS Initiative cannot be enforced.  



           58         Cf. Norville v. Carr-Gottstein Foods Co.                       , 84 P.3d 996, 1004 (Alaska 2004)  



("In contracts, as in statutes, where one section deals with a subject in general terms and                 

another deals with a part of the same subject in a more detailed way, the two should be     

harmonized if possible; but if there is a conflict, the specific section will control over the  

general." (quoting In re Estate of Hutchinson , 577 P.2d 1074, 1075 (Alaska 1978))  

                                                                                                                  

(internal quotation marks omitted)); see also ANTONIN  SCALIA &   BRYAN A.   GARNER ,  

R 

                             

   EADING         LAW :   THE          INTERPRETATION                OF     LEGAL         TEXTS         185      (2012)        ("[T]he  

[general/specific] canon does apply to successive statutes.").  



           59        AS 27.05.010(a).  



           60  

                                                                                                                          

                      Citing  Macauley  v.  Hildebrand ,  the  State  also  argues  that  home  rule  

boroughs  are  constitutionally  preempted  from  acting  in  the  area  of  natural  resource  

management without express authorization from the state legislature.   See 491 P.2d 120,  

                                                                                    

122 (Alaska 1971); see also Alaska Const. art. VIII,  2 ("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." (emphasis  

                                               

added));  accord  Jefferson  v.  State,  527  P.2d  37,  44  (1974)  ("[When]  the  state  

constitution . . . vest[s] the legislature with pervasive control over [an area of law,] . . .  

                                                                                                                         

home rule municipalities [are] precluded from exercising power [in that area] unless, and  

                                         

to the extent, delegated by the state legislature . . . ." (citing Macauley , 491 P.2d at 120- 

                                                                             

22)).      Although   the   State   makes   a   compelling   argument   that   natural   resource  

management is an area of "pervasive state authority" under the factors articulated in  

                           

                                                                                                                     (continued...)  



                                                                  -20-                                                             7019
  


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

V.       CONCLUSION  



                  We AFFIRM the judgment of the superior court.  



         60        (...continued)  



Macauley , we do not need to reach this constitutional issue.  



         61       Pebble also argues that the SOS Initiative is invalid because it exceeds the  



borough  assembly's  power  to  legislate  and  because  it  improperly  appropriates  state  

                                                               

assets in violation of article XI, section 7 of the Alaska Constitution.  Because we agree  

                                                                                                

with the superior court's conclusion that the initiative is preempted by state statute, we  

                                                                            

do not need to reach these issues.  



                                                         -21-                                                   7019
  

Case Law
Statutes, Regs & Rules
Constitutions
Miscellaneous


IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights
Soteria-alaska
Choices
AWAIC